Sexual Abuse Of Children: POCSO and Challenges

Sexual Abuse Of Children: Tshewang Dema

INTRODUCTION

“Child abuse or maltreatment constitutes all forms of physical and or emotional ill-treatment, sexual abuse, neglect or negligence treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power”.

                                                                                                                     – World Health Organization

Human Rights are those rights that are essential for the protection and maintenance of the dignity of individuals and create conditions in which every human being can fully develop his personality. Every individual possesses and enjoys those rights without any criteria of his/her caste, creed, color, religion, race, age, sex, place of birth, nationality etc. They are universal in nature. Since human rights are not created by any legislation, they resemble very much natural rights. 

As highlighted in this special issue, the global scale of the maltreatment of children through different forms of abuse and neglect is staggering. Even to a hardened world well used to the misery of others, the statistics and individual stories detailing the widespread suffering of children are shocking. For the individual child in any setting, whether rich or poor, any form of abuse can occur and is always unacceptable.

India has a wide range of laws to protect children and child protection is increasingly accepted as a core component of social development. The challenge is in implementing the laws due to inadequate human resource capacity on the ground and quality prevention and rehabilitation services. As a result, millions of children are prone to violence, abuse and exploitation.

Historically, child sexual abuse (CSA) has been a hidden problem in India, largely ignored in public discourse and by the criminal justice system. Until recently, CSA was not acknowledged as a criminal offence; rape was the main, if not the only, specific sexual offence against children recognised by law in India. In the absence of specific legislation, a range of offensive behaviours such as child sexual assault (not amounting to rape), harassment, and exploitation for pornography were never legally sanctioned. In the past few years activists, Non-Governmental Organisations (NGOs) and the central government’s Ministry of Women and Child Development have actively engaged in helping break ‘the conspiracy of silence’ (HRW 2013) and have generated substantial political and popular momentum to address the issue. The movement, spearheaded by the Ministry of Women and Child Development, led to the enactment of new legislation called the Protection of Children from Sexual Offences (POCSO) 2012.

The enormous individual, families, and society burden of child sexual abuse has underscored the need to address the problem from a public health framework. Much work remains, however, at the first step of this framework—defining and understanding the scope of the problem or establishing incidence and prevalence estimates. Child abuse is a state of emotional, physical, economic and sexual maltreatment meted out to a person below the age of eighteen and is a globally prevalent phenomenon.

However, in India there has been no understanding of the magnitude the problem. The growing complexities of life and the dramatic changes brought about by socio-economic transitions in India have played a major role in increasing the vulnerability of children to various forms of sexual abuse. Child sexual abuse (CSA) is a significant public health and social justice concern affecting the lives of millions of individuals in India.

CSA victimization crosses cultural and economic boundaries and has been linked to impaired neurological, physiological, and psychosocial functioning that contributes to a wide range of short- and long-term health consequence. In this reflexive piece, it will begin with brief discussing the prevalence of CSA in India and the legal response to it and the child protection challenges in India.

DEFINITION OF CHILD SEXUAL ABUSE

The World Health Organization defines abuse as ‘Child abuse or maltreatment constitutes all forms of physical and/or emotional ill treatment, sexual abuse, neglect or negligent treatment or exploitation resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power.’[1] Part of an Indian definition is also highly relevant and descriptive: ‘any act, deed or word which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.’[2]

Child sexual abuse (CSA) is defined as the misuse of power and authority, combined with force or coercion, which leads to the exploitation of children in situations where adults or children sufficiently older than the victim to have greater strength and power, seek sexual gratification through those who are developmentally immature and where, as a result, consent from the victim is a non-concept. Such gratification can involve explicit sexual acts or may involve invasive and inappropriate actions not directly involving contact.

Types of child sexual abuse:

Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Indecent exposure (of the genitals, female nipples, etc.) to a child with intent to gratify their own sexual desires, physical sexual contact with a child, or using a child to produce child pornography are of the few forms. Following are forms in detail:

Severe forms of sexual abuse include:

• Assault, including rape and sodomy
• Touching or Fondling a child
• Exhibitionism- Forcing a child to exhibit his/her private body parts
• Photographing a child in nude

Other forms of sexual abuse include:

• Forcible kissing
• Sexual advances towards a child during travel
• Sexual advances towards a child during marriage situations
• Exposing a child to pornographic materials

Although child abuse can be categorised in many ways, the kinds of harm perpetrated can be usefully used to influence immediate management and future protection. Firstly, the type of abuse can be defined similarly to other harmful effects on the health and well-being of children: physical, sexual, and emotional abuse and neglect (the last being either deliberate or through ignorance). Often there are combinations of these in an abused child.

