Sei sulla pagina 1di 18

Child Sexual Abuse: An Ugly Breach of Our Commitment to

Protect the Innocent.


Rohan Kashyap**

I am filled with shame, disgust, guilt and low self-esteem. What


I thought all along was affection, I realize now - after 12 years
of sexual relationship with my uncle - was sexual abuse.1

- Anjana

Abstract

The phenomenon of sexual abuse and exploitation of children is not new, and the
problem is severe to the extent that children are sold, rented out and sexually
abused by adults everywhere. While it is almost impossible to obtain accurate
figures, it is a fact that millions of girls and boys worldwide are being used in
prostitution, pornography, trafficking, and other forms of sexual abuse and
exploitation. There is no uniformly accepted definition of child abuse. There have
been a number of definitions of the phrase ‘child sexual abuse’ (CSA). It could be
termed as an activity relating to the engaging of sex organs for sexual
gratification, which takes advantage of, violates or deceives children or young
people. CSA has been defined as any kind of physical or mental violation of a
child with sexual intent, usually by a person who is in a position of trust or power
vis-à-vis the child. CSA is also defined as any sexual behavior directed at a
person under the age of 16 years, without informed consent.
As per some other definitions, CSA is any kind of physical or mental violation of
a child with a sexual intent, usually by an elder person, who is in possession of
trust or power vis-à-vis the child (Bajpai, 2006). CSA becomes exploitation when
a third party benefits through a profit. Commercial sexual exploitation of children
commonly refers to the use of a child for sexual purposes in exchange for cash or
in-kind favors between the client/customer and intermediary or agent who profits
from such trade in children. Those who profit from such trade in children include
a wide range of persons, including parents, family members, agents, and
community members, largely men, but also women. It includes child prostitution,
through trafficking, child sex tourism and child pornography.

**
Third year student, Chotanagpur Law College, Ranchi, Jharkhand. E-mail: rohancnlc@gmail.com
1
Quoted at: Frontline, Volume 20 - Issue 21, October 11 - 24, 2003 India's National Magazine from the
publishers of THE HINDU.

1
Introduction

The subject of child sexual abuse is still a taboo in India. There is a conspiracy of
silence around the subject and a very large percentage of people feel that this is a largely
western problem and that child sexual abuse does not happen in India. Part of the reason of
course lies in a traditional conservative family and community structure that does not talk
about sex and sexuality at all. Parents do not speak to children about sexuality as well as
physical and emotional changes that take place during their growing years. As a result of this,
all forms of sexual abuse that a child faces do not get reported to anyone. The girl, whose
mother has not spoken to her even about a basic issue like menstruation, is unable to tell her
mother about the uncle or neighbour who has made sexual advances towards her. This silence
encourages the abuser so that he is encourage to continue the abuse and to press his
advantage to subject the child to more severe forms of sexual abuse.
Very often children do not even realize that they are being abused. In a study on
Women's Experiences of Incest and Childhood Sexual Abuse conducted by RAHI, some of
the respondents have stated that till the questionnaire was administered to them they did not
realize that they had been abused as children. They had masked the incident as a painful and
shameful one not to be ever told to anyone. Some deep seated fear has always moved Indian
families to keep their girls and their 'virginity' safe and many kinds of social and cultural
practices have been built around ensuring this. This shows that there is knowledge of the fact
that a girl child is unsafe though nobody talks about it. However this fear is only around girls
and the safety net is generally not extended to boys. There is evidence from this as well as
other studies that boys are equally at risk. As defined by the World Health Organization,
child sexual abuse is the involvement of a child in sexual activity that he or she does not fully
comprehend, is unable to give informed consent to, or that violates the laws or social taboos
of society. Child sexual abuse is evidenced by this activity between a child and an adult or
another child who by age or development is in a relationship of responsibility, trust or power,
the activity being intended to gratify or satisfy the needs of the other person. This may
include but is not limited to:
 The inducement or coercion of a child to engage in any unlawful activity
 The exploitative use of a child in prostitution or other unlawful sexual practices
 The exploitative use of children in pornographic performances and materials
However, for the purpose of this study, sexual abuse is defined as severe forms of sexual
abuse and other forms of sexual abuse.

