“Too often, we see that legislation is on the books but that many children remain on the margins of society -not registered at birth, not in school, too poor to see a doctor and, for that, all the more vulnerable to violence and abuse.” (Rima Salah, Deputy Executive Director, UNICEF)
- INTRODUCTION
What is sex? sex is an vastly considered by various religions and mythologies as an act given by God for the purpose of populating humanity. It can also be widely considered sometimes as a prime biological reason for our existence. However it doesn’t seem to be the same every time. If we look at a few basic statistics, it can give us very sad outlook and question our senses. Nearly, 70% of all reported sexual assaults occur to children aged 17 and below. Youths have higher rates of sexual assault victimisation than adults do. The rates for youths victimised aged 12 to 17 was 2.3 times higher than that of adults. 44% of rapes with penetration occur to children aged under 18. Victims younger than 12 accounted for 15% of those rapes and another 29% between 12 and 17. Keeping these statistics in mind let us take a small detour into science and enrich our knowledge. It is often said that the first of a goodnight in bed extends beyond the four walls of the room itself. However, when such wonderful things are misused by lout people it can deemed as the real issue of concern. Children are young mind that are able to hold ample amount of memory and information and recollect at their will for future beneficial purposes. A child’s mind should be compared with a delicate bubble thus causing havoc beyond imagination. An incident like child Abuse, rape, sexual assault can stay in their mind and traumatise the child beyond time’s wildest imagination.
DEFINITION OF HUMAN TRAFFICKING
Human trafficking has been defined as the recruitment, transportation, transfer, harbouring, or receipt of persons by improper means (such as force, abduction, fraud, or coercion) for an improper purpose including forced labour or sexual exploitation.[1]
- Sex Trafficking
Sex trafficking is a crime when women, men and/or children are forcefully involved in commercial sex acts. In India, any minor under the age of 16-18 engaged in commercial sex acts is automatically considered a victim of sex trafficking under the law. Worldwide, it’s estimated that there are 5 million victims of sex trafficking. People who live in underdeveloped countries are offered employment opportunities in different developed countries. For example, young girls and boys are sent overseas to work in construction, agriculture and may also be offered jobs such as models, nannies, waitresses or dancers but are forced to perform commercial sex acts. They are threatened, abused and sold in the sex industry by traffickers who operate under the garb of agencies that offer dating services. The Constitution of India has also prohibited exploitation of human beings in Article 23.[2] It protects the individual not only from exploitation by the state but also from exploitation by private individuals. Trafficking of children, particularly the girl child and minor[3], is also a criminal offense under various sections of the IPC.[4]
- RAPES COMMITTED ON INNOCENT CHILDREN.
Rapes committed on innocent children is one of India’s most embarrassing truths kept a secret due to societal denial, ignorance, and silence owing to the discomfort generated out of acknowledgement. It is a universal problem that occurs across gender, caste, religious, ethnic, occupational and socio-economic groups, threatening a child’s right to protection as defined under different Articles of the United Nations Convention on the Rights of the Child (UNCRC). ‘Child’ for this purpose has been defined as ‘a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’[5]. The UNCRC also protect children under Article 19[6] and Article 34[7] which explicitly discuss on Childs’ right to protection from sexual abuse specifically. The recent survey says that 25% of rapes of children were committed by their employers and co-workers. Also, 8800 child rape cases were registered using the Protection of Children Against Sexual offences Act(POSCO).[8] The IPC makes it an offense to procure any girl under the age of 18 years from any part of India with “the intention or knowledge that such girl will be forced or seduced to have illicit intercourse” and also forbids the procuring of girls from outside the country.[9] Even though a lot of sections are provided in the IPC to penalize wrong doers there still were cases where the accused was acquitted. In Shyamraj v. State[10], a minor girl aged three and a half was raped by a man aged 22. The doctor examined the minor and confirmed sexual assault. He also examined the accused and found “blood stains on his leg and abrasionson the elbow”. The Court, acquitted the accused and drew the conclusion that mere blood stains, injuries or abrasions on the elbow cannot, per se, prove that rape was committed. Again in, Mahinder v. State[11] the court observed that it was important to prove the age of a girl for charging a culprit with an offence under section 375. It must be established beyond reasonable doubt that the age was below the age of consent. No doubt, a conclusive piece of evidence of the girl’s age may be the birth certificate, but unfortunately, in this country, such a document is not ordinarily available and in the absence thereof, ‘benefit of doubt’ favours the accused with acquittal. In State of Punjab v. Ramdev Singh[12] it was held that, “sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self – esteem and dignity. It degrades and humiliates the victim and more so where the victim is a helpless innocent children or a minor.
