Paradigms of Socio-Legal Paradoxes Pertaining to Sexual offences against Children

  1. INTRODUCTION:

“If there must be trouble, let it be in my day, that my child may have peace”[1]

Children are the greatest gift to humanity and their sexual abuse is one of the most heinous crimes imaginable. In any civilized society, children are “supremely important national asset”[2] and the future of the nation depends upon how its children grow and develop. However, these wishful and optimistic sayings looks shallow when one encounters the reality of child abuse and exploitation in the organized and unorganized sectors of the country.[3] As per the 2011 Census, children constitute about 42% of India’s total population,[4] and around 50% of these children are in need of care and protection. Child Sexual Abuse is a reality that children in India have been facing irrespective of their gender or social position.[5]

The Standing Committee on Sexually abused Children[6] has defined Child Sexual Abuse (CSA) as “Any child below the age of consent may be defined to have been sexually abused when a sexually

matured person has by design or by neglect of their usual societal or specific responsibility in relation to the child engaged or permitted engagement of that child in any activity of a sexual nature which is intended to lead to the sexual gratification of the sexual mature person.” This definition pertains to whether or not the act involves genital or physical contact, whether or not initiated by the child and whether or not there is discernible harmful outcome in the short run.

The United Nations Organization has defined Child Sexual Abuse as contacts or interactions between a child and an older or more knowledgeable child or adult (stranger, sibling, caretaker etc.), when the child is being used as an object of gratification for the older child’s or adult’s needs.[7]

Inherent in these definitions are concepts of violation of trust, abuse of power, the child’s ability to consent, the cognitive, emotional breakdown of the child, unforgivable lust of the abuser etc.

Child sexual abuse includes, but is not limited to rape, sexual intercourse with a child, incest; it also consists of non-physical contact and non-penetrative activities, such as involving children in watching sexual activities, encouraging children to behave in sexually explicit ways and exposing them to inappropriate sexual material.[8] A majority of such cases occur in home, school or in the neighbourhood, where the child is supposed to be protected. In maximum cases, the abuser is a known person in the family’s immediate circle. As per statistics on record, in about 85% of the cases, the child’s relatives, family members or someone known or trusted by the child is involved.[9] In a study by the World Health Organization, 47.6% of young women and 31.9% of young men claimed that their first intercourse was forced or somewhat coerced by family members or persons known to their family.[10] Further, the abusers are often respectable men holding position of responsibility in the family, society, workplace, fulfilling their duties as per the demand of their role.

As per government Reports, in India, a child is sexually abused every fifteen minutes.[11] According to data released by National Crime Records Bureau, 106,958 cases of crimes against children were recorded in 2016, out of which in 19765 cases, the abuser is booked under the Section 376 IPC and Sections 4 & 6 of the POCSO Act.

Victims of CSA includes both young boys and girls.[12] The attitude of people to only acknowledge young girls as victims of sexual abuse needs a second thought in present day context. As many as 814 cases were lodged under Section 377 IPC, where the victims were children.[13] In a recent case, as published in Hindustan times,[14] the accused abducted, and ultimately, murdered two young siblings of each gender, after fulfilling sexual lust.

A majority of CSA cases go un-reported for reasons like shame, ignorance, family honour etc. There are instances, where there is no one in the child’s family to report abuse. Also, in many cases the abuser escapes from conviction on grounds of want of evidence. When the crime is against a male child, the social stigma involved in even accepting the fact that one’s kin has been subjected to sexual assault of a homosexual nature is too much to handle, making a majority of them hide it under an iron veil, instead of reporting it.

  1. PARADOX OF DOUBLE DISCRIMINATION:

“To be a ‘real’ man in our culture is to realize that, he has to be strong, powerful, independent; he should be tough in overcoming adversity and never flinch or show cowardness.”[15] Masculinity is a fluid, contingent and contested term, which are reinforced or at times denied or challenged, in the social system, in which relations of authority, work and domestic life are organized along hierarchical gender lines.[16] In the light of these socital construct, the idea of abuse of a male child by a female abuser or a homosexual encounter, is a matter of shame for both the victim and his family. Also, patriarchy is oppressing male children and acts as a barrier to seek psychiatric help. Further, for transgenders, the plight is even more agonizing. First accounts of sodomy on young male victims were recorded in the Common Law of England texts. The renowned scholar Blackstone, regarded sodomy as “abominable crime”.