A second category of abuse examines the motive of the perpetrator. By focusing on whether the abuse is deliberate and, therefore, perpetrated for personal gain, or because of overwhelming social or mental health pressures in the perpetrator can help in formulating a safe protection plan.[3] It is important to differentiate between these types of abuse because the perpetrators in each category should be treated separately.

CHILD SEXUAL ABUSE IN INDIA

In India, the number of children needing care and protection is huge and increasing. Uncontrolled families, extreme poverty, illiteracy result in provision of very little care to the child during the early formative years. Even services that are freely available like education, nutrition, vaccines, sanitation are poorly utilized. The urban underprivileged, migrating population (a very huge-sizable number) and rural communities are particularly affected. In large cities, there are serious problems of street children (abandoned and often homeless) and child labourers, employed in hazardous work. Children in difficult circumstances such as children affected by disasters, those in conflict zones, refugees, and HIV AIDS victims need appropriate care and rehabilitation.

In India, there are about 440 million children; about 40% of them are vulnerable or experiencing difficult circumstances. Twenty-seven million babies are born each year. A large majority these births are among the underprivileged section of the population, mostly unplanned and where the parents cannot provide proper care to their children. The situation of the new-born and the periods of infancy and early childhood are particularly critical, and the morbidity and mortality rates continue to remain very high. Maternal under nutrition, unsafe deliveries, low birth weight babies and poor newborn care, lack of adequate immunizations, poor nutrition, neglect of early development and education are major issues that need to be appropriately addressed. Child rearing practices reflect social norms and very often adverse traditions are passed from one generation to the next, especially in illiterate and poorly informed communities, and are extremely resistant to alter.[4]

As per Government of India (2007) survey, the prevalence of all forms of child abuse is extremely high (physical abuse (66%), sexual abuse (50%) & emotional abuse (50%). There is regional and rural–urban variation in the rates and extent of CSA in the country.[5] Girls are more vulnerable to sexual abuse, although boys too reported a high percentage of victimisation and are subject to greater social stigma. Although sexual exploitation and abuse is strongly correlated to poverty, it occurs in families across the socioeconomic and religious spectrum.

 However, factors that facilitate CSA, such as poverty, overcrowding, extended family living arrangements, abundance of street children, and lack of recreational facilities in families are by no means exclusive to India. Admittedly, their impact might be exaggerated or intensified given the population density and size in India. Thus, a complex mix of individual, ecological and situational factors that are said to facilitate CSA might account for its prevalence in the Indian context.

Sexually abused children are severely let down by systemic failure of the criminal justice system to redress their grievances and by social ostracism associated with such abuse as only 3% of CSA offences were reported to the police. It is unsurprising that CSA is severely underreported given the shame and associated socio-cultural stigma, especially if the abuse is in the context of the family. This phenomenon is not unique to India but common to collectivist cultures in other Asian countries where an individual’s experience is ignored so as to protect the family from shame associated with sexual abuse.[6]

CHILD RIGHT CONVENTION (CRC) AND INDIA

Adopted by the United Nations in 1989, the CRC is an international agreement legally binding on the party’s signatory to it. It has incorporated in its various articles’ rights of children without any discrimination whatsoever. It was ratified by India on 11 December 1992. It has a preamble setting out different principles the CRC is built upon.

It is based on four basic principles:

1. Non-discrimination (Article 2)
2. Best Interest of the Child (Article 3)
3. Right to Life Survival and Development (Article 6)
4. Right to be Heard (Article 12)

The provisions of the CRC have been categorised as:

PART I (Article 1-41): It sets out the rights of children and obligations of governments. The rights can further be categorised as:

• Survival Rights: the right to life of child and access to basic necessities to existence such as adequate food, shelter, standard of living and medical requirements.
• Development Rights: the right to education, to practice the religion of own choice and cultural activities, freedom of thought and conscience, to play and leisure and to access to information.
• Protection Rights: rights that protect children from abuses which may be consequential to several kinds of circumstances, such as children subject to procedures of criminal justice system, children in employment, children who are refugees, children who have undergone abuse or exploitation.
• Participation Rights: rights of children to participate in activities of the society, especially matters that may affect their life, to assemble peacefully and to join associations.

