One of the biggest social stigmas attached to a society is that of child abuse. A child can be abused physically, sexually or mentally. It can be in the form of injury, neglect or negligent treatment, blaming, forced sexual stimulation and activity, incest exploitation and sexual abuse. Child abuse can take place in homes, schools, orphanages, residential care facilities, on the streets, in the workplace, in prisons and in places of detention. Violence in any form has a very deep impact on the overall development of the child. Child abuse results in actual or potential harm to the child's health, survival, development and dignity.
According to the National Crime Record Bureau, 109 children in India face some form of child sexual abuse every day. The same records show a sharp rise in crimes against children on a year on year basis. Unlike most other crimes, heinous crimes against children are often under reported. This is majorly because even if the child confides in someone, the facts are often covered under the fear of family reputation and social stigma. Child abuse is a violation of the basic human rights of a child.
The World Health Organization (WHO) states Child Sexual Abuse (CSA) as the involvement of a child in sexual activity that they do not fully comprehend, are unable to give informed consent to, or for which the children are not prepared for developmentally, or that violates the law of the land. The definition of CSA includes sexual activities like fondling, asking a child to touch or be touched sexually, intercourse, involving a child in prostitution or pornography, or child luring on cyberspace
Child Sexual Abuse in India
CSA has largely been ignored in public discourse and not often taken seriously by the criminal justice system. Nearly 19% of the world's children find home in India. As a signatory to the United Nations Convention on the Rights of the Child in 1992, the Indian Government promised to protect all children from all forms of sexual exploitation and sexual abuse. The Convention puts the responsibility on state machinery to prevent the coercion or inducement of a child to engage in sexual activity of the unlawful kind.
While children belonging to all genders are highly susceptible to CSA, it is often the girls who are more vulnerable to sexual abuse. Sexual exploitation and abuse of children is strongly correlated to the rampant poverty in India. Majority of the CSA cases in India are often perpetrated by someone known to the child or in a position of trust and responsibility. This means most children do not report the abuse to anyone due to social stigma and family honour.
Sexually abused children in India are often let down by repeated failure of the criminal justice system to redress grievances related to CSA and the accompanying social ostracism which comes along after the abuse. The instances of CSA cases not being reported is not unique to India but common to most other Asian countries where individual experiences are ignored so as to protect the family name and honor from shame and stigma tagged with sexual abuse.
Legal Provisions against Child Sexual Abuse in India
- A movement headed by the Ministry of Women and Child Development, led to the enactment of a new legislation called Protection of Children against Sexual Offences Act, 2012 (POCSO Act) to tackle the menace of Child Sexual Abuse cases in India.
- The Act was enacted with the aim of criminalization of a range of criminal acts such as rape of a child, sexual assault, sexual harassment, and pornography involving a minor (less than 18 years of age). The act directs setting up of Special Courts to ensure speedy trials in cases of Child Sexual Abuse. Without any question, the passing of POCSO was a major step forward in securing rights of children and ensuring they have a safe childhood. The aim and spirit of the law is to protect children from sexual abuse.
- The POCSO Act, 2012 calls for stringent punishments, as per the gravity of the offence ranging from simple to rigorous imprisonment of varying kinds and periods. There are also provisions for fine, which is decided by the Court based on the facts of each case. An offence is considered to be an aggravated offence when committed by a person in a position of trust and authority of a minor or such members of society such as security officers, police officers, public servants, etc.
- The act does not use the term rape for sexual offences and also does not restrict sex to just penetration. Instead, the act broadens the offence termed as penetrative sexual assault to include oral sex, as well as, insertion of object of any kind into anus, mouth or vagina, in addition to penile sex. Before the POCSO Act, numerous accused in such cases were let go scot free or charged under less severe sections under the IPC such as outraging the modesty of a woman because acts like digital penetration were not considered an offence under the IPC. The addition of penetrative assault under the POCSO, 2012 now has increased the layer of protection for children in India and making convictions for various kinds of penetrations possible.
- In addition, The POCSO Act, 2012 criminalises a range of acts as being sexual assaults, all of which fall short of the act of penetration. Further, the offences of aggravated penetrative and non-penetrative sexual assault has been made much more stringent with stronger penalties, especially when committed by a specified range of perpetrators, including family and known people and people who are on public duties , such as policemen and government officers. Some examples of offences under it include rape, gang rape, grievous bodily harm, threaten with firearms or substances of corrosive nature, assault of a child under 12 years of age, or one who is physically or mentally disabled, impregnating a minor, or assaulting a pregnant child knowingly, or infecting the child with HIV. The definition of assault under the POCSO Act, thus, is a comprehensive nature and range of possible scenarios is covered under it. The need for these provisions is to ensure various crimes against children can be covered under it as often children are some of the most vulnerable sections of the population in India.
- The POCSO Act, 2012 is a breath of fresh air in many aspects, as not only does it have provisions for after a crime is committed but also includes under it , definition of sexual harassment, repeated or constantly stalking, watching or contacting a child either directly, through electronic media or through other means thus, including incidents of child harassment via sexting or cyber space.
- The introduction of Special Court for crimes against children, as provided under the Act, plays an important role in how the law and the evidence may be administered and interpreted. The POCSO Act allows for Special Courts where trial proceedings may be conducted in a more sensitive manner with the minor who has been the victim. It allows for the testimony to be given either privately via video-link, or behind screens, or in front of a camera which is intended not only to ensure no possible repeat of the trauma but also to protect the identity of the child. It introduces modern child friendly procedures for reporting, recording of evidence, investigation and trial of offences in lieu with international guidelines.