Boys are sexually abused and it has nothing to do with how masculine they are, or his sexual orientation. According to WHO, 1 in every 7 boys in the world is sexually abused.[17] The first ever National Study on Child Abuse was conducted by the Ministry of Woman and Child Development in the year 2007.[18] The report concluded that 53.22% children faced one or more forms of sexual abuse; among them, 52.94%, were young boys. The report also held that boys were equally at risk as girls.

Another study on child abuse, conducted by Elaan, an NGO in Kolkata, reported that 4 out of 10 boys face sexual harassment in schools. More boys than girls face various forms of sexual assault and innuendos ranging from inappropriate touch, exposure to pornography, sexually colored remarks etc., where the abuser may be from the peer group or a senior student. A similar study by Tulir- CPHCSA reported 48% of boys among 2211 school going children from all socio-economic groups to be victims of CSA.

Furthermore, transgender people’s experience with sexual violence indicate shockingly high levels of

sexual abuse and assault. Reports estimate that transgenders are victims of sexual abuse at some point of their lives.[19] Transgenders are more often assaulted or abused by police than others.[20]

Also, acts of hate violence, such as harassment, stalking, vandalism, and physical and sexual assault, are often supported by more socially sanctioned expressions of trans-phobia, bi-phobia, and homophobia and are intended to send a message to LGBTQ communities.

Ms. Alokananda Roy, who is a social activist and has been working for children in the correctional homes, in her inaugural speech[21] questioned the audience as why no one talks about the plight of young boys who are sexually abused. The answer to this ascribes to ignorance, and patriarchal construct of masculinity. Ironically, it is considered that boys cannot be assaulted and at times, victims become the hero, if he faces a sexual encounter with someone of the opposite sex.

Also, there is a considerable shift in the flesh trade market. Once known to be dealing with females only, now has a demand for children of both sexes. The demand for male sex workers is gradually rising as sexual attitudes are fast changing. Recently, in metro cities, boys between 15 to 25 years are employed in sex services, where they cater to sexual needs and fantasies of rich female clients. Further, certain Indian traditions also play a role in the perpetuation of male sex trade. Boys in the age group of 15 to 20 years with feminine demeanour migrate to Bihar and Uttar Pradesh to perform what is called “Launda naach”. “Laundas” meaning young boys are made to dance and entertain in marriage or other social ceremonies. These dancers are very vulnerable to physical and sexual assault. A group of villagers would take a dancer to the fields and gang rape him. This is a very common trend and resistance only leads to greater torture.

To draw the attention to reality, the authors came across a case, that perfectly sums up the mentality of the family of the victim, and where exactly we need a change. A 10-year old boy, was brought to a psychiatric clinic with complains of school refusal, academic decline, sleep disturbances, social anxiety etc. According to his parents, they discovered a video in his mobile phone, where he was caught in a forced sexual encounter with two senior boys of his school. According to the victim, the video was shot by a classmate of the perpetrators, and they used the video to blackmail him to make him steal money from his home and supply to the abusers. The father was more concerned about the fact that his son stole money and assaulted the child, instead of lodging a complaint. When he was asked to lodge a complaint, he clearly said, “He is a boy; he neither lost a hymen or nor will get pregnant.”

  • CLINICAL AND PSYCOLOGICAL PARADIGMS:

Justice V.R. Krishna Iyer held in the case of Rafiq v. State of Uttar Pradesh[22] that “a murder kills the body but the rapist kills the soul”. It is an established fact that millions of children are victims of sexual abuse within their homes and outside. The perpetrator can be anyone who exploits the child’s vulnerability to satisfy their sexual lust. It involves mental, physical and emotional abuse of the child through overt and covert sexual acts, gestures and disposition, when informed consent or resistance by the victim to such acts is not possible. The impact of sex related offences on children can be devastating and long lasting. Such abuse can leave their mind and soul completely mutilated. In our country, issue is simmering for decades to acknowledge the traumatic issues that a child faces which are long lasting and have a deep rooted effect on the society at large. The various clinical and psychological effects can be explained as follows.