2
Severe forms of sexual abuse include:
a) Assault, including rape and sodomy
b) Touching or fondling a child
c) Exhibitionism- Forcing a child to exhibit his/her private body parts
d) Photographing a child in nude
Other forms of sexual abuse include:
a) Forcible kissing
b) Sexual advances towards a child during travel
c) Sexual advances towards a child during marriage situations
d) Exhibitionism- exhibiting before a child
e) Exposing a child to pornographic materials
A study on Child Sexual Abuse carried out by Save the Children and Tulir in 2006
looked at the prevalence and dynamics of child sexual abuse among school going children in
Chennai. The study was conducted with a view to add to the scarce indigenous body of
knowledge on child sexual abuse and with the aim of breaking the silence around the issue,
dispelling certain myths and providing research based information on child sexual abuse. The
team followed major ethical standards of confidentiality, freedom to participate, informed
consent and a multi-disciplinary team. The major findings of this study include:
1. Out of the total of 2211 respondents, 42% children faced at least one form of sexual abuse
or the other.
2. Among respondents, 48% of boys and 39% of the girls faced sexual abuse.
3. The prevalence of sexual abuse in upper and middle class was found to be proportionately
higher than in lower or in lower middle class.
4. Sexual abuse was found to be prevalent in both joint and nuclear families.
5. Majority of the abusers were people known to the child and strangers were a minority.
6. Sexual harassment in public places and exhibitionism was higher by strangers.
7. Sexual abuse of children was very often a pre-planned insidious abuse of a relationship by
an abuser over the child.
The WHO estimates that 150 million girls and 73 million boys under 18 have
experienced forced sexual intercourse or other forms of sexual violence involving physical
contact, though this is certainly an underestimate. Much of this sexual violence is inflicted by
family members or other people residing in or visiting a child's family home- people
normally trusted by children and often responsible for their care. A review of epidemiological
surveys from 21 countries, mainly high- and middle- income countries, found that at least 7%

3
of females (ranging up to 36%) and 3% of males (ranging up to 29%) reported sexual
victimization during their childhood. According to these studies, between 14% and 56% of
the sexual abuse of girls, and up to 25% of the sexual abuse of boys, was perpetrated by
relatives or step parents. In many places, adults were outspoken about the risk of sexual
violence their children faced at school or at play in the community, but rarely did adults
speak of children's risk of sexual abuse within the home and family context. The shame,
secrecy and denial associated with familial sexual violence against children foster a pervasive
culture of silence, where children cannot speak about sexual violence in the home, and where
adults do not know what to do or say if they suspect someone they know is sexually abusing a
child2.

How far does Indian Penal Code Protects Children from Sexual Abuse
According to The Convention on the Rights of the Child, Article 1 defines “the child”
as “every human being below the age of 18 years unless under the law applicable to the child,
majority is attained earlier”.
In the Indian legal system, the child has been defined differently in the various laws
pertaining to children.
The Indian Penal Code defines the child as being 12 years of age, whereas the Indian
Traffic Prevention Act, 1956 defines a ‘minor’ as a person who has completed the age of 16
years but not 18 years. Section 376 of IPC, which punishes the perpetrators of the crime of
rape, defines the age of consent to be below 16 years of age, whereas Section 82 & 83 of the
IPC states that nothing is an offence done by a child under 7 years, and further under 12
years, till he has attained sufficient maturity of understanding the nature of the Act and the
consequences of his conduct on that occasion.
There are very few sections under the Indian Penal Code that deal with child sexual
abuse. Some terrible home truths are:
 The laws for women are extended to include children.
 The major weakness of these laws is that only penile penetration is considered a
grave sexual offence. The crime is considered lesser when it is oral, or through
penetration with an object.

2
Study on Child Abuse INDIA 2007 Ministry of Women and Child Development Government of India A report
prepared by: Dr. Loveleen Kacker, IAS Srinivas Varadan Pravesh Kumar.