- One of the principles of the POCSO Act is to recognize that even if there is an intent to commit an offence of abuse and for whatever reason it was unsuccessful, the perpetrator needs to be penalized. The mere attempt to commit an offence has been made liable for punishment under the POCSO act with half of the prescribed punishment for the commission of the offence. It also has provisions for punishment for abetment of the offence, which is the same as for the commission of the offence. This includes trafficking of children for prostitution.
- The POCSO Act also has strong provisions to prevent misuse of the law and punishment has been provided for making false complaints or submitting incorrect information with malicious intent to harm someone’s reputation.
- Under the POCSO Act, 2012 the media has been barred from disclosing the identity of children who have been sexually abused without the permission of the Special Court. The punishment for breaching this provision is imprisonment of 6 months to 1 year.
- To ensure a speedy trial , the POCSO Act states that the evidence of the child is to be recorded within a period of 30 days after the commission of the crime. Also, the Special Court is required to complete the trial within a period of 1 year, if possible.
- Other provisions which include relief and rehabilitation of the child as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police. These units of police have to make instant arrangements to give the child protection and admit him/her to a hospital or shelter home within 24 hours of the crime being committed.
- The SJPU or the police are instructed to report the matter to the Child Welfare Committee within 24 hours of recording the complaint so that they can make necessary arrangements for the long term rehabilitation of the child in question.
- The POCSO Act also instructs upon the Central and State Governments a duty to spread awareness through advertisements on popular media forums including the television and the print media to make the general public, children as well as their parents aware of the need to keep children safe and to make them understand the provisions of the POCSO Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) are the designated authorities who monitor the implementation of the POCSO Act, 2012
- The POCSO Act was made even stricter by the Union Cabinet in 2019 by including a proposed amendment which states that for the protection of children from sexual offences during natural calamities where children are injected, any chemical substance to attain sexual maturity for the purpose of sexual assault. The key introduction is approval to give death penalty to a rapist of a child for committing aggravated sexual assault of penetrative nature.
Pitfalls of the POCSO Act, 2012
Even though the POCSO Act has been framed keeping in mind most major issues concerning abuse against children, it still has some pitfalls holding it back and creating implementation problems in the country. The pace of enforcement is very slow and whilst cases registered under POCSO Act are constantly rising, the conviction rate stands just at 4%, with acquittal rates at 6 % and a huge pendency of almost 90 %, as per the statistics of the National Crime Records Bureau.
- As per the POCSO Act, State governments. in consultation with the Chief Justice of the High Court must designate one Sessions Court as a Special Court to try offences related to POCSO and to ensure speedy trial. Also, the POCSO Act further states that if a Sessions Court had been already notified as a POCSO Court under the Commissions for Protection of Child Rights or if any other Special Court has been given the designation for similar purposes as per any other law, it would also be considered as a Special Court under the POCSO Act. This means that the stipulation that every district should have their own court for CSA cases, the ground reality is very different.
- One major challenge for the effective implementation of the POCSO Act is the failure to set up Speed Trial Courts to deal with Child Sexual Abuse in all the districts of the country. Creation of these special courts is an essential requirement of the POCSO Act, a huge delay in the disposal and pendency of the cases registered under the act happens because this requirement has not yet been fulfilled.
- Lack of expertise means that the judges appointed to handle Child Abuse matters are not experts or lack the sensitivity training in these cases as they are not provided additional training by the government. The consequence of this is that they often see such cases as an additional burden or are ill equipped to deal with it which leads to cases of CSA not being dealt effectively and efficiently as required by the act.
- For children who have been sexually abused, the aftermath of a trial is perhaps of more concern than the act of getting justice through a potential conviction. This is especially true when the perpetrator of the abuse is a relative or acquaintance known to the victim, as is the case with 95% of abused children. If the abuser turns out to be a family member, reporting the case would mean entering the home of the child, breaking his or her family and probably putting him or her in a shelter home, which can often be traumatic for the child even if the abuser is jailed. These concerns also often stop adult caregivers from reporting abuse that a child may have disclosed to them.
- Further, the police and other officials are not sensitized enough, children are asked about their ordeal multiple times which causes emotional trauma, and outside of urban spaces, there is a dearth of qualified counselors to provide emotional support to the child. At the district level, the child’s statement is often taken inside the police station, or the police go to interview the child in uniform, which will not only be intimidating for a vulnerable child, but it can also expose the child’s identity in a neighborhood.
Child Sexual Abuse is a bane of Indian society and hence the Act was introduced in 2012. However, no law can be implemented effectively and efficiently, without the dedicated and coordinated efforts of the investigating and implementing agencies. A multi lateral approach is required in this regard, and the onus lies with the state governments, police department, judicial system, and medical fraternity to implement the act with urgency and to approach these cases with urgency, empathy, and compassion. Speedy trials are possible only if the judges, their staff, prosecution, police, and defence coordinate with each other, failing which concept of special courts will be defeated. Further, doctors need to be trained to understand the intricacies and help in proper scientific collection of various evidences while examining a child victim of sexual abuse. In recent years, there is an increase in the number of cases being reported and the same is due to the awareness which was able to be created through various awareness programs and efforts of NGOs. To improve the rate of conviction, it is important to boost up both investigation and trial for speedy and efficient delivery of justice. POCSO