PART II (Article 42-45): It contains provisions regarding implementation of the provisions of the CRC.

PART III (Articles 46-54): It includes provisions for signing the convention by parties and rules and procedures thereafter for the purpose of ratification, enforceability, amendment, denouncement, etc. of the convention.

Three Optional Protocols to the CRC have been introduced which are:

• Optional Protocol to CRC on Sale of Children, Child Prostitution and Child Pornography.
• Optional Protocol to CRC on the involvement of Children in Armed Conflict.
• Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.

As of now India has not signed the third optional protocol.

RESPONSE OF THE GOVERNMENT

Considering the importance of the social sector and accelerating the development process the Department of Women and Child Development was elevated to the status of an independent Ministry at the Union level from 20th February 2006. The consequent changes have helped in giving children’s issues focused attention and enhanced allocation. Children’s issues were also consolidated and entrusted to MWCD for better and effective implementation.

Immediately after the adoption of WFFC (World fit for Children) in 2002, the process was started for the formulation of a National Plan of Action for Children as per the national requirements to achieve the targets set in WFFC. The Plan of Action was finalized in 2005 with the approval of the Union Cabinet to give the highest level of importance to the issue. The Plan includes goals, objectives and strategies in the areas of education, health, nutrition, water and sanitation, early childhood care, protection of children in difficult circumstances and in conflict with law, rights of girl child and adolescents, combating trafficking, child labour and HIV/AIDS and Child participation.

 It also contains the resource mobilization and monitoring of its implementation. Eight major parameters of the Plan are being regularly monitored at the Prime Minister’s level. These parameters include reduction of IMR, CMR, MMR, universal access to safe drinking water and sanitation, elimination of child marriage, elimination of disability due to poliomyelitis and reduction in proportion of infants infected by HIV/AIDS. Similar actions were undertaken by the state governments to enact their own action plans.[7]

In the last two decades, the government has taken several steps towards publicly advance children’s rights. These include the Juvenile Justice (Care and Protection) Act 2000 (amended in 2006), Prohibition of Child Marriage Act (2006), the formation of the National Commission for Protection of Child Rights (2005), a National Plan of Action for children (2005), Right to Information (RTI) 2005, the Goa Children (amendment) Act 2005, the Child Labour (Prohibition & Regulation) Act, 1986 (two notifications in 2006 & 2008), expanded the list of banned and hazardous processes and occupation), Integrated Child Protection Scheme (2009) and advancing various legislations such as Right to Education Bill (2009) & Prevention of children from Sexual Offences (POCSO Act 2012) to protect, promote and defend child rights in the country.[8] However still, there is a wide gap between policy & implementation/practice & outcome, and millions of children fall through the gaps.

LEGAL BACKGROUND TO CSA

Until 2012, the only sexual offenses against children recognized by the law were covered by three sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse without consent—section 376), outraging the modesty of a woman (unspecified acts—section 354) and unnatural acts defined as “carnal intercourse against the order of nature with any man, woman or animal” (anal sex, homosexuality, or bestiality—section 377). Consequently, other forms of non-penetrative sexual assaults, harassment and exploitation were not explicitly recognised as crimes and therefore not recorded. Increased activism around child protection issues in the media and public discourse might partly account for the Government of India passing a special law called, ‘The Protection of Children from Sexual Offences (POCSO) 2012. This Act criminalizes sexual assault, sexual harassment, and pornography involving a child (Less than 18 years of age) and mandates the setting up of Special Courts to expedite trials of these offences.

The ordinary Criminal laws were inadequate in protection of children victim of sexual abuse. These provisions of IPC, 1860 does not include common forms of Child sexual abuse nor about their impact on child. The restrictive implementation of “Penetration” in the explanation to Section 375 is an obstacle to cases of Child sexual abuse. Section 376(A) also has the same reasoning. The existing definition of rape and molestation should be suitably amended to adequately address the various types of assaults on children. The testimony of child victim needs to be recorded sensitively by police/magistrate. The recording of statements needs a special provision in CrPC.[9]

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 and 83 of the IPC states that nothing is an offense 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.
• Although section 377, dealing with unnatural offences, prescribes seven to ten years of imprisonment, such cases can be tried in a magistrate’s 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 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 because crimes involving children need to be handled with different tools.