4
 Although section 377, dealing with unnatural offences, prescribes seven to ten
years of imprisonment, such cases can be tried in a magistrates court, which can
impose maximum punishment of three years.
 If the abuse is repeated several times it affects children more severely, however
as yet there is no law for repeated offenses against the one child.
How do we apply section 354, on outraging the modesty of women, with respect to
children? How do we define modesty?
The gravity of the offence under section 509, dealing with obscene gestures, is less.
Yet even in such cases, the child’s psyche may be affected as severely as in a rape.
In the Indian context the age of an individual in order to be determined as a “child”
is not uniformly defined. The consequence of this is that it offers various gaps in the legal
procedure which is used by the guilty to escape punishment.
In cases of rape the burden of proof is on the victim of rape, however if the victim is a
minor, the question of giving consent does not arise, as consent of a minor is not concerned
as consent in the eyes of the law. In cases of CSA, at present the law that is referred to is
section 376 of the IPC, where the age of consent is above 16 years.
Child abuse cases are handled under various sections of the Indian Penal Code, which are
laws meant for adults.
"So far there was not a single law aimed at safeguarding children and protecting them
against abuse. Offences against children were so far booked under laws under the IPC, which
at times failed to result in prosecution and conviction simply for the reason that crimes
involving children need to be handled with different tools. 3
For lack of any specific section for boy children, Section 377 (unnatural offences) is
presently being used for cases of child sexual abuse of boys. This is an area of great concern.
A pilot study on the implementation of the existing law on child sexual abuse4 revealed the
following facts:
 Statements taken by the Investigating Officers (IOs) mostly revolve around one
episode of CSA.
 The increase in the number of acquittals in cases of CSA is primarily because of
insufficient medical evidence. Medical examinations and reports need to be
scrutinized extensively to recommend appropriate changes so that the abuse is
reflected in all its complexities when it is a long-term abuse.

3
http://www.arpan.org.in/csa.html#anchor8csa. Visited on 08/06/2012.
4
Pilot Study by Trupti Panchal, TISS, Mumbai.

5
 All the victims were under the age of 10 years when the abuse first occurred. The data
also shows that 17 of the abusers were below the age of 18 years.

Child Marriage: A Form of sexual abuse of children

Child marriage also constitutes a form of sexual abuse of children. In Rajasthan, on


Akshya Tritiya day, which is popularly known as the Akha Teej, hundreds of child marriages
are openly performed. Akha Teej is regarded as the most auspicious day for celebrating
marriages. On this day, even infants who have just been born or are only a few years old and
cannot even sit or walk are married. In April 2003, the Forum for Fact Finding
Documentation and Advocacy (FFDA), a human right NGO, filed a public interest case5
seeking strict implementation of the Child Marriage Restraint Act 1929 (CMRA).6 In
December 2006, the Indian Upper House of Parliament approved a Bill outlawing Child
Marriages called the Prohibition of Child Marriage Act 2006.
The salient features of the Prohibition of Child Marriage Act, 2006, are as follows:
 Promoting, permitting, or participating in child marriages is punishable.
 Child Marriage Prevention Officers have been appointed to deal with cases of
child marriage.
 Child marriages can be declared null and void at the option of the contracting
party—a child—within two years of his/her attaining majority.
 While granting the decree of nullity, the court shall order both the parties to
the marriage and their parents or guardian, to return to the other party, the
money, valuables, ornaments and other gifts received on the occasion of
marriage by them from the other side or an amount equal to their value.
 The court can order maintenance for and residence to the female contracting
party.
 If the children are out of child marriage, then their best interests should be the
paramount consideration.
The following are some of the shortcomings of the Prohibition of Child Marriage Act,
2006:

5
Forum for Fact Finding Documentation and Advocacy (FFDA) v. Union of India, W.P. No. 212 of 2003
(Supreme Court of India, April 25, 2003).
6
CMRA repealed by the Prohibition of Child Marriage Act 2006.

6
 The child marriage is declared void only in cases of compulsion and
trafficking.
 The onus of declaring the marriage void is on the court only if the child or
his/her guardians file legal proceedings, but in reality, the parents may never
take such a step.
 The Act implicitly acknowledges traditional marriages.
 There is no provision for the punishment of officials under the Act.
 There are no incentives for traditional communities to motivate them to stop
the practice of child marriage.
The Supreme Court of India, on 14 February 20067, made it mandatory for all
marriages to be registered and directed authorities across the country to amend rules so that
its order could be implemented within three months. This judgment was expected to have a
significant effect on child marriages. The Court was of the view that one way of curbing the
practice of child marriages was to make it legally mandatory for everyone to register their
marriages to ensure that people record their ages at the time of marriage. The Supreme Court
asked the Central Government to give wide publicity to this order. The Central and state
governments were asked to incorporate appropriate provisions for the consequences of non-
registration as well as false documentation during the registration of marriages. The Court
also made it clear that the rules should specifically contain a provision for appointment of an
officer for this purpose.

