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CHILD SEXUAL ABUSE- The Law and the Lacuna

CHILDLINE India Foundation » DOCUMENTS & REPORTS » Cause Viewpoint » CHILD SEXUAL ABUSE- The Law and the Lacuna

MARCH 2009, Ganjam, Orissa.

Nine year old Roja was on her way to deliver her father's lunch, it was a routine; when a 24 year old man abducted her. He not only raped her, but also banged her head repeatedly against a coconut tree. Confident that she will not survive, he left nonchalantly.

APRIL 2009, Ganjam, Orissa.

After spending a month in a neurological ward of a local Medico Hospital , Roja was home now, where CHILDLINE looked after her education while searching for a long term rehabilitation and care.

Roja is still suffering from post-traumatic stress disorder and her parents worry about her future, after the exploits of her rapist. That rapist is serving a sentence in jail under Section 347 and 372 of Indian Penal Code (IPC).

IPC Section 347 concerns 'wrongful confinement' and a person found guilty is punished with imprisonment; which can extend up to three years maximum and fine. Whereas, Section 372, in Central Government Act involves 'selling minor for the purposes of prostitution' , and a person found guilty can be imprisoned for a maximum of ten years with or without fine.

Points to notice in this case- study:

•  India doesn't have a well-defined comprehensive law concerning Child Sexual Abuse.

•  In a case, where penetrative sex is not involved, person can be charged under toothless Sections like Section 347 of IPC, and can get away with mere three years of sentence and fine.

•  A victim not only suffers physical injury but faces psychological problems too.

Top four stats about child sexual abuse:

•  53.22% children in India are reported to be sexually abused, in a study by the Ministry of Women and Children Development

•  In the same study, out of above mentioned number 50% had been abused by people who they knew or were held in a position of trust and responsibility.

•  According to UNICEF, across the world, more than 150 million girls and 70 million boys have witnessed forced sexual intercourse or other forms of violence involving physical contact. 

•  About 19% of the world's children live in India constituting 42% of India 's population.

What is Child Sexual Abuse?

World Health Organization (WHO) ( www.who.int/) defines child sexual abuse as, 'inappropriate sexual behavior with a child' and 'involving a child in sexually activity that he or she doesn't fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.'

In Short, following actions are considered as Child Sexual Abuse:

(According to a report by WHO)

•  Fondling a child's genitals

•  Making the child fondle the adult's genitals

•  Intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation

•  Inducement or coercion of child in unlawful activity.

•  The exploitative use of child in prostitution or other unlawful sexual practices

•  The exploitative use of children in pornographic performances and materials.

Existing Law:

Goa Children's Act, 2003, is the only specific piece of child abuse legislation. Child sexual abuse might be prosecuted as:

•  I.P.C. (1860) 375- Rape

•  I.P.C. (1860) 354- Outraging the modesty of a woman

•  I.P.C. (1860) 377- Unnatural offences

•  I.P.C. (1860) 511- Attempt

Loopholes in the existing law:

•  They aren't specific to children's needs.

•  Laws have no provisions for repeat offenders

•  What about the teenagers who choose to have sex with each other?

•  No provisions for bail-able and non bail-able offences and lots more.

•  The age of Child varies in every law.

•  IPC 375 doesn't protect male victims or anyone from sexual acts of penetration other than "traditional" peno-vaginal intercourse.

•  IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a compoundable offence. Moreover, what about the outrage of the modesty of a male child?

•  In IPC 377, the term "unnatural offences" is not defined. It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalize sexual abuse of children.

What legal changes are required?

What we need now is a law that is comprehensive, that makes sure that loopholes in existing laws are closed, be gender neutral, specifically address circumstances of child sexual abuse and the special needs of children, establish guidelines to protect child victims and guide them through the legal process and address their needs, increase reporting and disseminate knowledge of children's rights, impose mandatory reporting , protect children and reporters from harmful exposure through confidentiality guidelines , toll the statute of limitations to encourage reporting of abuse, compensate victims. 

A silver lining:

A High Powered Committee was set up to examine the issues relating to review of Rape Laws, under the Chairmanship of Union Home Secretary. The Committee has formulated the draft "Criminal Law (Amendment) Bill, 2010", incorporating the points agreed at the meetings of the High Powered Committee.

It suggests the following changes in the existing law:

•  Section 376C

(1) A person is said to commit "sexual abuse of minor" against a minor under the age of eighteen years if the person- Sexual abuse of minor;

•  penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor. Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

Work Done so far by CHILDLINE India Foundation.

CHILDLINE India Foundation (CIF) fought many court battles with child sex offenders, with one case in the Supreme Court too. These trials highlighted the lack of appropriate laws concerning the offence. Therefore, we approached the Maharashtra State Government in 2009 and met RR Patil, Deputy Chief Minister, Maharashtra , to introduce a new law.

  To research the gaps in the existing Indian Laws on Child Sexual Abuse, CIF worked with Michelle Mendonca from the International Justice Mission and Valerie Gaimon, an American Lawye,r who volunteered with CHILDLINE India Foundation.

 

Thus, steps were taken to form a new law on Child Sexual Abuse which were presented to the National Commission for Protection of Child Rights (NCPCR) a consultation set up on January 19, 2010.

According to the recommendations presented by CHILDLINE India Foundation, an Ideal Child Sexual Abuse Law would:

•  Close the above mentioned loop-holes in existing laws.

•  Specifically address circumstances of sexual abuse and the special needs of children.

•  Be gender neutral.

•  Deter crime through appropriate penalties and keeping a track of sexual offenders so they are not in contact with children.

•  Establish guidelines and basic protocol to protect child victims, guide them through legal process and address their needs.

•  Increase reporting and disseminate knowledge of children's rights.

•  Impose mandatory reporting on professions ion contact with children.

•  Protect children and reporters from harmful exposure through confidentiality guidelines.

•  Toll the statue of limitations to encourage reporting of abuse.

•  Compensate victims.

This proposed new law will not only cover the substantive aspects but also the procedural aspects of cases related to Child Sexual Abuse.

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