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 abuse[10] 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.
• 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.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012

The POCSO Act, 2012[11] is a gender-neutral legislation. It defines a child as any individual below 18 years and provides protection to all children from sexual abuse. Definition of child sexual abuse is comprehensive and encompasses the following: (i) penetrative sexual assault, (ii) aggravated penetrative sexual assault, (iii) sexual assault, (iv) aggravated sexual assault, (v) sexual harassment, (vi) using child for pornographic purpose, and (vii) trafficking of children for sexual purposes. The above offences are treated as “aggravated” when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-ã-vis the child. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

The POCSO Act further makes provisions for avoiding re-victimization, child friendly atmosphere through all stages of the judicial process and gives paramount importance to the principle of “best interest of the child”. It incorporates child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences, trial in-camera and without revealing the identity of the child through designated Special Courts. It also provides for the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child’s medical treatment and rehabilitation.[12]

FEATURES OF POCSO ACT, 2012

POCSO 2012 does not use the term ‘rape’ more commonly used and also does not confine penetrative sex to penile penetration. Instead, it broadens the offence termed ‘penetrative sexual assault’ (section 3) to include oral sex, as well as insertion of any object into anus, mouth or vagina, in addition to penile penetrative sex. POCSO also criminalises a range of behaviours as being sexual assaults, short of penetration (section 7). Additionally, the offences of ‘aggravated’ penetrative and non-penetrative sexual assault is made more serious and attract stronger penalties (sections 5, 9) when commit-ted by a specified range of perpetrators, in a wide array of situations or conditions, and/or has a severe impact on the victim.

POCSO is also forward thinking in many aspects, in that, the definition of sexual harassment includes repeatedly or constantly following, watching or contacting a child either directly, electronically or through other means [section 11(iv)]—thus, covering incidents of child harassment via sex chatting or sexual cyber bullying. The Act is quite distinctive in that it penalises abetment of or attempt to commit any of the offences listed in the preceding sections (section 16). Another ‘extraordinary clause’ (section 29) in the Act is the presumption of guilt of the accused, until proven innocent. The provision of Special Courts (section 35) where trial proceedings may be conducted in a more sensitive manner with the victim’s testimony given either ‘in camera’ (i.e. privately), via video-link, or behind curtains or screens, is intended not only to reduce trauma but also protect the identity of the child. The Special Court plays a pivotal role in how the law and the evidence may be interpreted.[13]

WHAT DOES EXISTING DATA TALK ABOUT?

According to sexual offences against children and the 2017 crime statistics:[14]

The latest Crime in India report is for 2017, which has been released in October 2019. However, the way the data is computed presents serious challenges. Most important of all, it makes it near impossible to compare it with the previous years. Here are some examples:

1. Crime in India 2017 has added data on offences that were not reflected in earlier reports. It remains unclear whether these were subsumed under some broader categories of offences in the previous reports. All of this makes it impossible to generate comparative data or establish trends. The new offences that get reflected as distinct categories and cannot be ignored while computing data on child sexual abuse are – attempt to rape, murder with rape/POCSO, publishing or transmitting of material depicting children in sexually explicit act.
2. The 2017 report maintains that it has followed the “principal offence rule” while computing data. This rule is followed to avoid double counting of the same data. However, examination of the data on sexual abuse shows some anomalies, which places a doubt on the extent this rule has been followed. For example, the Limitations and Disclaimer section in the report categorically states, “Murder with Rape is accounted for as Murder”. The category of ‘Murder’ thus includes two sub-categories, i.e., ‘Murder with rape/ POCSO’ and ‘Other Murder’. Such data has never been made available for the previous years. As a result, this has a tremendous impact on the assessment of number of sexual offences against children, showing a frightening 53.4 per cent increase in 2017 over 2016 (from 33,406 cases in 2016 to 51248 cases in 2017).
3. The 2017 Report has tried to give more detailed information on certain aspects of sexual offences against children, including gender disaggregated data. However, it is still half-baked on certain critical aspects of implementation of the laws. For example, while the data on number of conviction cases from the current year and the previous years is available separately, a calculation on disposal of cases within the same year is not possible because similar bifurcation is not available for other forms of disposal, including cases that ended in acquittal.

Similarly, the inclusion of data on offences against children by care takers/in-charge of childcare institutions is encouraging. Nevertheless, it can be further improved to give a sense of how many of these cases were of child sexual abuse.

