INTRODUCTION
Sexual abuse of minors has become a global concern now. Almost every part of the world faces this problem. Child sexual abuse includes touching and non-touching activity. Examples of touching activity include touching a child’s genitals or private parts for sexual pleasure and making a child touch someone else’s genitals, play sexual games or have sex putting objects or body parts. Examples of non touching activity include showing pornography to a child, deliberately exposing an adult’s genitals to a child, photographing a child in sexual poses and encouraging a child to hear or watch sexual acts.[1] In trafficking, human beings are purchased and sold for the purpose of forced labor, child soldiering, sexual slaves, begging, spies, domestic servants in the cities, etc. Child trafficking is the worst form of violation of children’s human rights. Children are trafficked often by child sex tourists.
The term trafficking was first used in the mid-20th century as ‘white slave trafficker’ and ‘the trafficking in women and children’ to refer to forcing women and children into prostitution. Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, also known as Palermo Protocol, define trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, or abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of 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, exploitation of prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.[2] This paper is going to express the views on child sexual abuse or exploitation of child sexually in child trafficking or in society because of various resaons and what are the laws and remedies available in India related to it so that we can protect the rights of the children give them better future as well.
Risk Factors of Child Sexual Abuse
Children s complaint is often not only dismissed by family, but by police, doctors and persons having authority as well Victims may be re traumatized by how they are treated when they disclose their abuse to public In most cases, perpetrators are hardly identified or allowed to remain free The abuses are also repeated Sometimes, the response of adults to abuse cases is completely inadequate rather to protect them, especially when they need assistance and compassion On the other hand, government s failure to create faith in social institutions discourages them from coming forward and disclosing the wrongs committed against them So, it is absolutely essential to protect children from such abuses at a prior stage.[3]
Abuse within the Family or Community
In Gorakh Daji Ghadge vs The State of Maharastra, a father has raped his 13 years old daughter in their home. The Bombay High Court has also dealt with father-daughter relationship. The court said , “In the present case, we have a sordid episode of a father, whose sacred duty is to ensure the welfare of his own, daughter Kusum, who is od the tender age of 13 years to the heinous offence of rape. Crimes in which women are victims need to be severely dealt with and in extreme caese such as this when tge accused, who is the father of the victim girl has thought it fit to deflower his own daughter of tender years of gratify his lust, then only a deterrent sentence can meet the ends of justice.”[4]
In another case, in a government school in Uttar Pradesh, a group of 15 mothers filed a complaint and alleged that the headmaster called girls one by one and took off their clothes and touched their private parts on the pretext of health examination Later, the police arrested the accused headmaster for assaulting a woman with intent to outrage her modesty under Section 354 of Indian Penal Code.
Abuse within Social Institutions
The study also investigated cases of CSA within institutions both private and government which had been well highlighted in the media between 2011-2012. In the absence of effective monitoring of residential care facilities like Apna Ghar and Drone Foundation in Haryana where children were housed within an institution for care and protection and abused by the people running the home were also studied. Cases of sexual abuse within the Shiv Kuti Shishu Grih, a government residential facility for girls in Allahabad, a city in Uttar Pradesh had girls between the ages of 6-12 years facing sexual abuse by an employee for over fifteen years and it was only discovered by chance are also included. Cases from homes in New Delhi, Karnataka, West Bengal, Goa, Haryana and Uttar Pradesh were studied where alleged abusers were members of staff, older children and outside visitors including police officers. But addressing child sexual abuse, according to Human Rights Watch report is a challenge the world over, but in India, shortcomings in both state and community responses add to the problem, as victims who come forward make a complaint often suffer as a result.[5]
CAUSES AND CONRIBUTING FACTORS
Economic Factors: The economic condition of the society is degrading day by day. As the most of the people lives below poverty level and for seeking good job opportunity and education, they got trafficked by the traffickers on their false hope and belief. As trafficking has becomes a lucrative business in the society .
Growth of Tourism: Tourism is the fast growing industry in India especially since India became a part of global market economy. The growth of tourism has led to an increase in demand for children as sex tourism. Sex tourism is not only ‘the preserve psyche’ which makes tourists to use children as objects of sex, but it is also the fear of AIDS that generates a demand for virgin girls.
Domestic Violence: Domestic violence is one of the reason for the trafficking of women. Due to domestic violence, so many women has to leave the house or ran off from the houses but they don’t have place to go or live. This resulted in getting trapped in the web traffickers.