Child pornography and child sex tourism

Child pornography can be dealt with under the Information Technology Act, 2000, as
the publishing of information, which is obscene, in electronic form is punishable. The Indian
Penal Code can also be used. Child sex tourism is a frighteningly well-organized operation
and police enforcement against it in India has been notoriously lax. A decade or so ago, the
Interpol listed the state of Goa in India as an organized hub of such activities and other states
too have been known to attract such offenders.

The Goa Children’s Act, 2003, is applicable only in Goa against child sexual abuse,
especially those related to sex tourism. The legislation has specifically made all cases of

7
Smt Seema v. Ashwani Kumar T.P. Civ No 291 of 2005.

7
abuse of such nature, a non-bailable offence under Section 2 (a) of the Criminal Procedure
Code, 1973. The fines and jail terms against the accused are also severe—Rs. 100,000 with
imprisonment of 1–3 years for sexual assault and incest, and Rs. 200,000 with a 7–10 years
jail term in the case of a grave sexual assault. The setting up of a Children’s Court to try all
offences against children is a bold step prescribed by this law. A child-friendly court will help
minimize the double trauma that abused children are subject to in courts, which even adults
find awesome, and terrifying.

According to the Goa Children’s Act, 2003, a lot of the onus to prevent child
trafficking and prevent child sexual abuse in the form of sale and procurement of children lies
on establishments like hotels and airports and rentals. Any form of soliciting or publicizing or
making children available to any adult or even other children by hotels for purposes of
commercial exploitation is prohibited. This includes hosting websites, taking suggestive or
obscene photographs, providing materials, soliciting customers, guiding tourists and other
clients, appointing touts, using agents, or any other form, which may lead to the abuse of a
child. Airport authorities, border police, railway police, traffic police are required to report
any suspected case of trafficking of children or of an adult travelling with a child under
suspicious circumstances. The sale of children is also prohibited under this Act.

The Act also envisages the government’s role in making sure that all child prostitutes
are removed from their existing place of exploitation and in ensuring that they are
rehabilitated and integrated into society. The Act further provides that the State shall provide
for the setting up of one or more Victim Assistance Units, which shall facilitate the child to
deal with the trauma of abuse and assist the child in processes involved with appearing as a
witness before any Court or authority handling a case of abuse of a child. The State is also
expected to carry out child sensitization programmes for police officers at all levels, which
shall include an orientation on child rights laws. Child rights laws and methods of handling
child abuse-related cases should also be specifically included in the Police Training School
curriculum. The State shall undertake child sensitization training for those involved in
healing and rehabilitation and other assistance programmes for children who are victims and
promote programmes of information support and training for such children.

Some important judicial responses to child sexual abuse and exploitation

8
As regards child prostitution in the light of devadasi and jogin practices, the Supreme
Court asked the state governments to set up advisory committees to make suggestions girls
and children8.
The Delhi High Court initiated several proactive steps by summoning NGOs and
government officers for ensuring effective rescue, rehabilitation and re-integration. Emphasis
was laid on the accountability of officers, empowerment of the survivors and preventing
prospects of their re-trafficking.9
The Bombay High Court has held that10:
 Medical examination of rescued girls to determine their age and to check if
they are suffering from any medical ailment;
 Counseling and aftercare to be ensured;
 Children rescued from brothels to be treated as “children in need of care and
protection” under the Juvenile Justice (Care and Protection of Children) Act,
2000; and
 The lawyer representing the accused not be allowed to represent the victims.

It has now been well established that all judicial proceedings relating to victims of
sexual abuse must be conducted in an ‘in-camera’ trial11. The Delhi High Court allowed the
evidence of victims of trafficking who had been rehabilitated in their home states to be
recorded through video conferencing, in consonance with the judgment of the Supreme Court
in State of Maharashtra v. Dr. Praful Desai12. This is the first instance of a court allowing
evidence to be recorded through video conferencing in a case of trafficking.
In the leading case of Sakshi v. Union of India the court gave the following directions
for holding the trial of child sex abuse or rape:
 A screen or some such arrangements may be made where the victim or witnesses
(who may be equally vulnerable like the victim) do not see the body or face of the
accused.
 (ii) The questions put in cross-examination on behalf of the accused, insofar as they
relate directly to the incident should be given in writing to the Presiding Officer of the

8
Vishal Jeet v. Union of India, 1990 (3) SCC 318.
9
Court on its own motion v. UOI (Crl. M. No. 862/01) in a PIL: Crl. W. No. 532/92 filed in Delhi HC for
implementation of ITPA.
10
Public at large v. State of Maharashtra: W.P. 112/92.
11
State of Punjab v. Gurmit Singh, 1996 SCC (CR) 316.
12
AIR 2003 SC 2053.

