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Sexual Abuse of Children and The Constitution of India

Introduction

Child Sexual Abuse is a everyday reality for about half of India’s children. ‘Children are the greatest gift of humanity. The sexual abuse of children is one of the most heinous crimes’[1]. They are tiny apostles of peace[2]. Children are the ultimate goal for development and the most important elements in society who can lead development[3]. But a child is susceptible to harms, taking advantage of marks of childhood, innocence and helplessness. Many a times they are tiny or are children between childhood and teenage. According to UNICEF report, one million children are drawn into commercial sexual exploitation every year in the world. 20% of world’s children live in India.  Most of these children are girls below 15 years of age. On one side, the insatiable lust doesn’t stop perpetrators from dragging boys too. The WHO estimates 150 million girls and 73 million boys to have experienced forced sexual intercourse or other forms of sexual violence. Child abusers are who belong to the lowest strata of the society, is the old philosophy. The new philosophy is that you find abusers next to you at home, irrespective of higher class, middle class or lower class, irrespective of the abuser being a man or women, irrespective of the victim being a new born[4] or a child, girl or boy. The reasons why child abuses and abusers remain behind the curtain of law are in plethora. Either the victim is small enough to understand what had happened, or the abuser is close to the victim, the child takes it to be a way to shower love, or where the victim reports it to the parents, the parents ignores it owing to the child’s age or doesn’t believe the child, or the parents are reluctant to take the case to the police, the name of the family or the future of the child  be affected[5], or the parents are threatened by the perpetrator or he is one among the family or the parent itself[6].

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CSA

According to World Health Organisation, child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person.

Child Sexual Abuse is not exhaustive[7]. It takes in various forms of abuses-sexual assault, including rape and sodomy, fondling or touching a child, exhibitionism-forcing a child to exhibit his/her private body parts, photographing a child in nude, forcible kissing, exhibitionism-exhibiting before a child, exposing a child to pornographic materials[8].

Constitution of India

The Constitution of India guarantees several rights to children and enables the State to make provisions to ensure that the tender age of children is not abused. It is a malaise on a society that prides itself on the rule of law, democracy and the various freedoms enshrined in the Constitution. Article 15 of the Constitution of India, prohibits discrimination on the ground of religion, race, caste, sex and place of birth.  But, clause (3) of Article 15 provides that nothing in this Article shall prevent the State from making any special provision for women and children. Prohibition contained in the Article shall not prevent the State from making any special provision for women and children. The provision is a social justice measure and specially enacted to protect the women and children and the brooding presence of Constitutional empathy for the weaker section like the women and children must inform interpretation if it has to have social relevance[9].  The fundamental right a child should get is the right to live under Article 21, including right to live a healthy life free from exploitation and abuses.

Article 39(e) creates a duty to the State to ensure health and strength of children. The Constitution requires the State to provide for protection of tender age of children and their protection from abuses. Engagement of children in vocations, generally forced, which are unsuitable to their age or strength are areas where the State has the duty to take care of. So is Article 39(f) which mandates the State to ensure the children gets opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity. It includes the State to ensure facilities for the development of children and to protect the childhood and youth against exploitation as well as moral and material abandonment.

The United Nations Convention On The Rights Of The Child, 1989

Every child under 18 has these rights guaranteed under this Convention, without any discrimination. Children have the right to be protected from being hurt and mistreated, in body and mind. Article 34 gives the child the right to be free from sexual abuse.  The innocence of the child is what the abusers take advantage of and CRC protects a child from such exploitation. The State parties are to undertake measures to prevent inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practice and the exploitative use of children in pornographic performances and materials.

Cases and News Reports   

In Mathura’s case[10], a girl between 14 and 16 years was raped by two policemen. The Session’s Court held Mathura to be a shocking liar whose testimony is riddled with falsehood and improbabilities and that of her free-will had surrendered her body to a police constable. The Medical Report showed old injuries on the hymen and no semen stains were traced. The High Court convicted while the Supreme Court acquitted the accused, on the ground that sexual intercourse is not proved to amount rape.

In the contrary to the judgment in Mathura case, the Mumbai High Court held that seminal emission is not necessary to establish rape. What is necessary to establish is that there is penetration.