High rates of depression, anxiety, substance abuse, dissociative disorders, interpersonal dysfunction, sexual problems, and suicidal tendency follows the victim throughout their lives. The severity of clinical and psychological problems faced by adult survivors who have been a victim of sexual abuse in childhood has been found to vary based on the age of the victim, relation between the victim and the perpetrator, nature of the crime, etc. It is reported that approximately 20% of the victims will suffer significant long term effects.[23]

Further, it is seen that the victims start to evaluate self-worth. After years of negative self-thoughts, survivors have feelings of worthlessness, have disturbed eating and sleeping patterns. They often experience guilt, shame and self-blame. At times, the children who have been wronged may indulge in doing the same with others. It is often seen that at a tender age, victims grow an affinity towards vengeful activities to receive sadistic pleasures. These result in their lack of interest in academic and other positive activities.

Furthermore, rather than empathizing with the victim, our society involves in victim-shaming. Children who are already abused are further abused by the society. Parents, teachers, family members often outcast the child instead of giving positive support. This further, results in development of various complex psychological issues.

  1. SUGGESTIONS:

Preventing and responding to violence, exploitation and abuse is essential to ensuring children’s rights to survival, development and well-being. In this regard, the family and the State play vital roles in their respective capacity. While protection is the job of the parent, prosecution is the job of the State. Also, this protective environment rests in 2 strategic pillars: strengthening of national systems and social change, which translate into the following 8 key strategies:

  1. Governmental commitment to fulfilling protection rights, which includes, introduction and execution of social welfare policies, public acknowledgement and ratification of international instruments.
  2. Legislation and enforcement: The recently enacted Protection of Children from Sexual Offences Act, 2012 is a ‘gender neutral’, ‘specific’ legislation for protection of child from sexual offences. The Act defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from offences of sexual assault, sexual harassment and pornography. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. Punishment ranges from simple to rigorous imprisonment of various periods. Strict and proper implementation of the POCSO Act is of utmost importance. The Act also makes it mandatory to report any instance of child abuse. Under Section 21, the Act levies a punishment of six months and fine, in case of failure to report an offence.[24] The Indian Penal Code was to a large extent insufficient in dealing with the complex issues of child sexual abuse and hence, enactment of a specific legislation was the need of the hour.
  3. Attitudes, traditions, customs, behaviour and practices: The need of the hour is a change in socital structure. Society should condemn injurious practices harming the growth and development of a child.
  4. Open discussion, including the engagement of media and civil society: Its a known fact that majority of CSA cases goes un-reported. Open discussion of the same and involvement of media would bring more awareness. The victim needs all the support of his family and society.
  5. Children’s like skill development: Children must be prepared to raise their voice, and if necessary to raise their hands in case of any such encounter. The duty of giving proper self-defence training lies upon the parents. Responsibility also rests upon schools to impart sex-education, teach children the differences between a “good touch” and “bad touch”, to develop self-defence skills etc.
  6. Capacity of those in contact with the child: The kin and teachers of the victim play a very crucial role in his treatment stage.
  7. Basic and targeted services: The victim has a right to certain services, which includes the basic social services, health and education to which children have the right, without discrimination, and also specific services that help to prevent violence and exploitation, and provide care, support and reintegration assistance in situations of violence, abuse and separation.
  8. Monitoring and oversight: Initial medical assessment may not reveal the deep psychological trauma of the victim. Hence, it is very important that further assessments be conducted to ensure any psychological issues that may arise are addressed and dealt appropriately. These may be provided by professionals, schools or within community groups.
  1. CONCLUSION:

The reported cases of child sexual abuse indicates just the tip of the iceberg. The Protection of Children from Sexual Offences Act, 2012, is the response to the increasing instances of grave sexual offences against children and low rates of conviction for the same. The problem in India is acute owing to its conservative social environment. The lack of a legal mechanism exclusively directed at curbing such offences is the prime reason behind the breeding of sexual predators. The IPC has never addressed crimes perpetrated against children. Now, drafting a specific legislation targeting child sexual abuse is only half the battle won. The legal fraternity, State machinery and society needs to to work hand in hand to prevent this social curse.


