CHILD SEXUAL ABUSE: A CRITICAL ANALYSIS

Vol 2/ Issue 2/ Dec 2016 ISSN 2394 -9295

ABSTRACT

Children are most innocent when in their childhood but there exist some demons into the society that could be near and dear ones that ruin their innocence by sexually exploiting them, in such a situation it is very important for society, parents, media and educational institution to take initiative to teach children their rights and make awareness amongst them. In spite of having various pieces of legislation which protect the rights of the children, still the rate of crime against the children are increasing at a constant rate every year. Exploiting a child sexually is a most dreadful act one can do, which results in a child leading a depressed life in future. This article provides about what are the effects on the health of a child abused sexually & mentally and what role society, parents, and educational institution should play to save the victim of the offence and how to deal with a child who is already a prey of this heinous crime.

Key Words: sexual abuse, child, convention, domestic legislation, modesty

INTRODUCTION

When a child or a young person is pressurized, forced or tricked into taking part in any kind of sexual activity with an adult or young person, then that child is said to be a victim or prey of an offence called ―Child Sexual Abuse . Child sexual Abuse involves activity like fondling, touching, kissing of genitals and other areas of the body, Penetration with a penis, digit or object, exposing genitals or sexual material to a child, talking to a child inappropsriately, graphically and explicitly about sex, asking a child to touch their own genitals or another person, non -forced sex with an underage child[1]

Every day morning articles into the newspaper related to the sexual abuse of the child attract towards a question that despite having a great piece of legislation in India providing the rights to the child, why the human rights of a child are still at risk? Why is the childhood being robbed off from their innocence? “Children are the greatest gift to humanity, the sexual abuse to the children is the most heinous crime, it is an appalling violation of their trust, an ugly breach of our commitment to protect the innocent”[2] observed by Justice Palansamy Sathasivam in the case of Childline India Foundation & Anr. Vs. Allan John Waters & Ors.[3]

When the census was conducted in 2001 in India it was found that about 440 million individuals in India were below 18 years of age and constitute 42% of total population. A total of 33,098 cases of sexual abuse in children were reported in the nation during the year 2011 with an increase of 24% when compared to cases reported in 2010 which showed the figure of 26,694.[4] To contain this evil looming within the family and

outside the home the act The Protection of Children from Sexual Offences Bill, 2011 was introduced into the parliament after the struggle and the debates, the bill finally achieved the assent of both the houses and of the president of India on 19^th June 2012 and was notified in official Gazette on 20^th June 2012 which gave both male and female children their rights and protection from the sexual offences that were committed against them before the enactment of the act. The objective of the act is to protect children from offences of sexual assault, sexual harassment and pornography. The act provides for the establishment of Special courts for trial of such offences and matters connected to it or any such kind of incident considering the importance and necessity for the adequate development of the child that his or her Right to Privacy and Right to Dignity are safe. Furthermore, the act suggests that if any person having slightest of apprehension that an offence is likely to be committed, the person is then under the mandatory obligation to report the matter and also it is mandatory for the police to file FIR in all such cases of child sexual abuse. The act also provides the provision for recording of the statement of the child at the place of his or her choice.

INTERNATIONAL CONVENTION

It seemed to be very difficult to effectively protect the rights of the child, due to absence of any legally binding text, understanding the seriousness of the issue in 1978, Poland proposed an idea of Convention on the Rights of The Children that would be binding on all the nations, the bill was then produced and it took ten unanimous years to achieve the consent of the bill by the international community. Finally, the bill achieved the consent and was adopted in 1989, the objective of the convention was to protect the rights of the children in the world & the text present in the convention is legally binding onto the countries that will protect the rights of the children. [5]

PROVISIONS OF THE CONVENTION

The UNICEF convention provides with the articles that suit to the issue, they are as follows: [6]

Article 4: It is the responsibility of the Government to take all available measures to make sure that children‘s rights are respected, protected and fulfilled. Governments of the respected countries are under obligation to monitor that the minimum standards set by the convention are being met into the countries they are governing, they must provide with an environment where the children‘s can grow and can reach their potential.