Much has happened in India in the last decade to break the silence surrounding sexual crimes against women and children yet reporting remains dismal. An analysis by Live-mint based on comparison of data from NFHS-4 and that obtained from the NCRB shows that an estimated 99.1% of sexual violence cases do not get reported.[15] While such a finding pertains to women, to what extent does this hold true for children is not known and cannot be estimated. Current data as well as experiences of those working with children have suggested that the provision of mandatory reporting has not really helped in increased reporting on child sexual abuse. Cases that get reported are largely those where hiding the fact of abuse is difficult or reporting is required to protect family and/or community honour.

Needless to say, it takes time for every new law to roll out. But if implementation of critical pieces of legislation, particularly laws like the POCSO Act, remains poor even after almost six years of its coming into force, there is a need for serious review. Unfortunately, the existing data and the manner in which data is computed does not help in carrying out such a review.

Also Read : Legitimacy of children of void and voidable marriages

THE CHALLENGE OF TREND ANALYSIS

Over the years, the use of the POCSO Act to book and try sexual crimes against children has improved. However, a combination of both, the IPC provisions, and provisions of the POCSO Act, is used to register FIRs as also in framing of charges for trial by the courts, because the POCSO Act provides for punishment that is higher in degree. This poses a challenge in computing and analysing the trends. Although the NCRB has been revisiting and revising its methodology to provide a more accurate picture on the number of sexual crimes against children, in doing so it has also made any trend analysis difficult.

The NCRB has been following the ‘Principal Offence Rule’ since 2013 for counting of crime, which implies that among many offences registered in a single FIR case, only the most heinous crime (maximum punishment) will be considered as counting unit. But the 2016 Crime in India publication states that this rule has not been followed for the chapter on crimes against children.[16]

In 2016, most sexual offences against children were computed under the POCSO Act, even if cases were booked under the IPC provisions. The only exception is cases under section 377 of the IPC, which continue to be reflected under a separate category. It is not clear whether these are in addition to the cases of penetrative sexual assault of male children booked under the POCSO Act. This confusion continues even in 2017 data. In fact, in 2017, the Crime in India report produces a set of new and confusing statistics. It contains data for certain new categories of sexual offences that never used to be provided earlier, such as ‘Attempt to commit rape’, ‘Murder with rape/POCSO’ and ‘Publishing or Transmitting of material depicting children in sexually explicit act’.

Publication of more recent crime data by the NCRB and data which is based on integration of the information management systems of the courts, police and the prison authorities may help provide a better picture. However, as of now, it is difficult to draw any conclusive inference on trends in reporting of sexual crimes against children.

Therefore, Child sexual abuse is a multidimensional problem having legal, social, medical and psychological implications. There are certain drawbacks in the law around the following issues:

(a) Consent: If the child/adolescent refuses to undergo medical examination but the family member or investigating officer is insisting for the medical examination, the POCSO Act is silent and does not give clear direction. There is an urgent need to clarify the issue of consent in such cases. However, it would be prudent to take informed consent from parent when the survivor is a child (below 12 years) and consent from both parent and the victim, if the survivor is an adolescent (age group from 12 -18 years). However, emergency treatment needs to be initiated without getting into this consent issues or legality to protect the life of the child.

(b) Medical examination: The POCSO Act, Section 27(2) mandates that in case of a female child/adolescent victim, the medical examination should be done by a female doctor. However, the law mandates the available medical officer to provide emergency medical care. On the other hand, the Criminal Law amendment Act, Section 166A of Indian Penal Code mandates the Government medical officer on duty to examine the rape victim without fail. This conflicting legal position arises when female doctor is not available.

(c) Treatment cost: The law has casted legal obligation on the medical fraternity and establishment to provide free medical care to the survivors. If there are no proper facilities or costly procedure is required, the State should take responsibility of reimbursing the cost, otherwise hospital may provide substandard medical treatment procedure or may deprive the survivor from comprehensive treatment.

(d) Consented Sexual Intimacy: Sexual contact between two adolescents or between an adolescent and an adult are considered illegal under the POCSO Act 2012, because no exception has been granted in the Act under which an act of sexual encounter with a person under 18 is an offence irrespective of consent or the gender or marriage or age of the victim/the accused. However, it is proposed that any consensual sexual act that may constitute penetrative sexual assault should not be an offence when it is between two consenting adolescents, otherwise both the adolescents will be charged under the POCSO Act, 2012. On the other hand, the latest amendment of the Indian Penal Code concerning rape laws in 2013[17] clearly reports that the age of consent for sex has been fixed to 18 years, hence, anyone who has consensual sex with a child below 18 years can be charged with rape, which may increase the number of rape cases. One more serious repercussion is that obstetric and gynaecologists need to report all the MTP (medical termination of pregnancy) cases performed on children (below 18 years).

