Protection of Children from Sexual Offences: Law and Its Effectiveness

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES: LAW AND ITS EFFECTIVENESS *INTRODUCTION Childhood is considered to be the most crucial phase of human growth and also the most memorable one. It is much more than just the space between birth and the attainment of adulthood. It is a precious time in which children should live free from fear, safe from violence and protected from abuse and exploitation. It’s time for children to be in school and at playground, to grow strong and confident with the love and encouragement of the family and an extended community of caring adults. But what if the childhood becomes a never ending nightmare? A childhood where child refuses to go to school out of an unusual fear? A childhood where he refuses to play outside as he is scared to be surrounded by people? Just imagine a childhood when his own house, the safest place for a child turns out to be an exploitation camp by his own inmates. The entire childhood get raped! We can’t imagine of anything more horrific. The stories of abuse and exploitation of children is all around us. We read about them in the papers, watch them in news and see hundreds of children being exploited as we go about our everyday lives. As per a study conducted by Ministry of women and child department, 53 percent of children in India have suffered some kind of sexual abuse in their childhood and the more shocking fact is that unlike the ordinary notion, 50 percent abusers are known to the child or in a position of trust or responsibility.
*CHILD SEXUAL ABUSE DEFINED
Child abuse may be emotional, mental, physical or sexual and encompasses a much wider gamut of actions .On the other hand Child sexual abuse is that which targets sexuality and/or sexual organs, involves sexual gestures, words, pictures, actions. It’s the most heinous manifestation of abuse of children as it traumatizes the child for the whole life in all ways, sexually, physically, psychologically and socially, leaving behind a scarred childhood and a disillusioned adulthood caused by the past memories. According WHO, child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give consent to or that violates the laws or social taboos of society. While releasing the Report on Child abuse in India, 2007, Women and child Development minister, Renuka Chaudhary said “child abuse is shrouded in secrecy and there is a conspiracy of silence around the entire subject”. Both the government and the NGO’S working in this field find it difficult to get the accurate data.
*INDIAN CONSTITUTION, INTERNATIONAL CONVENTION AND THE LEGISLATIVE LAWS: RECOGNITION OF THE CHILD RIGHTS AND THEIR PROTECTION Looking into the details of child abuse in India, our legal framework and the relevant legislations, Indian constitution recognising the vulnerable position of children and various crimes against children that are linked to sexual abuse provides for their protection from such offences. Article 15 provides for special attention to children through necessary and special laws and policies that safeguard their interest. Article 23 provides protection against human trafficking and forced labour. Article 24 and 39 specifically prohibits children from engaging in hazardous employment and protection from exploitation respectively. Thus Indian constitution has provided for a framework which serves as a direction to the legislature to make child protection laws. India’s commitment to the issue is also emboldened by the fact that India is a signatory nation to the UN Convention on the Rights of Child, 1989. One important regional convention here is the SAARC convention on preventing and combating trafficking in women and children, 2002. Looking at the legislative laws the parliament of India recently passed Protection of children from sexual offences Act, 2012. The act has filled a glaring lacuna in the law. We will get into the details of the Act at the later stage of the essay as the law has just come into force and we are yet to see its impact. To appreciate the new act we have understand the history of child sexual abuse laws in India and their effectiveness so far.
