CHILD Protection & Child Rights » Vulnerable Children » Children's Issues » Child Sexual Abuse » Child Sexual Abuse and Law
Excerpts from Dr. Asha Bajpai's chapter on 'Child Sexual Abuse and Law'*
It is a fact that millions of girls and boys worldwide are being sexually abused within homes and outside. They are abused by families and known persons. The perpetrator can be anyone who exploits the child's vulnerability to gain sexual gratification. It involves mental, physical and emotional abuse of a child through overt and covert sexual acts, gestures and disposition - when informed consent or resistance by the child victim to such acts is not possible. It can also include activities which do not involve direct touching.
A form of child sexual abuse in India are child marriages. In Rajasthan on Akshya Tritiya day which is popularly known as the Akha Teej, hundreds of child marriages are openly performed. The sexual abuse of children not only has damaging and long-term impact on the victim, but also affects the families, communities, and society at large. Like any crime that continues to go unchecked, the sexual abuse of children- both within our homes and outside is an issue of grave concern and directly suggests the health of a society as a whole.
Laws Relating to Child Sexual Abuse:
- In 2012, the Indian Parliament passed the Protection of Children from Sexual Offences Act. Click here to download the Act.
- Model Guidelines for POCSO by MWCD
Highlights of the 'Protection of Children from Sexual Offences Act 2012':
- The Act defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.
- This is the first time that an Act has listed aspects of touch as well as non touch behaviour (eg: photographing a child in a obscene manner) under the ambit of sexual offences.
- The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences
- The attempt to commit an offence under the Act has also been made liable for punishment for upto half the punishment prescribed for the commission of the offence.
- The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
- For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused.
- The media has been barred from disclosing the identity of the child without the permission of the Special Court.
Before the Bill was passed, cases of child sexual abuse were dealt under the following sections under IPC:
- Section 375 that defines rape.
- Section 376 of the Indian Panel Code provides for the punishment of rape which shall not be less than seven years but which may extend to ten years, unless the women raped is his own wife and is not under twelve years of age in which case, he shall be punished with imprisonment for a term which may extend to two years or with fine or both. When the girl is under 12 years or where the rapist is a person in authority (in a hospital, children's home, a police station etc.), the punishment is greater.
- The other IPC provisions that are invoked is relating to unnatural practices is Section 377 This is generally invoked when boy children are sexually abused. Although forcible sex with a boy is an act of rape, the rape law of the country under IPC does not cover it.
- Outraging the Modesty of a woman or a girl is dealt with in Section 354
- For insulting the modesty of woman is in Section 509
- Obscenity and pornography are dealt under the Young Persons (Harmful Publications) Act , 1956. .A young person means a person under the age of 20 years. It is an offence to sell, let, hire, distribute or publicly exhibit harmful publications.
- Under Section 67 of the Information Technology Act, 2000, publication and transmission of pornography through the internet is an offence.
Inadequacies in IPC Laws
The ordinary criminal laws are totally inadequate to protect the children, who are victims of sexual abuse. These sections do not include the common forms of child sexual abuse nor their impact on the children. The restrictive interpretation of "penetration" in the Explanation to Section 375 is an obstacle to cases of CSA. Explanation to Section 375 does not treat forced sexual intercourse by a husband against the wife (above 15 years) as an offence. Section 376(A) also has the same reasoning. The Indian Penal Code needs to be reviewed.
The existing definitions of rape and molestation should be suitably amended to adequately address the various types of sexual assault on children. In fact, sexual assault on children should be made a specific offence requiring stringent punishment. There is no provision to deal with the trauma of the child. The testimony of the child victim is not recorded sensitively by the police/judge/prosecutor magistrate. The recording of the statements of child victims need a special provision in the CrPC. There is no such provision at present.
Trained personnel should interview the victim children. The language of the child is to be understood by the legal system. Under the present system the natural habitat of the victim is generally disturbed, which is a source of trauma to the child. The delays in the system at every stage further add to the trauma of the child victim. There are several cases pending in the courts as the trial goes on for years. In several cases the girls have become adults by the time the final judgment comes through. The investigation of trial of sexual offences have to be made time bound. Special courts need to be set up. There is a need for a special provision relating to medical examination of child victim in the CrPC. The absence of a proper medical report in the case of a sexual assault goes against the child assaulted the mental health of victim needs to be attended to, as the trauma has to be reduced.
* Dr. Asha Bajpai is a Professor at the Tata Institute of Social Sciences, Deonar, Mumbai. She is affiliated with the Centre for Socio-Legal Studies & Human Rights. She has completed her L.L.M., M.Phil and Ph.D. from National Law School of India University, Bangalore.