Trading Children and Women: Human Trade becomes on of the prominent illegal business and people started trading children and women to the traffickers just to earn money. This lead to the explotation of the children and women sexually fo putting them in prostitution business or as sex slaves. People started selling children and women for various reasons like financial issue, etc.
Demand in Sexual Services: Demand in sexual services also increases child trafficking in the society and especially child getting trafficked for the pornography as the root cause of increasing in the demand of the sexual services.
LEGAL PROVISIONS RELATING TO CHILD SEXUAL ABUSE IN TRAFFICKING
- Provision under 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 various freedoms enshrined in the Constitution.[6] The Constitution of India prohibits discrimination on the ground of religion, race, caste, sex and place of birth.[7] But, clause (3) of Article 15 provides that nothing in this Article shall prevent the State from making any 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 women and children must inform interpretation if it has to have social relevance. The fundamental right a child should get is the right to live including right to live a healthy life free from exploitation and abuses.[8]
The duty of 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[9]. 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.[10]
- Provision under Indian Penal Code
Until 2012, the only sexual offences against children recognised by the law were covered by few sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse without consent—section 376), outraging modesty of a woman (unspecified acts—section 354) and unnatural acts defined as “carnal intercourse against the order of nature with any man, woman or animal” (anal sex, homosexuality or bestiality—section 377).[11] Section 366A makes it a crime to induce any minor girl under the age of eighteen years to go from a place to force, seduce or have illicit intercourse with another person, which is punishable with imprisonment of any kind which may extend to ten years and shall also be liable to fine Section 366B deals with extra territorial offences penalizing importation into India of a girl, below the age of twenty one years, for illicit intercourse or prostitution.[12] Section 372 and 373 of Indian Penal Code punish trade of minor girls for purpose of prostitution.[13]
- Immoral Trafficking Prevention Act, 1956
The Immoral Traffic Prevention Act is 1986 amendment legislation passed in 1956 as a result of signing by the India of the United Nation’s declaration in New York for suppressing trafficking. This Act is amended by the Indian Parliament twice, in 1978 and 1986. The Immoral Traffic Prevention Act made tough laws against any type human trafficking and the punishment is also provided in the Act according the crime committed by the person. As ITPA protects the rights of women and children in trafficking. The general provisions of ITPA is that the law is applied on the both male and female. The crux of this Act addressed to the trafficking not to the prostitution as all the provisions mentioned under this Act is related to the trafficking and the trafficker trafficked the women for the prostitution then it will come under ITPA but if women is selling her body individually, voluntarily and independent for the exchange of material benefit then this act is not come under ITPA.[14]
Protection of Children from Sexual Offences Act, 2012
POCSO which was enacted in 2012 is gender neutral, makes it mandatory for the victims to report the abuse, lists all kind of sexual offences against children and provides for their protection during the judicial process. Some of the mandated laid down under POCSO are:[15]
- The police officers in every circumstance must bring a case to the attention of the Child Welfare Committe within 24 hours of recieving a report.
- The police officers must also be in civil clothes while recording the minor’s statement so that the child does not get intimidated.
- The statement of the minor must be recorded in presence of the person whom he/she trusts.
- The medical examination of the child for the collection of forensic evidence should only be conducted by a lady doctor in presence of a person that the child trusts.
- Special courts have been set up under the act to conduct speedy and in-camera trials. It is the duty of these court to ensure that the minor is not exposed to the accused while recording his/ her statement, the identity of the minor remains undisclosed, the minor is not asked to repeat his/her testimony in court and that minor can also give his/her testimony through a video, the cases are not delayed and are disposed of within a year from the date of it being reported, an interpreter, translator, special educator or any other expert should be present in court if the minor needs any assistance, and the family of the minor should be awarded compensation for medical treatment and rehabilitation.
Punishment under the Act[16]
- Penetrative sexual assault[17]
The penetration can either be penile-vaginal, penile-oral, penile-urethral or penile-anal, or object penetration. Section 4 of the act provides for punishment not less than 7 years which may extent to life imprisonment and a fine.
- Aggravated penetrative sexual assault committed by a person of trust or authority[18]
Section 6 of the act lays down the punishment which should not less than 10 years; it may also extend to rigorous life imprisonment, and a fine.
- Non-penetrative sexual assault committed with a sexual intent[19]
Non penetrative sexual assault includes touching the vagina, penis, anus or breast of the child or asking the child to touch the vagina, penis, anus or breast of the perpetrator or any other person or any other act done with sexual intention. In such cases, Section 10 provides for punishment for not less than 3 years which may extend to 5 years and a fine.