A 2007 incident. 16 year old girl in New Delhi had repeatedly complained that the her mathematics teacher was touching and fondling her private parts. When the girl’s parents complained the Principal called them regressive and blamed them for damaging the reputation of the school. The girl now stays at home to help cook and clean. But, in an almost similar incident in Orissa, the teacher was booked and the term of imprisonment was enhanced as the perpetrator of the offence had taken advantage of the teacher-student relationship he shared with the victim[11].

On 19th of November, 2008 the bulletins shook the news rooms with the news of orphanages in Mahabalipuram turning to hotbeds of child sexual abuse, especially private orphanages. Tourist guides offer orphanages as part of itinerary for foreign tourists. The running of orphanages and children homes are matters of public interest and if in the working an evil is suspected to exist, it must be exposed, so that it may be rooted out.

Three were arrested on charges of incest, being the latest in a series of domestic brutality meted out to hapless wards by those meant to protect them. A 42 year-old man was arrested for abusing his 12 year-old handicapped daughter at gun point.  In another case, a 35 year-old was arrested for sexually exploiting his 10 year-old daughter. The police said the accused had been sexually exploiting the girl for the past 2 years.

A 4 year old girl was raped in Madhya Pradesh by a youth in a jungle near Veeranpur village. The accused took the girl in to a nearby jungle and raped her. The girl after her return informed about the incident to her mother who lodged a complaint with the police.

An 18 year old was gang raped in Patiala, by three youths on Diwali night and she committed suicide.

A minor girl was allegedly gang-raped by four youth on visit to her sister’s house. The victim somehow reached her house and narrated the incident to her parents who rushed to the nearby paddy fields in search of the youth. The perpetrators tied the hands of girl and put her scarf in her mouth and lifted her to the paddy fields where she was raped by all the four. The villagers caught the four accused who were about to leave the village, knowing the girl had informed her parents of this incident.

Amidst the uproar over the Delhi rape incident, a minor girl was raped, filmed and later MMS clip was uploaded on the internet in a village in Chhattisgarh. The Police charged seven youth under the provisions of Indian Penal Code for rape and Information Technology Act, 2001 for circulating the MMS clip on mobile and also uploading it on the internet.

In Anchorage Case[12], a shelter home set up in Colaba, Mumbai by two Britons Allan Waters and Duncan Grant who had sexually abused children for years. A victim whose testimony, which was crucial for this case was 14-15 year old and revealed that he was made to perform oral sex on the two of them. Another victim also gave a similar testimony. A police complaint was filed in 2001. The Bombay High Court passed directions to protect the boys at Anchorage shelter. The investigation also brought in proof of children in the shelter home being taken to Goa by foreigners who visit them for sexual activities. The Mumbai Sessions Court sentenced the accused to six years in prison on the charge of sodomy and sexually abusing five minor boys. The accused challenged the trial Court verdict in an appeal in the High Court, which acquitted the accused[13]. But, the apex Court rejected the arguments of the accused and sentenced them to finish their time in jail.

The Protection of Children from Sexual Offences Act, 2012

Even though India is a signatory to a host of International Covenants and Instruments focusing on Child Protection, the existing legal mechanisms have not been able to provide the necessary Child Protection systems which could prevent child abuse. The new legislation comprehensively deals with all manner of sexual offences, the reporting mechanism and subsequent penal consequences.

A child is any person below 18 years of age. The Act defines penetrative sexual assault as where the perpetrator penetrates his penis to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person or if he inserts any other foreign object or any part of the body or manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or applies mouth to the penis, vagina, anus, urethra of the child or, makes the child to do so to such person or any other person. Another classification is aggravated penetrative sexual assault, where the perpetrator is a police officer[14], or a member of the armed forces or security forces[15]or where he is a public servant, or a manager or on the staff of any home under the control of the Government which takes custody of child, or in the staff of any hospital or whoever is on the staff of any educational institution. Aggravated sexual assault also takes into it gang penetrative sexual assault, penetrative sexual assault on a child using deadly weapon, fire heated substance or corrosive substance, causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child or that which incapacitates the child or where the child becomes mentally ill or any impairment of any kind so as to perform regular tasks, temporarily or permanently[16]. Classification again is made for sexual assault and aggravated sexual assault in lines of penetrative sexual assault and aggravated sexual assault.