- CUSTODIAL RAPE
Even though rapes of minor have been happening since time immemorial it is saddening to know that these rapes are also committed by the ones who has to protect the citizens who are vulnerable. Custodial rape refers to cases of rape under custody of police, of hospital, judicial custody, public servants[13] etc. Out of 34,651 total rape cases registered in the country, 95 cases were registered as custodial rapes during the year 2015. Highest number of custodial rape cases were reported in Uttar Pradesh followed by one case each in Andhra Pradesh and West Bengal of custodial rape other than gang rape were also registered in 2015.[14] The Criminal Law (Amendment) Act, 1983 introduced new sections in the IPC, namely, Sections, 376 B to 376D to stop sexual abuse of women[15] in custody, care and control by various categories of persons. . Hence, to reduce the iniquitous rape under custody, rape on pregnant woman, girls under twelve and gang rape, a minimum punishment of ten years imprisonment has now been prescribed in the Indian Penal Code. Accordingly, in Bharwada Bhonginbhai Hirjibhai v. State of Gujarat[16] it was held that taking note of the fact that in India, unlike the Occident, a disclosure of rape is likely to ruin the prospect of the girl’s rehabilitation in a society for all times to risk merely to malign the accused. Moreover, in cases of rape, particularly custodial rape, it is very difficult to get any independent evidence to corroborate the testimony of the prosecutor. In Jayanti Rani Panda v. State of West Bengal[17] a young girl was seduced by a school teacher and when the girl got pregnant he refused to marry her. A case of rape was filled in The Calcutta High Court and it observed that, failure to keep the promise at a future uncertain date does not amount to misconception of fact, if a fully grown girl consents to sexual intercourse on the promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity.
3.1) UNREPORTED CASES
Survivors don’t often confess rapes due to fear of humiliation and retaliation. Some of the survivors have experienced some form of harassment or violence in public. Most rapes and sexual assaults go unreported, because the perpetrators are closely related to the victims. Rape cases drag on for years, and victims lose their faith and confidence. Accordingly, in Bharwada Bhonginbhai Hirjibhai v. State of Gujarat[18] it was held that taking note of the fact that in India, a disclosure of rape is likely to ruin the prospect of the girl’s rehabilitation in a society for all times to risk merely to malign the accused. Custodial rape is very common by the police, teachers, doctors, who have duty to protect women and children from crimes, but such cases not reported due to influence of their power. Accordingly in State of Maharashtra v. Chandra Prakash Kewaichand[19] the custodial rape was committed by a police officer in a hotel within the limits of the jurisdiction of his own police station. The question before the Court was whether a crime committed by a person in authority should be approached by the court in the same manner as in any other case involving a private citizen.
- STATUTORY RAPE LAWS UNDER DIFFERENT COUNTRIES:
In some common law jurisdictions, statutory rape is non-forcible sexual activity in which one of the individuals is below the age of consent. Although it is usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes.[20]
- The age of consent
In many jurisdictions, the age of consent is said to be the functional age. This is taken to be the basic standards for determining the minimum age where a person can give his consent for sexual activity. Individual below that are barred under the statutory laws for indulging in sexual activity.