(e) Child Marriage: Child marriage and consummation of child marriage are considered illegal under the POCSO Act, 2012. In India even though child marriage is prohibited under secular law, it enjoys sanction under certain Personal Law thus complicating matters.[18] These issues need to be addressed when the law is open for amendment.

(f) Training: There is an urgent need to train the medical, teachers, judicial, advocates and law enforcing agencies in the POCSO Act, 2012. Research, information, monitoring and sensitizing the public are the biggest challenges. Training all the stakeholders is one of the important variables in providing comprehensive care and justice. There is also an urgent need to train all the medical undergraduates and primary health care doctors in providing child friendly interview, structured assessment, collecting evidence, prophylaxis for sexually transmitted diseases and HIV, family counselling and regular follow up.

(g) Reporting: It is well known that the cases of child sexual abuse are usually not reported. Further, knowing and reporting child sexual offence is highly difficult and highly personal decision for many family members and also for survivors. Both survivors and family members feel embarrassed and ashamed bearing the guilt, anger, frustration and emotional turmoil of the act. The fear of re-victimization because of medical examination, criminal justice system and poorly informed society members keeps them silent and undergo torture for long duration.

SUGGESTION AND RECOMMENDATION

In India, child rights, protection and exploitation (street children, child labour, trafficking etc.) are intimately linked to poor socioeconomic conditions in a large population base. Survival, early child health care, nutrition, education, development and child protection are most crucial child rights. Illiterate parents are ignorant of their children rights. They must be made aware of child rights, must demand and fight to obtain them. Multidisciplinary child professionals should work together and monitor the government efforts in protection of child rights.

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 children.[19] 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.

There should be able to collate available national child health indicators, address key issues and concerns in their region, involve children in research and facilitate their participation in projects and policy development. There is an urgent need to assign responsibility and accountability to Government, elected representatives, policy makers, proximate community and education and empowerment of families.

Following are some suggestion and recommendation for the child sexual abuse in India accordingly to this paper are:

• Policy leadership is needed to help integrate family violence treatment and child sexual abuse enforcement and support actions and preventive interventions and to foster the development of evaluation of comprehensive and cross problem interventions that have the capacity to consider outcome beyond reports of future violent behaviour.
• 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.
• Health and social providers need to develop safeguards to strengthen their documentation of abuse and histories of family violence in both individual and group records regardless of whether the abuse is reported to authorities.
• That there should be home visitation programs to particularly encouraged for first-time parents living in social settings with high rates of child maltreatment reports.
• Commercial sex workers are needed to develop effective ecological models for prevention and treatments of CSA that are sensitive to the diversity of vulnerabilities of children and adolescents in Indian context.
• Panchayat members can play an important role in prevention of sexual exploitation in children. They need to make the community members understand that both girls and boys are vulnerable to sexual exploitation and it is important to support the victims of this offence. The panchayat members can generate awareness about this at the village level. They should ensure that confidentiality of the victims is maintained all along. If any child in the village is a victim of sexual exploitation, the panchayat members need to contact the nearest police station, file an FIR and seek legal support.

CONCLUSION

Children are the greatest gift to humanity and represent approximately 17% of the world population and they are remark as the future generation, hence for the betterment of the future, their sexual abuse is one of the most heinous crimes imaginable. It is an appalling violation of their trust and an ugly breach of our commitment to protect the innocent, therefore it is the immense need of the time that they should be educated in this regard for awareness towards their rights and protection as well.

Reliable estimates are hard to come by since this is a secretive form of abuse, often causing victims to suffer in dark and claustrophobic silence. Child sexual abuse is a dark reality that routinely inflicts our daily lives but in a majority of cases it goes overlooked and unreported on account of the innocence of the victim, disgrace attached to the act, callousness and insensitivity of the investigating and the law enforcement agencies, etc.

Children, owing to their developing mind are vulnerable to the environment they are in. It is of utmost importance that such environment is made suitable for their growth and development, regardless of whether such child conflicts with law or not and be given adequate care and protection of the law. Though the Protection of Children from Sexual Offences Act, 2012, Criminal Law (Amendment) Act, 2013 and Indian Penal Code of 1860 provided strict punishment for the Child sexual abuse, but merely enacting laws will not be enough unless this is followed by strict enforcement of the law with accountability defined. 