9
Court who may put them to the victim or witnesses in a language which is clear and is
not embarrassing.
 (iii) The victim of child abuse or rape, while giving testimony in court, should be
allowed ,sufficient breaks as and when required.

Victim and witnesses of trafficking for commercial sexual abuse and exploitation

Incidents of violence against women and children (including trafficking) have


considerably increased during the last decade in South Asia though few cases are reported to
the law enforcement agencies and even fewer reach the trial stage. A small percentage of the
accused are convicted. Most cases result in acquittals. The reason is the reluctance of victims
to come forward in filing complaints against those who have violated their rights or to testify
in court. There is also a need to have a law on victim witness protection. A draft protocol
called Regional Victim/Witness Protection Protocol to Combat Trafficking, Commercial
Sexual Exploitation and Sexual Abuse of Women and Children in South Asia has been
drafted13. This protocol recommends basic guidelines on the standards of prosecution of
offenders and specific measures to be taken collaboratively by the State and civil society. It
deals with the protection of victims, prevention, repatriation, rehabilitation and re-integration
and extradition of such victims and witnesses of trafficking.
The SAARC Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution was signed on 5 January 2002 and ratified on 2 September 2003.
The SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in
South Asia was signed on 5 January 2002 and ratified on 2 September 2003. At the
international level, Optional Protocol on the Sale of Children, Child Prostitution and Child
Pornography was ratified and signed on 15 November 2004. More multilateral and bilateral
efforts are required to control this offence, which has now taken the form of an organized
crime.
We need a comprehensive law on child sexual abuse that addresses the special needs
of children, keeps track of sex offenders so that they do not come into contact with children,
includes mandatory reporting for certain professionals, lays down court and police procedures
that are child-friendly and sensitive, addresses issues of survivors of child sexual abuse, and
provides compensation to victims. This is because the above bill has several loopholes and

13
Final Protocol drafted by Prof. Asha Bajpai, prepared for Sariq, India.

10
India today appears to be a ‘haven’ for child sexual abusers and pedophiles. It is strange but
true that the Indian Penal Code does not recognize child sexual abuse and there is no proper
law nor policy on child sexual abuse in India. The laws dealing with sexual offences are
outdated and do not specifically address child sexual abuse. Only rape and sodomy can lead
to criminal conviction. Anything less than rape amounts to outraging the modesty. There are
no procedural provisions to ensure that the best interests of the child are protected. The laws
focus more on technicalities. Medical reports prepared by some insensitive doctors are vague
and inadequate. The absence of a proper medical report in the case of a sexual assault goes
against the assaulted child. The insensitive interviewing of children by untrained police
personnel also causes further trauma to the child. Further, a child has to give his/her evidence
several times and re-live the trauma and the laws have no provision to prevent such trauma to
the child.
In the jurisprudence of fair trial in India, exceptions of hearsay evidence are accepted
in cases of dying declaration, murder victims, etc. Why can such an exception not be made in
the case of a child victim’s testimony too? There is thus a need to amend both the substantive
and procedural laws to ensure successful prosecution and to protect the best interest of the
child. The physical and psychological well-being of child sexual abuse victims and witnesses
and protection of their best interests are sufficiently important to outweigh the technicalities
of the law. In child sexual abuse cases, the child victim is the main witness. The language of
the child has to be understood by the interviewers. Children need legal protection right from
Children of India: Rights and Opportunities the time of the incident onwards, while filing the
FIR (First Information Report), during the trial and the post-trial period. Video-recorded
testimony (done only once) of a child victim of sexual abuse must be admissible as evidence
in courts. Protection orders must be issued by the courts. For this purpose, various
professionals must work in co-ordination with each other. Area-wise joint investigation
committees too need to be formed. Each such committee can consist of a trained police
officer, mental health expert, social worker, child rights lawyer, teacher, government official
and a sensitive medical doctor. Such teams must be recognized by the law and immediately
swing into action as soon as a child sexual abuse case comes to light. There must be a list of
responsible persons like teachers and doctors who have to report for duty when such a case
comes to light. The State has a duty to protect minor victims from sexual abuse by foreigners
and pedophiles, who run institutions, in the name of charity. Many a times they escape even
the minimal government inspections because they ‘do not use funds’ from the State.