Before the above mentioned law was passed the cases of child sexual abuse were dealt under the following sections of IPC. Section 375 defines rape; section 376 provides for the punishment of rape which shall not be less than seven years but which may extend to ten years unless the women raped is his own wife and is not under twelve years of age in which case, he shall be imprisoned with a term which may extend to two years or fine or both. When the girl is less than 12 years or where the rapist is a person in authority (in a hospital, children’s home, a police station etc.), the punishment is greater; section 377 which relates to unnatural offences. This section is generally invoked when boy children are sexually abused; section 354 which deals with outraging the modesty of a woman or a girl and section 509, which relates to insulting the modesty of a woman. The ordinary criminal laws are totally inadequate to protect the children from sexual abuse. IPC does not recognize the term “child sexual abuse”. Firstly section 375 restricts itself to just penile penetration. Secondly it does not treat forced sexual intercourse by a husband against the wife (above 15 years) as an offence. Thirdly there is no statutory definition of modesty. It carries a weak penalty and is a compoundable offence. Moreover it does not address outraging the modesty of a male child. Fourthly sexual offences against men are covered under section 377 which does not cover the offence adequately. The term unnatural offence in not defined. It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalize sexual abuse of children .Lastly and most importantly IPC laws relating to sexual offences are not gender neutral. This is due to an age long myth that only females are sexually abused and only males are abusers leaving the female abusers out. But the 2007 Report has given a severe blow to this long standing myth which revealed that out of total child victims, 52.94 percent were boy children. Yes! It’s shocking. Male children are equally vulnerable and a boy being raped does exist! Besides IPC, there are other legislations also. Obscenity and pornography are dealt under the Young persons (harmful publications) Act, 1956. A young person means a person under the age of 20 years. It is an offence to sell, let, hire, distribute or publically exhibit harmful publications. Other than this under section 67 of the Information Technology Act, 2000 publication and transmission of pornography through the internet is an offence. The Juvenile Justice Act, 2000 deals primarily with children in conflict with the law and their rehabilitation. It does not provide adequately for children in need or identify offences against child victims * In addition to children other than those who are abused within their family by their relatives or friends or by strangers at any public place, there are three organised form of sexual abuse of children which are globally prevelant and form a major percentage of sexually abused children. And these three forms are trafficking in human, child labour and child marriage. Human Trafficking as defined in the Un is “the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or service, slavery or practices similar to slavery, servitude or the removal of organs.”Quoting from an article written by Havovi wadia “Among the Naths of Bihar, prostitution is a way of life. When a family doesn’t have a daughter, girls are purchased from other parts of the state and pushed into sex work so that the family can live off their earnings.” Children who work as domestic labour, or help in hotels and restaurants, are susceptible to sexual abuse at the hands of employers and customers. The Immoral Traffic (Prevention)Act protects children below the age of 16 from being used for the purposes of commercial sex. Immoral trafficking of children who generally leads to prostitution is one of the most heinous manifestations of violence against children. The US Department of State trafficking in Person report have placed India in Tier II watch list for a second consecutive year for having failed to combat human trafficking. A number of children go missing every year – some are sold by their families, some are kidnapped, others lured by the promise of a better life both for themselves and their kin. According to CRY (Child Rights and You). * 8,945 children go missing every year. * 500,000 children are estimated to be forced into the sex trade every year * Approximately 2 million child commercial sex workers are between the ages of 5 and 15 years * Approximately 3.3 million child commercial sex workers are between 15 and 18 years * Children form 40% of the total population of commercial sex workers * 80% of these children are found in the five metros – Delhi, Mumbai, Kolkata, Chennai and Bangalore * 71% of them are illiterate.
Child marriage gives the abuser a societal passport to sexually abuse the child. Child marriage is practiced globally but it is especially prevalent in India where more than one third of all child brides live. According to UNICEF, 47% of girls are married by 18 years of age, and 18% are married by 15 years of age. A study conducted in India by International research centre for women showed that girls married before 18 years of age are twice as likely to be beaten, slapped, or threatened by their husbands and three times more likely to experience sexual violence.] Young brides often show symptoms of sexual abuse and post traumatic stress.Though the Prohibition of Child Marriage Act, 2006 makes the practice of marrying girls under the age of 18 and boys under the age of 21 punishable but its implementation has not been very effective. We can still find minor couple tying the knot on “Akkha teej”, a summer festival believed to be auspicious for wedding. This is gross violation of law. Many in urban slum areas get their children married young to protect them from sexual abuse. Once a girl attains puberty she begins to be seen as sexually available. For some parents marriage is the only way to ensure that the girl is ‘unavailable’ to others for abuse. The 2007 Report reveals the percentage of child sexual abuse is highest in work areas, which is 61.61 percent. The Juvenile Justice Act, 2000 Section 26 (Exploitation of Juvenile or Child Employee) provides for punishment if a person procures a juvenile for hazardous employment. The Child Labour (Prohibition and Regulation Act) was enacted in 1986, to specifically address the situation of children in labour. However, this law distinguishes between hazardous and non-hazardous forms of labour, and identifies certain processes and occupations from which children are prohibited from working. It leaves out a large range of activities that children are engaged in and are exploited and abused. The large-scale exploitation and abuse of children employed in domestic work and hotels are cases in point. The other abuse Child trafficking is one of the most heinous manifestations of violence against children.
*PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012: ITS EFFECTIVENESS AND A CRITICAL ANALYSIS
Now coming to the recent legislation which has addressed the various loop holes in the existing laws to a great extent is the Protection of children from sexual offences Act, 2012 .It’s a historic law .Though India became a signatory to the UN convention on the rights of the child back in 1992 but it took India twenty long years to enact a separate law dealing with the offences against children. The Act is headway stronger than all the earlier child sexual abuse laws. The Act, on the lines of the UN convention defines a child as any person below the age of 18 years and provides protection to all the children from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. Firstly it acknowledges and engages with sexual crimes of all kinds -- real/virtual; penetrative/ non- penetrative; homosexual/ heterosexual/ bestial; verbal/ physical. This is a major improvement on the earlier situation, when child sexual abuse was clubbed with sexual abuse of adults. Secondly it acknowledges that sexual violations can be of various kinds and that in the case of children, the state must take a clear punitive stand on any kind of sexual violation. Thirdly it is gender inclusive, accepting that the perpetrators as well as the victims may be either male or female. It is otherwise commonly assumed that sexual abuse can only be initiated by a male upon a female. Fourthly it lays down stringent punishments (up to life imprisonment) for a broad range of sexual crimes such as nonpenetrative sexual assault, sexual harassment, and the use of children for pornography. Fifthly the legislation is also marked by the introduction of special procedures to prevent the re-victimisation of children at the hands of an insensitive justice delivery system. These include measures for recording a child's evidence, for protecting his or her identity and for providing children with assistance and expertise from professionals in the fields of psychology, social work and so on. Sixthly for speedy trials the Act has provided for the establishment of special courts and the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible. And lastly giving due attention to vulnerability and innocence of children the Act has put the onus of innocence on the accused.
The present act is certainly welcoming and addresses the sexual offences against children effectively and efficiently. The bill has taken a comprehensive view and has broadened the sphere of child sexual abuse. That said there is one provision of the Act which has sparked controversy and that is the “age of consent”. Eighteen has been kept the age of consent and any sexual activity between consenting adolescents would be considered criminal.
People from different sections of the society and those working in the field of child rights have shown their disagreement with the view taken. Since this Act criminalises any sexual activity with persons under the age of 18 years (even if it is consensual), is said that the police may misuse it to harass the young couples or parents may use this law to control olden children sexual behaviour. Additional sessions judge Kamini Lau,of a Delhi court ,while acquitting a youth of the charges of kidnapping and raping a 17-and-a-half-year-old girl, to whom he got married and is now having a child with, called the said provision of the Act of increasing the age of consent from 16 to18 to be “regressive” and “draconian”. The remarks were made while referring to the conditions in western countries where there are adequate safeguards for protection against sexual offences. "No doubt, there is an urgent need to protect children from sexual offences, harassment and pornography but at the same time it is necessary to ensure a close-in-age reprieve and a lenient view in case of close-in-relationship as adopted by various western countries where there is no exploitative coercive situation including impersonation, fraud, fear, threat and false promises. The need is to correct this behaviour and not punish” she said. Flavia Agnes in Indianexpress said that the age of consent for sexual intercourse has always been contested. In 1860, 10 years was the stipulated minimum age. But the furore caused by the death of an 11-year-old girl at the hands of her 35-year-old husband through forcible penetration led to the raising of the age of consent to 12 years in 1892. Later, during the nationalist movement, when women’s groups entered the political arena, they highlighted the adverse effects of early pregnancy upon women’s health, and demanded that the age of consent to marriage and sexual intercourse be raised to 14 years. Then, the age was raised to 15 years in 1949, and later to 16 years. Consensual intercourse with a girl under this age was construed as “statutory rape”. But the provision made a concession to the husband, who was permitted to have sex with his wife if she was above the age of 15. This dichotomy and confusion persists as the age of marriage under the Hindu Marriage Act and the Prohibition of child marriage act is 18 years and 21 years for a female and a male respectively. The proposed bill aims to resolve this confusion by stipulating a uniform age for marriage as well as sex, and inadvertently contributes to a puritanical notion that marriage and sex are synonymous. Ms Taparia, founder of Mumbai-based organization “Arpan” which works in the field of child sexual abuse says “We need to treat the bracket of ages 16 to 18 differently. If a child is raped, then you bring it under the judicial purview, but if it’s consensual sex between two people who are both within the age bracket 16 to 18 years, then it shouldn’t be criminalized. Puberty is coming early…So it’s regressive to take the age of legal sex to 18 years”.

*RESPONSIBILTY OF CHILD PROTECTION Children are vulnerable sections of the society which needs care and protection for their normal growth. Children are primarily considered to be the responsibility of their family. It’s true that there is no substitute of family’s love and care and their can’t be a better place for a child to live in but what if their own house turns out to be an exploitation camp? For the formation of a protective environment at macro level and for the proper enforcement of child laws it’s the collective responsibility of the family, community, civil society and the state. India has always been on a denial mode when it comes to incest. But the truth is rather shocking! A report from RAHI, a Delhi based NGO working with child sexual abuse titled ‘Voices from the Silent Zone’, suggests that nearly three-quarters of upper and middle class Indian women are abused by a family member -- often an uncle, a cousin or an elder brother. The infamous Incest Mira Road case rocked the whole country. The girl victim said in her statement that "There were times when I had given up on life completely. When a child is in trouble, he first approaches her parents for help and protection, but who would protect me from my own father who had behaved like a beast?'' Who is to look after children in such a situation? Family certainly is a stakeholder but they couldn’t and are not the only protectors. Children are “national asset” to this country and it’s the collective responsibility of the family, state, NGO’S, community and the civil society to protect them.