Article 6: Children have a Right to Live. The government should ensure that children survive and develop healthier.

Article 19: Children have the right to be protected from being hurt and mistreated, physically or mentally. The government should ensure that children are properly cared and protect them from violence, abuse, and neglect by their parents, or any person who looks after them. In order to make children learn for discipline, parents must not use the punishment that is violent in nature, such type of violence or punishment in order to teach discipline is unacceptable. In most of the countries, laws are already defined explaining the punishments that are considered as abusive or excessive. The government should review these laws in light of the convention.

Article 34: Government should protect children from all forms of Sexual exploitation & Abuse. This provision in the convention is augmented by the optional protocol on the sale of Children, child prostitution& Child pornography.

Article 39: Children who have been neglected, abused or exploited should receive special help to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring the health, self -respect and dignity of the child.

DOMESTIC LEGISLATION

There are millions of children who get victimized by trafficking and sexual exploitation every year and the numbers are increasing constantly every year. There are number of national legislations and International convention which provides the number of provisions for the protection of children from sexual abuse.

Before the enactment of Protection of Child from Sexual Offences Act, 2012, Goa Children‘s Act, 2003 was the only specific piece of child abuse legislation. Child Sexual Abuse was prosecuted under Section 375, 354 and 377 of Indian Penal Code, 1860 however the IPC was not effectively protecting the children from sexual abuse due to some loopholes prevailing in the current legislation stated below:

Section 375 of Indian Penal Code,1860 doesn‘t protect minor or major male victims from sexual acts of penetration other than ―traditional penovaginal

Section 354 of Indian Penal Code, 1860 lacks a statutory definition of ―modesty . It carries a weak penalty and is a compoundable offence. Further, it does not protect the ―modesty of a male minor.

Section 377 of Indian Penal Code, 1860 the term ―unnatural offences is not defined. It only applies to victims penetrated by their wrongdoer‘s sex act and is not designed to criminalize sexual abuse of children.[7]

Considering the previous legislations Prevention of Child from Sexual Offences Act, 2012 was enacted which provided for various provisions which were stringent:

Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to life imprisonment along with fine.(Section 4)

Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to life imprisonment along with fine.(Section 6)

Sexual Assault (Section 7) – Not less than Three tears which may extend to life imprisonment along with fine.(Section 8)

Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to life imprisonment along with fine.(Section 10)

Sexual Harassment of the child (Section 11) – Three years and fine (Section 12)

Use of Child for pornographic purpose (Section 13) – Five years and fine and in the event of subsequent conviction seven years and fine [Section 14 (1)] [8]

India is a country with world‘s second largest child population, and our constitution protects and provides them with their rights & guarantees justice to them. Part III Fundamental rights which are one of the basic structures of the constitution as discussed in Maneka Gandhi case[9] gives the rights to children as well. Article 21 of Constitution states ―Protection of life & Personal Liberty” which has a very vast meaning and provides many rights to the citizens, some of them which concern the issue of this article are ―Right to Privacy” & ― Right to Live Life with Dignity” it was held in ―Auto Shanker case”[10] that Right to Privacy is expressed as right to be let alone which is guaranteed by Article 21 of the Constitution while Right to Live Life with Dignity was explained in ―Maneka Gandhi case” which stated that right to live‘ is not only limited to protection of any faculty or limb but also includes right to live a life with dignity‘ and all that goes along with it.[11]

Every child has their own rights to keep privacy and right to live a dignified life in the society no one can infringe these rights. Whenever any sexual abuse takes place with a child the rights of the victim comes at a risk and gets infringed by the wrongdoer and the violation of Article 21 of constitution takes place.

Constitution of India not only provides with the Fundamental rights but also describes the duties and aims to be taken up by the state in the governance of the country. Article 45 provides that it is the duty of the state to make such provision for early childhood care and education to children below the age of six years.[12] PHYSICAL & PSYCHOLOGICAL EFFECTS

Sexual abuse of a child leaves a very severe effect on the health of a child and can ruin the childhood. The impact of the sexual abuse on a child can be long lasting or in some cases can be lifelong. Children who are sexually abused experience both short term and long term effect on their health. In Long term, victims can exhibit emotional difficulties, medical health problems, problems related to consumption of alcohol or drugs in excess, disturbing thoughts, not being able to cope up with the social life, etc.