11
The Protection of Children from Sexual Offences Bill, 2011
The Statement of Objects and Reasons to the Bill reads as follows:-14
“Article 15 of the Constitution, inter alia, confers upon the State powers to make special
provision for children. Further, Article 39, inter alia, provides that the State shall in particular
direct its policy towards securing that the tender age of children are not abused and their
childhood and youth are protected against exploitation and they are given facilities to develop
in a healthy manner and in conditions of freedom and dignity.
The United Nations Convention on the Rights of Children, ratified by India on 11th
December, 1992, requires the State Parties to undertake all appropriate national, bilateral and
multilateral measures to prevent (a) the inducement or coercion of child to engage in any
unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful
sexual practices; and (c) the exploitative use of children in pornographic performances and
materials.
The data collected by the National Crime Records Bureau shows that there has been increase
in cases of sexual offences against children. This is corroborated by the ‘Study on Child
Abuse: India 2007’ conducted by the Ministry of Women and Child Development. Moreover,
sexual offences against children are not adequately addressed by the extant laws. A large
number of such offences are neither specifically provided for nor are they adequately
penalized. The interests of the child, both as a victim as well as witness, need to be protected.
It is felt that offences against children need to be defined explicitly and countered through
commensurate penalties as an effective deterrence.
It is therefore, proposed to enact a self contained comprehensive legislation inter alia to
provide for protection of children from the offences of sexual assault, sexual harassment and
pornography with due regard for safeguarding the interest and well being of the child at every
stage of the judicial process, incorporating child-friendly procedures for reporting, recording
of evidence, investigation and trial of offences and provision for establishment of Special
Courts for speedy trial of such offences.
The Bill would contribute to enforcement of the right of all children to safety, security and
protection from sexual abuse and exploitation.”

Bill Summary

14
Department-Related Parliamentary Standing Committee On Human Resource Development
Two Hundred Fortieth Report On The Protection Of Children From Sexual Offences Bill, 2011
(Presented To The Rajya Sabha On 21st December, 2011)
(Laid On The Table Of Lok Sabha On 21st December, 2011)

12
 The Protection of Children from Sexual Offences Bill, 2011 was introduced in the
Rajya Sabha on March 23, 2011. The Bill was referred to the Standing Committee on
Human Resource Development (Chairperson: Shri Oscar Fernandes), which is
scheduled to submit its report by June 15, 2011.
 The Bill seeks to protect children from offences such as sexual assault, sexual
harassment and pornography. India is a signatory to the UN Convention on the Rights
of the Child since 1992. The parties to the Convention are required to take measures
to prevent children from being coerced into any unlawful sexual activity.
 Any person below the age of 18 years is defined as a “child”. The Bill seeks to
penalise any person who commits offences such as “sexual harassment”, “sexual
assault”, “penetrative sexual assault”, and “aggravated penetrative sexual assault”.
 A person commits “sexual harassment” if he uses words or shows body parts to a
child with sexual intent, shows pornography to a child or threatens to depict a child
involved in sexual act through the media. The penalty is imprisonment for upto three
years and a fine.
 A person commits “penetrative sexual assault” if he penetrates his penis into the
vagina, mouth, urethra or anus of a child or makes a child do the same or inserts any
other object into the child’s body or applies his mouth to a child’s body parts. If
however the child is between 16 and 18 years, it shall be considered whether consent
for the act was taken against his will or was taken by drugs, impersonation, fraud,
undue influence and when the child was sleeping or unconscious. The penalty is
imprisonment between seven years and life and a fine.
 The Bill penalises “aggravated penetrative sexual assault.” Such an offence is
committed when a police officer, a member of the armed forces or a public servant
commits penetrative sexual assault on a child. It also includes gang penetrative sexual
assault and assault using deadly weapons, fire or corrosive substance. The Bill also
covers assault by staff of private hospital and staff of an educational institution if the
child is in that institution.
 Penetrative sexual assault shall be considered aggravated if it injures the sexual
organs of the child or takes place during communal violence or the child becomes
pregnant or gets any other threatening disease or is below 12 years. It also covers
cases where the offender is a relative of the child through blood or adoption or
marriage or foster care or is living in the same household.