This Article is written by Dhrubajyoti Bose & Saheli Chakraborty, Student, Calcutta University
The manuscript was submitted for the National Seminar on Protection of
Children from Sexual Offences Organised by Bengal Law College in association with RostrumLegal on February 17th & 18th, 2018.


References

[1] Thomas Paine, The American Crisis (1776-1783)

[2] Laxmi Kant Pandey v. Union of India, A.I.R. 1984 S.C. 469.

[3] Justice V.R. Krishna Iyer, The Children’s Code, 10-11 (Universal Law Publishing Co. Pvt. Ltd., 2012)

[4] Ministry of Woman and Child Development, Government of India, Study on Child Abuse: India 2007, available at: http://unicef.in/PressReleases/239/Child-Abuse-in-India-A-study-by-the-Ministry-of-Women-and-Child-Development-Government-of-India (last seen on 02/02/2018).

[5] T. Pagadala, Bodies for Sale, by men too, India together (12/03/2014), available at: http://indiatogether.org/realities-of-male-sex-workers-society (last seen on: 04/02/2018).

[6] Bajpai 2003.

[7] UNICEF 2011.

[8] Fact sheet: Child Sexual Abuse, UNICEF, available at: https://www.unicef.org/lac/Break_the_Silence_Initiative-Fact_sheet(1).pdf (last seen on 04/02/2018)

[9] Dr. Shubhda Maitra, Understanding Child Sexual Abuse, CLI, available at: http://www.childlineindia.org.in/Understanding-Child-Sexual-Abuse.htm (last seen on 04/02/2018)

[10] Supra 8.

[11] India sexual abuse: ‘Four child victims every hour’  BBC (01/12/2017), available at: http://www.bbc.com/news/world-asia-india-42193533 (last seen on 04/02/2018)

[12] P. Reddy, G. Chandra & T.S. Rao, Silence of male child sexual abuse in India: Qualitative analysis of barriers for seeking psychiatric help in a multidisciplinary unit in a general hospital, 59(2) NCBI ( 2017), available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5547862/ (last seen on: 04/02/2018).

[13] D. Tiwary, Children victims in 60 percent cases under Section 377, The Indian Express (21/10/2016) available at: http://indianexpress.com/article/india/india-news-india/rape-section-377-indian-penal-code-ncrb-date-pocso-children-rape-3033639/ (last seen on 04/02/2018)

[14] J. Anand, Delhi stating at highest sodomy cases in four years, Hindustan Times (17/12/2015) available at: https://www.hindustantimes.com/delhi-news/delhi-staring-at-highest-sodomy-cases-in-four-years/story-0HAA81UkXeti6tA1vbcwBK.html (last seen on 04/02/02018)

[15] S. Box, Power, Crime and Mystification, 145 (Tavistock Publications Ltd., 1st ed., 1983)

[16] L. Segal, Slow Motion: Challenging Masculinities, Challenging Men, 288 (Virgo, 1990)

[17] V. Pinki, Bitter Chocolate: Child Sexual Abuse in India, (Penguin Books, New Delhi, 2000)

[18] Supra 4.

[19] G. Kenagy, The Health and Social Service Needs of Transgender People, 8(2/3) International Journal of Transgenderism, 49 (2005).

[20] Ibid.

[21] On 12th January, 2018, at an event, “Walk for Education” organized by Lions Club of Kolkata Rabindra Sarovar.

[22] Rafiq v. State of Uttar pradesh, 1981 AIR 559, 1981 SCR (1) 402.

[23] Department for Human Support Services, Child Sexual Abuse: A Mental Health Issue?, available at: http://chfs.ky.gov/NR/rdonlyres/0D6B2450-8D63-4853-8BB3-AE33185F9356/0/ChildSexualAbuseAMentalHealthIssue.htm (last seen on 05/02/2018).

[24] Mrs. Madhu v. State of Haryana, 1998(4) RCR 854

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