Sexual harassment is given a wider connotation. Thanks to legislators as this is often the way child is abused. A person who utters a word or makes any sound or gesture or exhibits any part of his body or any object, makes a child exhibit his body, to be seen by that person or any other person, shows any object to a child in the form of any media, constantly follows, reaches or contacts a child through any means, threatens to use in any form of media to exhibit any part of the child or the involvement of a child in a sexual act, or entices a child for pornographic purposes or gives gratification shall be punished for sexual harassment of a child. Apart from a sub section under sexual harassment for use of a child for pornographic purposes, the legislation hosts a distinct provision exclusively for use of child for pornographic purposes[17]. It provides that whoever uses a child in any form of media, including programme or advertisement telecast by television channels or internet or any other electronic from or printed form, whether or not such programme or advertisement is intended for personal use or for distribution, for the purpose of sexual gratification, shall be guilty of the offence of using a child for pornographic purposes.

The Act punishes abetment of and attempt to commit an offence under this Act. Abetment under the Act takes three forms. First, instigating any other to an offence, second, engaging in conspiracy with one or more other persons and thirdly, intentionally aiding others to commit the offence[18].

Procedure in reporting offence

The Act mandates any person, including a child, who has knowledge of an offence been committed to inform the Special Juvenile Police Unit or the local police[19]. Any such information received is required to be recorded in writing with an entry number. Such writing is required to be read over to the informant and entered in a book to be kept by the Police Unit. The legislative mandate requiring media, studio, hotel, lodge, club or photographic facilities to report to the Special Juvenile Police Unit or to the local police, any information or materials they come across which is sexually exploitative of the child[20] is note worthy.

The legislation takes extra care to protect victims from the over activism of media under s.23 of the Act. Media are strictly prohibited from reporting without authentic information on any news involving a child, if that would tarnish reputation or infringes privacy of the child. Media is not disclose the identity of the child unless with the permission from the Special Court competent to try such cases. The duty to ensure non disclosure of the child’s identity vests with police.   Statements from a child shall be recorded at his residence by police officers not being in uniform ensuring the child doesn’t come in contact with any of the accused. The Act holds provision for a Magistrate or Police to record such statement by audio-video electronic means. Additionally, the statement shall be recorded by police or Magistrate as spoken by the child in the presence of his parents or by any other in whom such child ahs trust and confidence. Special care has to be taken in recording statements of child with disability. The child shall not be detained in the police station in the night for any reasons. Child victim of sexual abuse shall be medically examined in the presence of a parent or any person in whom the child has trust and confidence, by a women doctor, if victim is a girl and such examination shall be conducted as under s. 164A of CrPC, 1973.

Act imposes punishment on persons or organizations for failure to report a case. This includes NGO’s. The provision disregards the appreciable work by NGOs and social workers those help families settle issue by different methods by not leaving room for celebrating these cases in public.

Conclusion

Child abuse is shrouded in secrecy and there is a conspiracy of silence around the entire subject. In fact there is a well entrenched belief that there is no child abuse in India and certainly there is not sexual abuse in the country. Further, certain kinds of traditional practices that are accepted across the country, knowingly or unknowingly amount to child abuse. Existing socio-economic conditions also render some children vulnerable and more at risk to abuse, exploitation and neglect”[21]. The symptoms of sexual abuse of children are many[22]. The insatiable lust of human beings has to be brought under control at any cost. Child abuse remains a shadow to the future development of a child. Children who require extra care and protection are those who are orphans, those in the streets, jails, children of prostitutes and the child yet to be born. It is a point of pain that the older criminal statues had not recognized the protection of child and a child had been neglected and so his rights. Thought, is calls for celebration in having a separate legislation for protection of children from sexual abuses, the legislation is yet to recognize showing pornographic pictures to children as a form of sexual harassment. All stands good in the setting up Special Courts and child friendly trials but, stands yet to prove. The Act ought to have been made sufficient enough to try a child offender.  At the same time, in case of child offender, the orders passed by the Special Courts shall not be invalidated if the age determined of such offender was incorrect. The Act holds separate provision for monitoring the implementation and vests the duty with the National and State Commissions for Protection of Child Rights. The Act falls short to deal with sexual abuse by kidnapping and abducting for which the IPC is still relied upon. Amendments are inevitable to this legislation too.