13
 A person commits “sexual assault” if he touches the vagina, penis, anus or breast of a
child with sexual intent without penetration. If the child is between 16 and 18 years, it
shall be considered whether the consent was taken against the child’s will or by threat
or deceit. The penaltyis imprisonment between three to five years and a fine.
 The offence of “aggravated sexual assault” is committed under similar conditions as
for “aggravated penetrative sexual assault”. The penalty for the offence is
imprisonment between five to seven years and a fine.
 A person shall be guilty of using a child for pornographic purposes if he uses a child
in any form of media for the purpose of sexual gratification through representation of
sexual organs of a child or using a child in sexual acts or other types of obscene
representation. The penalty is rigorous imprisonment for upto five years and a fine.
On subsequent convictions, the term of imprisonment is upto 7 years and fine. The
Bill also includes penalties for storage of pornographic material and abetment of an
offence.
 An offence committed under this Act shall be reported to either the local police or the
Special Juvenile Police Unit who has to report the matter to the Special Court within
24 hours. The police also have to make special arrangement for the care of the child.
In case a person fails to report a case, he shall be penalised. Also, the Bill includes
penalties for making false complaints.
 Each district shall designate a Sessions Court to be a Special Court. It shall be
established by the state government in consultation with the Chief Justice of the High
Court. The state government shall appoint a Special Public Prosecutor for every
Special Court. The Court shall, as far as possible, complete the trial within one year.
The trial shall be held in camera and in the presence of the child’s parents or any
person trusted by the child.
 The guardian of the child has the right to take assistance from a legal counsel of his
choice, subject to the provisions of Code of Criminal Procedure, 1973.
 If an offence has been committed by a child, it shall be dealt with under the Juvenile
Justice (Care and Protection of Children) Act, 2000.

Standing Committee Report Summary

14
The Protection of Children from Sexual Offences Bill, 2011 was referred to the Department-
related Parliamentary Standing Committee on Human Resource Development by the
Chairman, Rajya Sabha on 28 March, 2011 for examination and report.

 The Standing Committee on Human Resource Development submitted its 240th


Report on ‘The Protection of Children from Sexual Offences Bill, 2011’ on December
21, 2011. The Chairperson was Shri Oscar Fernandes.
 The Bill seeks to protect children from offences such as sexual assault, sexual
harassment and pornography. The Committee recommended that the Bill be passed
after incorporating the suggestions made by it. It also stated that the government
provide a note stating reasons for not incorporating certain recommendations.
 The Committee stressed that the Bill does not include provisions for relief and
rehabilitation of a child who has been abused. It recommended that an exclusive law
on protection of children on sexual offences should include all allied aspects. Also, it
should ensure that all the institutional arrangements are fully functional.
 The Committee suggested that the training programmes being conducted by different
agencies be assessed so that the officials are sensitised. The Committee also proposed
that an effective monitoring mechanism be put in place to monitor the implementation
of the law. Such a system was established for the Juvenile Justice Act where the
Supreme Court designated High Court judges in every state to monitor the law. Also,
the National Commission for Protection of Child Rights (NCPCR) could be
considered for a monitoring role.
 The Committee felt that it was necessary to sensitise and inform children, teachers
and parents about sexual offences. It could be done through sex education in schools.
 The Committee recommended some modification of definition of “child”, “shared
household”, “special court” and “aggravated penetrative sexual assault”. It also stated
that a “gang” should be defined and the list of possible places where assault could
take place be expanded to include religious institutions.
 The Bill states that if the child is between 16 and 18 years, it shall be considered
whether consent for the act was taken against his will. The Committee was of the
view that if the child is defined to be below 18 years, the issue of consent should be
treated as irrelevant.
 According to the Bill, penetrative sexual assault shall be considered to be aggravated
if it causes the child to become mentally ill or mentally unfit to perform regular tasks.