No nation can flourish if children of such nation suffer from abuse or vulnerability therefore, India with the help of various international, national and state mechanisms tries to secure the rights of the children as has been discussed in above mechanisms. The NGO’s too are tirelessly working for the protection and perform rescue work of children pushed into child labour, children facing abuse in the community, children trafficked, children affected by a calamity or emergency situations. Executing programs in India’s remotest parts, the NGO’s are driven by the premise of ensuring happy and safe childhood for all children.

Also, parents, teachers and others in the community of the society have a crucial role to protect children from sexual exploitation and abuse. Children are the country’s greatest human resource, and a measure of the country’s social progress lies in the wellbeing of its children; that they are healthy, educated, safe, and happy and have access to life opportunities. It is our duty that Child Sexual Abuse should be combated as early as possible. This will be helpful in the progress of India and develop in a crime freeway, as children are the leaders of tomorrow.

[1] World Health Organization. Report of the Consultation on Child Abuse Prevention. Geneva: WHO, 1999, available at: http://www.who.int/mip2001/files/2017/childabuse.pdf (visited on January 25, 2021).

[2] Kacker L, Varadan S, Kumar P. Study on Child Abuse. India: Ministry of Women and Child Development, Save the Children and UNICEF, 2007, available at: http://wcd.nic.in/childabuse.pdf (visited on January 25, 2021). Sexual Abuse Of Children

[3] Southall DP, Samuels MP, Golden MH. Classification of child abuse by motive and degree rather than type of injury. Arch Dis Child, available at: https://adc.bmj.com/content/88/2/101 (visited on January 25, 2021).

[4] Child sexual abuse: issues and concerns, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/ (visited on January 27, 2021). Sexual Abuse Of Children

[5] National Center for Biotechnology Information, Child sexual abuse in India: a systematic review, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6177170/ (visited on February 27, 2021).

[6] Dr. Asha Bajpai, Child Rights in India, Oxford printing press (New Delhi) 2003.  

[7] National Report on “World fit for children”- Ministry of Women and Child development 2007.

[8] Third and Fourth Combined periodic report on the Convention on the Rights of the Child 2011. www.wcd.nic.in (visited on February 27, 2021). Sexual Abuse Of Children

[9]  Annual Report 2014, Child line Organization (Child Sexual Abuse and law).

[10]  Pilot Study by Trupti Panchal, TISS, Mumbai, available at: https://www.tiss.edu/uploads/files/3LetThemFly.pdf (visited on February 28, 2021). Sexual Abuse Of Children

[11] The Protection of children from sexual offence ac of 2021, available at: http://wcd.nic.in/childact/childprotection31072012.pdf (visited on February 28, 2021).

[12] POCSO Act – Providing Child-Friendly Judicial Process. Press information Bureau, Government of India. available at: http://pib.nic.in/newsite/efeatures.aspx.?relid=86150 (visited on February 28, 2021).

[13] Jyoti Belur, Brijesh Bahadur Singh (Child sexual abuse and the law in India: a commentary), available at: https://crimesciencejournal.biomedcentral.com/articles/10.1186/s40163-015-0037-2 (visited on January 28, 2021).

[14] The News Minute: crime against children rising steadily, NCRB 2017 data reveals, available at: https://www.thenewsminute.com/article/crimes-against-children-rising-steadily-ncrb-2017-data-reveals-110972 (visited on January 28, 2021).

[15] Bhattacharya, Pramit and Kundu, Tadit. 24 April 2018. 99% cases of sexual assaults go unreported, govt data shows, Livemint. available at: https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html (Visited on January 28, 2021). Sexual Abuse Of Children

[16] Editorial, “NCRB follows international practice to count crime” The Hindu, September 13, 2013. Sexual Abuse Of Children

[17] The Criminal Law (Amendment), 2013, available at: http://indiacode.nic.in/acts-in-pdf/132013.pdf (visited on February 3, 2021). Sexual Abuse Of Children

[18] Raha S, Giliyal , a child marriage and the protection of children from sexual offence act 2012, centre for child and law    (CCL) , available at: https://www.nls.ac.in/ccl/justicetochildren/poscoact.pdf (visited o February 3, 2021).

[19] 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.