About the Author

SOUMYA PRAKASH
B.B.A.,LL.B. (Hons.),
School of Legal Studies,
Cochin University Of Science And Technology,
pm.soumyaprakash@gmail.com

REFERENCES:

[1] Childline India Foundation & Anr v. Allan John Waters & Anr, 2011 CriLJ 2305

[2] Shriniwas Gupta, ‘Sexual Violence on Children: A Sociolegal Assessment’, Central India Law Quarterly, vol.IX:IV,  pg.428,

[3] M. Veerasamy v.State of Tamil Nadu, 2012 (3) CTC 641, Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469

[4] Siddik Singh v. State of Maharashtra, 1993 CrLJ 2919 (Bom), the accused a Army Officer kidnapped and raped a 4 month child and she died, T.K.Gopal v. State of Karnataka, AIR 2000 SC 1669

[5] State of Punjab v. Gurmit Singh, AIR 1996 1393

[6] ‘Crimes in which women are victims need to be severely dealt with and in extreme cases such as this when the accused, who is the father of the victim girl, has thought it fit to ‘deflower’ his own daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice.’, Gorakh Daji Ghadge v. The State of Maharashtra, 1980 CRLJ 1380

[7] State of Rajasthan v. Om Prakash, AIR 2002 SC 2235

[8] Study on Child Abuse: India 2007, Ministry of Women and Child Development, Government of India, 2007

[9] Ramesh Chander v. Veena Kausal, AIR 1978 SC 1807

[10] Tukaram & Another v. The State of Maharashtra, 1979 2 SCC 143

[11] Ghanshyam Mishra v. The State, AIR 1957 Orissa 78

[12] Childline India Foundation and Anr. V. Allan John Water and Ors., 2011 CriLJ 2305

[13] In their judgment, MANU/MH/0636/2008, the Hon’ble Judges of the High Court of Maharashtra stated:

The testimony of the two boys, Sunil and Kranti, which was the basis for the Trial Court’s judgment cannot be considered reliable as their testimonies recorded by Police subsequent to the FIR was not consistent with what they recorded with Meher Pestonjee, freelance journalist and Maharukh Adenwala prior to the FIR being lodged;

The testimony of Mahrukh Adenwala was construed as “hearsay” and hence not relevant;

The acts that the boys testimony reported were ruled to not indicate a definitive crime under section 377;

The States appeal for enhancement was dismissed as the testimony of the victims was not reliable.

 

[14] Section 5(a), Whoever, being a police officer, commits penetrative sexual assault on a child —

(i) within the limits of the police station or premises at which he is appointed; or

(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as, a police office

[15] Section 5(b), Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child—

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the forces or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where the said person is known or identified as a member of the security or armed forces

[16] Section 5(g)-(j),  The Protection Of Children From Sexual Offences Act, 2012. The section further goes into making a female child pregnant, inflicting HIV, taking advantage of the child’s mental or physical disability and commits the offence, committing penetrative sexual assault repeatedly, committing the offence on a child below 12 years, any relative being the perpetrator, either by blood or adoption, attempts to murder the child after committing the offence. Section 6 confirms the punishment, which shall be not less than 10 years, which may extend to imprisonment for life and also fine.

[17] Section 13, POCSO Act, 2012

[18] Section 16, POCSO Act, 2012

[19] Section 19, POCSO Act, 2012

[20] Section 20, POCSO Act, 2012

[21] Study on Child Abuse, Ministry of Women & Child Development, Government of India, 2007

[22] Pinki Virani, ‘Bitter Chocolate’, 2000 (Penguine Books)  The immediate signs of sexual abuse can be:

Bed-wetting, continuous loose motion, hysterical reactions, temper or aggressive behavior, depression, anxiety, withdrawal, deep sense of isolation, avoiding certain adults, not concentrating in school, attempt to physically hurt self, constant rubbing of body parts against objects, use of sexual words, focused on its own genitals, constant throat and urinary infections, irritation in the genital areas, masturbation and the signs can be many.

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July 19, 2016

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