A child that grows up protected from violence and abuse is more likely to grow up physically and mentally healthy, confident and self-respecting and less likely to abuse or exploit others. By contrast, when children are left unprotected and vulnerable to exploitation and abuse their childhood their rights are fundamentally undermined. It was pointed out in The Essentials of child protection that ensuring a protective environment is the responsibility the governments, international organisation, civil societies, families and individuals. A protected environment is one in which a child is assured of living in safety and with dignity. It is one that ensures that children are in school, laws are in place to punish those who exploit children, governments are truly committed to protection, communities are aware of the risks that children faces, civil society addresses certain “taboo” issues and monitoring is in place to identify children who are at risk of exploitation. Children will never be free from exploitation until all levels of the society from the family to the international community work together.
*PRESENT LEGAL SYSTEM AND THE RIGHTS OF THE CHILDREN: COMMISSIONS, POLICIES AND PROGRAMMES
The UN convention on the rights of the child has provided for four basic rights to every child and these are survival, development, protection and participation. India is a signatory to this convention. To fulfil its commitment we have already mentioned the various legislations that have been enacted to protect the child rights. Other than that to facilitate the laws made, several policies have been enacted. The National policy for children was enacted in 1924.The National charter for children was adopted in 2003.This charter consists of the inherent rights of a child and that the state is duty bound to provide the same. Among other rights it includes protection from economic exploitation and all forms of abuse. Several Ministries and Departments of the Government of India are implementing various schemes and programmes for the benefit of children. Integrated child development service scheme is one such scheme that has taken various other governmental schemes under its purview. Government of India has also set up the childline India foundation, an organization to provide assistance to children. It has a toll free number on which anybody can seek help in the interest of the child. An important step has been taken by the govt with the establishment of National commission for protection of child rights under the commission of the protection of child rights Act, 2005.it is an important step because the Commission's Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. It also provides for the establishment of state commission for the protection of child rights. It mainly aims to decentralize the commission at district and state level so that grass root problems can be addressed effectively.

*NEEDED REFORMS IN THE LEGISLATIVE FRAMEWORK, GROUND WORK AND OUR ATTITUDE TOWARDS CHILDREN
*Governmental commitment towards child protection: The Government has got a very crucial role to play in the creation of protective environment for children by the formulation of effective policies, strong legal framework and programming and allocation of adequate resources to the programme.
An exercise of budgeting conducted by Ministry of Women and child Development, revealed that the share of the union budget for children in 2006-2007 was 4.91%, of this the share of child protection was 0.034%.According to 2001 census, children constitute 42% of India’s population which is a huge population to look after. And with number they certainly deserve more space and attention in the annual budget. At the programmatic level, the existing mechanism for child protection in India is primarily based on several small schemes implemented by different ministries and department. The need is to centralize these schemes under a single programme which specifically addresses child protection rights. Setting up laws is not enough. Implementation has always been a problem in India. The concerned ministry must ensure that laws are being followed.
*Attitude and Practices: It must be ensured that we are living in a society that does not facilitate exploitation. Such as even after strict prohibition laws we still see and read about child marriage, devdasis still exist in many parts of the country, female genital mutilation for the misunderstood religious beliefs, Myths such as sexual intercourse with children cures sexually transmitted diseases (this is rampant in Africa).society must be freed from such practices to create a child friendly environment.
*Open discussion including civil society and child participation: There should be open discussion about sexuality and some basic sex education must be added to the curriculum in schools. Very often children do not even realize that they are being abused. The children must be taught to break the silence and this can be done only by confidence building. The National commission for the protection of child rights has provided for state commissions. Till now 15 states have establish the commissions in their states. This should be followed in rest of the sates also. There should be further decentralization at the district and block level. The commission has also stresses on the participation of children. Children are less vulnerable to abuse when they know their rights are not to be exploited and when they know the services available to protect them. In Brazil, the street children have found in the National movement of street boys and girls, a space for participation that has permitted them to become aware of their rights and a platform to fight for their rights. Consulting children can be of immense help to policy makers and planners. In Bangladesh, to develop a national plan of action against sexual abuse and exploitation several children such as those involved in sex work were consulted. Most of the children’s recommendation were included in the National plan of 2002 a ‘child task force’ is also established as a part of monitoring and implementation of the plan.Youth parliaments both at the national and the state level should be established and this should be extended to street children also other than school going children. If not government than this can also be organized by NGO’S. let their voices be heard. It would give them a common platform to discuss their grievances and other issues.