15
The Committee advised that this provision be modified to define mentally ill
according to the Mental Health Act, 1987. Some provisions specifically protecting
Scheduled Castes and Scheduled Tribes children be included.
 The Committee recommended that the Bill include provisions to protect victims of
child trafficking for sexual purpose since there is no exclusive legal mechanism for
curbing the practice. It pointed to the UK Sexual Offences Act, 2003 which contains
provisions on trafficking.
 If an offence is committed under this Bill, it shall be reported to either the local police
or the Special Juvenile Police Unit. The Committee proposed that Child Welfare
Committees should also be allowed to receive complaints.
 The Bill makes it mandatory for any person (including a child) to inform the
designated authorities if he apprehends that an offence is going to be committed.
However, the Committee felt that such a provision would be too farfetched and
difficult to assess. Therefore, it recommended that this provision be relooked. It also
felt that penalising a person for not reporting may be counter-productive given the
social stigma attached to the issue. The Committee advised that mandatory reporting
be confined to designated authorities such as child care custodian.
 The Committee recommended that the media be prohibited from reporting the identity
of the victim categorically in line with the Juvenile Justice Act. The Committee
proposed that the ‘Procedures for recording statement of the child’ be made more
extensive in line with the guidelines given by the Delhi High Court in 2007 and
NCPCR. Children’s courts, set up under the Commission for Protection of Child
Rights Act, 2005, should try offences too so that there are no multiplicity of
institutions.
 The Committee was of the view that Special Courts should not have the discretion to
decide about compensation to the child victim. Compensation should be awarded in
each case and a part of the amount should be paid by the perpetrator. Alternatively, a
Fund may be set up under the state government or the court for the purpose. Each
penalty clause should specify a minimum amount of fine. Also, the Rule making
clause should indicate specific areas where Rules are required to be framed.

Conclusion

16
The right to protection includes freedom from all forms of exploitation, violence,
abuse, and inhuman or degrading treatment. There are around 250 legislations in India that
directly or indirectly deal with children15. Laws on child sexual abuse and exploitation,
corporal punishment, surrogacy and reproductive tourism, adoption, surrogacy, cyber crimes
against children, education and child labour, have to be reformed and formulated. It is a
matter of concern that the prevention, rehabilitation and compensation of child victims have
still to be incorporated in various legislations.
We are moving towards the standards set by international laws. Now, it is important
to monitor and enforce the laws. What is required now is that the spirit of the laws be
inculcated among the law-makers, law enforcers and civil society so that children get justice.
It must be ensured that these laws do not simply remain on paper, as child rights are
nonnegotiable.
Children must be considered as citizens with rights guaranteed to them under the Constitution
of India, and the national and international laws. The State infrastructure and services for
children need to be enhanced and improved. The major significance of the Convention on the
Rights of the Child and other international instruments ratified by India is that it represents a
commitment to improving the situation of children in India. Thus, they can be used by public
advocates to force the government to take action on child issues.
Awareness of the rights and laws by various stakeholders including children is essential. We
have to recognize the enormity of the problem, and tackle it politically, legally, and socially
with significant commitment from the State and civil society. The effects of the processes of
globalization, privatization and liberalization on children must be seriously considered and
addressed. The negative linkage of globalization and privatization on the rights of children in
several countries across the world needs to be examined. Today, the country is registering 8-
10 per cent growth and claiming that it would become a world economic power by 2020. Can
we, however, become a world economic power with our children being abused, exploited

15
Some major policies and legislations issued in the country to ensure children’s protection and improvement in
their status include the Guardian and Wards Act, 1890; Factories Act, 1954; Hindu Adoption and Maintenance
Act, 1956; Probation of Offenders Act, 1958; Bombay Prevention of Begging Act, 1959; Orphanages and Other
Charitable Homes (Supervision and Control) Act, 1960; National Policy for Children, 1974; Bonded Labour
System (Abolition) Act, 1976; Child Marriage and Restraint Act, 1979; Immoral Traffic Prevention Act, 1986;
Child Labour (Prohibition and Regulation) Act, 1986; National Policy on Education, 1986; Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1987; National Policy on Child Labour, 1987;
Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution)
Act, 1992; National Nutrition Policy, 1993; Pre-natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994; Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 2000;
Juvenile Justice (Care and Protection of Children) Act, 2000; National Health Policy, 2002; National Charter for
Children, 2004; and National Plan of Action for Children, 2005.

17
and trafficked, and their rights violated?16

16
The Legislative and Institutional Framework for Protection of Children in India by Asha Bajpai.

18

Potrebbero piacerti anche