Below are discussed the age of consent of different countries and their statutory provisions :
SOUTH AFRICA
The Age of Consent in South Africa is 16 years old. Individuals aged 12[21] or younger in South Africa are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape or the equivalent local law.South Africa statutory rape law is violated when an individual has consensual sexual contact with a person under age 16 and is liable for the punishment under the provision.South Africa does not have a close-in-age exemption[22]because of which, it is possible for two individuals both under the age of 16 who willingly engage in intercourse to both be prosecuted for statutory rape, although this is rare. Similarly, no protections are reserved for sexual relations in which one participant is a 15 year old and the second is a 16 or 17 year old.According to Section 15, it prohibits the commission of “an act of sexual penetration with a child who is 12 years of age or older but under the age of 16 years”,
Section 15 and 16 were found to be inconsistent with the Constitution and invalid to the extent that they impose criminal liability on children under the age of 16 years. A cessation was placed on all investigations and ancillary proceedings against, children under the age of 16 years who have been convicted of an offence referred to in s. 15 or 16, or issued a diversion order following a charge under those provisions, are to be issued certificates of expungement.[23]
The law includes a close-in-age exception, so that sexual acts between two children where both are between 12 and 16, and where one is under 16 and the other is less than two years older, are not criminal.[24]Children under the age of 12 are presumed by the law to be incapable of consenting, so a sexual act with a child under that age constitutes rape[25]
UNITED STATES:
The Age of Consent in United States is 16 years old. Individuals aged 15 or younger in United States are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape or the equivalent local law. United States statutory rape law is as such where each state in the United States has local laws setting an age of consent and associated laws such as close in age exemptions. United States has a close-in-age exemptionenforced in a way to prevent the prosecution of underage couples who engage in consensual sex and one or both are below the age of consent.[26]
UNITED KINGDOM:
For England and Wales, the statutory provisions of the Sexual Offences Act 2003 differentiates between sexual contact with children under 13, and sexual contact with those at least 13 but under 16.[27]
The Explanatory Notes read: “Whether or not the child consented to this act is irrelevant”.[28] A minor can also be guilty for sexual contact with another minor (section 13), but the Explanatory Notes state that decisions whether to prosecute in cases where both parties are minors are to be taken on a case by case basis.
The Crown Prosecution guidelines state “it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption.”[29]
INDIA:
Statutory Rape is defined in Section 375 of Indian Penal Code, (amendment of 2013) which states that “any male, who does an intercourse with any female who is below the age of 18, with or without her consent will constitute a Statutory Rape”. The consent of the minor is immaterial and will not be considered any defence to the accused.
The Age of Consent in India is 18 years old. India statutory rape law is violated when an individual has consensual sexual contact with a person under age 18. The age of consent lowers to age 15 if the couple are married. There is no close-in-age exemption in India.
The Protection of Children against Sexual Offences Act, 2012 which aimed to define various offences against the minor/children to provide penalties to them. Before this Act was passed, the age of consent was 16 years of age. As the new Act came into force the exploitation of children will reduce at some extent.
This Article is written by Abdul Rahman Sadiq. P & Varsha N,
Student, School Of Excellence In Law, Tndalu
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] Definition given under united nation office on drugs and crimes
[2] Prohibition of traffic in human beings and forced labour(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them
[3] Defined under section 2(cb) of The Immoral Traffic(Prevention) Act, 1956 as a person who has completed the age of sixteen years but has not completed the age of eighteen years
[4] Sections 366, 366-A, 366-B, 372, and 373 of the IPC.
[5] Article 1 of UNCRC
[6] 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
- Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
[7] States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.
[8] NCRB(National Crime Records Bureau), 2015.
[9] The first section imposes a punishment of imprisonment for up to 10
years plus a fine.
[10] 1995 Cr. L.J. 3363.
[11] 1984(3) Crimes 58.
[12] AIR 2004 SC 1290
[13] Defined in Section 21 of the Indian Penal Code, 1860.
[14] https://ncrb.gov.in/StatPublications/CII/CII2015/chapters/Chapter%205-15.11.16.pdf
[15] Section 10 of the Indian Penal Code, 1860 defines woman as a female human being of any age.
[16] (1983) 3 SCC 753:1983 SCC (Cri), 728.
[17] 1984 Cri. L.J .1535.
[18] (1983) 3 SCC 753:1983 SCC (Cri), 728.
[19] AIR 1990 SC 658.
[20]“State Legislators’ Handbook for Statutory Rape Issues” (PDF). U.S Department of Justice – Office for Victims of Crime. Retrieved 2018-02-09
[21]Section 15 Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
[22]Close in age exemptions, commonly known as “Romeo and Juliet laws” in the United States.
[23] In Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (2) SA 168 (CC),
[24]“Age of Consent” (PDF). IACAC. Archived from the original (PDF) on 09-02-2018. Retrieved 23 June 2013.
[25]Mahery, Prinslean; Proudlock, Paula (April 2011). “Legal guide to age thresholds for children and young people” (PDF) (5 ed.). Retrieved 9 -02- 2018.
[26]Individuals are below the age of consent or where the age of the offender is close in age to the minor, in so called “Romeo and Juliet” laws.
[27] “Sexual Offences Act 2003”. Retrieved on 11-02-2018
[28] “Sexual Offences Act 2003”. Explanatory clause
[29]“Sexual Offence Legislation: Rape and Sexual Offences: Legal Guidance: Crown Prosecution Service”. Retrieved on 11-02-2018