In Short term victims can exhibit regressive behavior like bed wetting, thumb sucking, sleep disturbances, eating problem i.e. not taking proper diets, being scared of the people and unwillingness to participate in school or social activities.

There might also be some physical signs that are the warning signs and are easy to spot like difficulty in walking or sitting of the victim, bleeding or swelling in genital areas, pain or itching in genital areas, frequent urinary or yeast infection.

If suspicion arises about the abuse of the child sexually one must talk to the child and must make a comfortable environment for the child so that he/she comfortably gets into the conversation, while having conversation one must keep these points in mind:

The tone must be polite and must not be very serious because this will scare them and they will not be able, to tell the truth comfortably.

Must listen to the child carefully and with deep patience. Must not blame the child or should avoid judgments.[13]

CRITICISM

According to the report of National Crime Records Bureau of 2014 89,423 cases of child sexual abuse were reported in which charge sheet was filed for only 87.6% cases.[14] The published statistics shows that in spite of having proper legislation there have been some issues with the enforcement of law. Though the legislation did their best in making the provisions of the act but still faced some criticisms and challenges like:

The most important challenge is to find the intention of the wrongdoer at the time of committing the offence, a criminal liability arises only when there is ―Actus Reus” e. wrongful act done along with

―Mens Rea” i.e. Wrongful Intention[15]. In some cases it is very difficult to find the wrongful intention of the wrongdoer, in some cases, it is difficult to connect a link between intention and commission of the act. In such type of situation the actions of the wrongdoer defines the distinction between the act of the wrongdoer and the intention, the prosecution establishes if there is any evilness in the act of the person, eye witnesses present there at the time of the act done by the wrongdoer can help in judging the intention of the person. For Eg: If job doing parents on the basis of trust leaves a child with maids for the care and if that maid had the wrongful intention to harm or abuse the child.

A child who has been a victim of any of the offences of the act must probably have had a harsh experience of his life which is likely to damage the mental health of the child and in such circumstances, it is not only the child that suffers trauma but also the family of the victim need psychological treatment. Sadly, the government does not provide any of such psychological service to the victim and the family.

Prevention of Child from Sexual Offences Act, 2012 demands the necessity of training for the police and other legal authorities, handling child sexual abuse, such programs are almost non – existent. A child, who is traumatized giving a statement in front of a police wearing the uniform will make a child into a more of a condition which is full of fear which will result in an incomplete statement by the [16]

The Act does not provide for the provision of the establishment of any type of Non – Governmental Organizations or any Training centre‘s that could guide the police officers doing the investigation and recording the statements of a child or victim.

ROLE OF CIVIL SOCIETIES

Media in today‘s era is a very good platform to reach to the public and make them aware of the happenings around the world likewise, taking the support of the media in constructive manner children and the parents can be made aware and can be educated about the child sexual abuse.

Parents are the path showers of the children they must be frank with the children and must educate them about good touch and bad touch, make children learn the address and contact details, make sure that children know how to dial an emergency contact, teach child about buddy system i.e. walking in pairs or groups, they must know what is right and what is wrong and how to tackle any of such situations on their own when parents are not available at the time of the incident.[17]

It is also the duty of parents to monitor for adults who try to invade the privacy of a child, insists on a special time‘ alone from other adults or children, spend a lot of time with that child instead of with adults. Moreover, In today‘s era where parents are busy with their jobs and businesses educational institutions must take the initiatives to educate the children on how to protect themselves from the evils of the society and to protect themselves from the sexual abuses or any kind of abuse.[18]