Capacity of families and communities: All those who interact with children—parents, teachers, religious leaders alike – should observe protective child-rearing practices and have the knowledge, skills, motivation and support to recognize and respond to exploitation and abuse. As pointed out in Report 2007 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. It was pointed out in the Report 2007 that 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 emboldened to continue the abuse and to press his advantage to subject the child to more severe forms of sexual abuse. Parents should create friendly relations with their child and tell them about their sexual organs slowly. Children should be told about “safe and unsafe touch”. Parents should have an “I believe you” approach and must not blame the children for the abuse. IT’S NOT THEIR FAULT! Schools can play an important role here. Annual workshops on child protection should be conducted in schools. Every school should also have a grievance cell where child counselling can be done. Monitoring, reporting and oversight: There should be monitoring, transparent reporting and oversight of abuses and exploitation. As per Report 2007, only 3.4 percent of children were found to have reported to the police. Almost 12 percent told their parents where as 72.1 percent of children kept quiet. Parents, individuals, friends and neighbour should always report the matter to the police or should at least seek help from any concerned Ngo’s. Any silence will only encourage the abuse. CONCLUSION Children while constituting 40% of our population are “national asset”. Their development, protection and safety are not only our responsibility but is essential for the country’s growth as a whole. As we said in the beginning of the essay, it’s just not the child but entire childhood gets raped. Most of children get raped even before they get to know that there is something called “rape”, “abuse”, or “sexual assault”. In fact the whole society gets raped. There cannot be anything more heinous than sexually targeting the vulnerable children who are absolutely unaware of the perverted thoughts prevailing around them. All the malpractices associated with the children should be seriously looked upon and we need to be more sensitive towards children. Protecting children is our collective responsibility. Moreover it’s high time we replace the word “vulnerable” with “empowered”. Our policies should be based on empowering the children. It’s their right to have a happy and save childhood. Legislature should make strict and effective laws. The present Protection of children from sexual offences Act, 2012 is certainly the strongest and most effective so far. The government must see that the implementation machinery is working effectively. The various NGO’S working for the child rights should keep a check on the implementation process. This is what they can do. Reporting the matter to the police or to any concerned authority, looking after the child and breaking the wall of “silence” is our responsibility. Give the children what is theirs. All they are asking for is a happy and a safe childhood!

--------------------------------------------------------------------------------------------------------------- Submission by- Name: Swati Ghildiyal Course: LLB, 2nd year College: Campus law centre, Faculty of law, Delhi University.

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[ 1 ]. wcd.nic.in/childabuse.pdf
[ 2 ]. ibid
[ 3 ]. The Convention on the Rights of the Child, 1989 is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. It stresses on special care and protection of children worldwide.
[ 4 ]. http://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.html
[ 5 ]. http://www.state.gov/documents/organization/47255.pdf
[ 6 ]. http://america.cry.org/site/know_us/cry_america_and_child_rights/statistics_underprivileged_chi.html
[ 7 ]. http://www.theelders.org/docs/child-marriage-factsheet.pdf
[ 8 ]. http://www.unicef.org/infobycountry/india_statistics.html
[ 9 ]. United States Agency for International Development, 2007, "New Insights on Preventing Child Marriage: A Global Analysis of Factors and Programs," pg. 9
[ 10 ]. http://www.icrw.org/child-marriage-facts-and-figures
[ 11 ]. A lawyer and director of “Majlis”http://www.majlisbombay.org
[ 12 ]. http://www.indianexpress.com/news/consent-and-controversy/948277/
[ 13 ]. http://www.arpan.org.in/
[ 14 ]. http://www.rahifoundation.org/home.html
[ 15 ]. http://articles.timesofindia.indiatimes.com/2009-03-21/mumbai/28047758_1_tantrik-hasmukh-rathod-girl
[ 16 ]. http://www.childlineindia.org.in/pdf/Essentials-of-child-protection-Oct%2008.pdf
[ 17 ]. http://wcd.nic.in/childabuse.pdf
[ 18 ]. Child and the Law, by Laxmidhar chouhan, 2008 edition, page no.48 and 53.