CONCLUSION

Sexually abusing a child is the most horrendous of the evil resulting into leaving the child scarred for their whole life. Despite several measures taken up by the government for tracking, missing and trafficked, rehabilitating/restoring lost children like introduction of online complaint box called POCSO e -box launched by Minister for Women and Child Development which is an online complaint management system for reporting of sexual offences against children and against the offenders under POCSO Act, 2012[19], khoya paya scheme where the Ministry of Women & Child development with the help of Department of Electronics and Information Technology has introduced a web portal where it will be an ease to report and search for the missing child also the government has framed path -breaking Special Operating Procedures (SOP‘s) that are to be implemented by railways for kidnapped, abandoned, trafficked children by the help of the Railways department. There will be child Helpline centers & NGO/ Child helpline group at 20 major stations for the rehabilitation & rescue of children. The government has also issued some Foster Care Guidelines which permits the individual families as foster parents thereby providing a better standard of care and protection.[20] Despite various legislations and provisions framed by the legislature in order to protect the rights of the child, despite various active roles played by the civil society associations there is rarely any day left where we don‘t notice a particular section of the newspaper not highlighting the issue related to child abuse or child sexual abuse. According to the report published in 2014 by National Crime Records Bureau stated that 89,243 cases were registered during the year[21] which itself shows that how much the offences against the children still prevail in spite of having various legislation and provisions, which states that there is a big loophole which still exist in the legislation. Nonetheless the government actions are appreciated but it is a long journey ahead, and these legislations are the various stations in that journey towards the recognition of the rights if the child, also it is not only about the government it is also about the society including parents in the role of protecting the child, creating awareness & rehabilitating into the functional setup again.

REFERENCES

[1]Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child – sexual -abuse -what -is -good -touch -and -bad -touch/article7780200.ece (Last visited 30 August 2016) [2]Information Technology Act 2000, India, available at: https://indiankanoon.org/doc/1052165

[3] Childline India Foundation & Anr. Vs. Allan John Waters & Ors. [(2011) 6 SCC 261] [4]Information Technology Act 2000, India, available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4311357 (last Visited on 10^th August 2016)

1. Information Technology Act 2000, India, available at: http://www.humanium.org/en/convention (Last Visited 20 August 2016)
2. Information Technology Act 2000, India, available at

http://www.unicef.org/crc/files/Rights_overview.pdf (Last Visited on 20 August 2016)

1. Information Technology Act 2000, India, available at

https://en.wikipedia.org/wiki/Child_sexual_abuse_laws_in_India (Last visited on 10th August 2016

[8] Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)

[9] Maneka Gandhi vs Union of India (1978 AIR 597) [1978 SCC (1) 248]

[10] R. Rajagopal vs State of Tamil Nadu (1995 AIR 264);[ 1994 SCC(6) 632]

[11] Dr. J. N. Pandey, Constitutional Law Of India 255 & 258(Central Law Agency, Allahabad, 52^nd Edition, 2015)

[12] Dr. J. N. Pandey, Constitutional Law Of India 449(Central Law Agency, Allahabad, 52^nd Edition, 2015) [13] Information Technology Act 2000, India, available at: https://www.rainn.org/articles/if –you – suspect -child -being -harmed (Lst visited on 11th August 2016)

[14]Information Technology Act 2000, India, available at: http://ncrb.nic.in (Last visited on 11^th August 2016)

[15] PSA Pillai, CRIMINAL LAW, 23( LEXIS NEXIS, Gurgaon, Haryana 12^th Edition, 2015)

[16] Information Technology Act 2000, India, available at : http://www.mapsofindia.com/my – india/government/the -protection -of -children -from -sexual -offences -act -2012 -pocso (Last visited on 11th August 2016)

1. Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child –sexual -abuse -what -is -good -touch -and -bad – touch/article7780200.ece (Last visited 30 August 2016)
2. Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child –sexual -abuse -what -is -good -touch -and -bad – touch/article7780200.ece (Last visited 30 August 2016)
3. Information Technology Act 2000, India, available at: http://www.livelaw.in/pocso -e -button – children -file -complaints -sexual -abuse -launched (Last Visited on 30 August 2016)
4. Information Technology Act 2000, India, available at:

http://pib.nic.in/newsite/PrintRelease.aspx?relid=133957 (Last visited 11^th August 2016)

1. Information Technology Act 2000, India, available at: http://ncrb.nic.in (Last visited on 11^th August 2016)