- Aggravated non-penetrative sexual assault done by a person of trust and authority[20]
Section 10 lays down the punishment which should not be less than 5 years and it may also extend to 7 years, and a fine (Section 10)
- Sexual harassment [21]
Sexual harassment is caused by indecent and sexually explicit remarks, emails or telephone calls; taunting, jeering, or posing a request for sexual favour. The punishment is 3 years and a fine (Section 12).
- Using a minor for pornographic purposes[22]
It includes producing or distributing any pornographic content via print or electronically. The punishment is 5 years and a fine and in case of second conviction, the punishment would be 7 years and a fine (Section 14 (1)).
- Attempt of offence[23]
Section 18 of the act provides for 1 year punishment and fine.
- Abetment[24]
The definition of abetment is same as defied under Section 107 and 108 of the IPC. The punishment is same as that of the offence which is provided under Section 17 of the act.
- Failure to report an offence[25]
The punishment is six months and a fine provided under Section 21 of the act.
CONCLUSION AND SUGGESTION
India has been ranked as a “Tier II Watch List” country, only one level better than worst perfroming Tier III countries such as Saudi Arabia and Zimbabwe as the report is compiled by the United States Department. Child Trafficking is one of the increasing and most demanding illegal business in the world. This lead to deteriorating effects on the children’s life who got trafficked by their home, school, etc. As there are various laws and legislations which protect the child from sexual offences. But what are the use of those laws which cannot help the children from being sexually abused in various ways as one of the way is discussed above. There are laws which can protect the child but the question is that are they implemented properly? To protect the child from trafficking, we have to find out the root causes of the child trafficking that why this illegal trading of children is increasing day by day rapidly. POCSO is one of the finest legislation of the government to protect the children from sexual abuse because 48% and 39% of the boys and girls respectively reported as being sexually abused. POCSO is giving protection to the children whose cases are reported but what about the children who can’t able to report about sexual abuse. There are so many children who got trafficked just for sex industry and sold by the trafficker in different countries so they can not able to approach any authorities. What is the status of the unreported cases of sexual abuse because of the unapproachable circumstances by the children. We have to dig the root causes to protect them from being sexual abused because it is not necessary to protect them only after the deteriorating experiences. We have to aware ourselves to protect the children and to make their future bright.
This Article is written by Rittwika Banerjee, Law 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] Dewesh Kumar Kyal & Amrita Kundu, Child Trafficking: Encroachment of Human Character, 2 International Journal of Legal Insight 102, 102
[2] UNICEF’s Training Manual toFfightTtrafficking in Children for Labour, Sexual and Other Forms of Exploitation, Dr. Jane Kane & Mr. Hans Van De Glind, (1st ed., 2009).
[3] Deepa Jyoti Khakha and Vikash Kumar Bhagat, Protection of Children from Sexual Offences: A Socio-Legal Analysis, 1 NLUA Law & Policy Review, 165, 166 (2015)
[4] Gorakh Daji Ghadge vs The State of Maharastra, 1980 CRLJ 1380.
[5] Anjali Singh, India: Breaking The Silence Finally On Child Sexual Abuse, Counter Currents Blog, https://www.countercurrents.org/asingh220313.htm, last seen on 31/01/2018.
[6] Sexual Abuse of Children and The Constitution of India, Rostrum Legal, https://rostrumlegal.com/sexual-abuse-of-children-and-the-constitution-of-india/ , last seen on 31/01/2018.
[7] Article 15, The Constitution of India.
[8] Article 21, The Constitution of India.
[9] Article 39(e), The Constitution of India.
[10] Article 39(f), The Constitution of India.
[11] Jyoti Belur and Brijesh Bahadur Singh, Child Sexual Abuse and The Law in India: A Commentary, 4 Crime Science: A Springer Open Journal 01, 02(2015)
[12] Dewesh Kumar Kyal & Amrita Kundu, Child Trafficking: Encroachment of Human Character, 2 International Journal of Legal Insight 102, 111
[13] Indian Penal Code, 1860
[14] Child Rights, Human Rights Law Network, available at https://www.hrln.org/hrln/child-rights/laws-in-place/1715-the-immoral-traffic-prevention-act-1956.html, last seen on 01/02/2018
[15] https://wcd.nic.in/sites/default/files/childprotection31072012.pdf
[16]Analysis of Indian Legal Position on Child Sexual Abuse, Knallp, available at https://knallp.com/files/3.pdf, last seen on 01/02/2018
[17] Ibid
[18] Ibid
[19] Ibid
[20] Ibid
[21] Ibid
[22] Ibid
[23] Ibid
[24] Ibid
[25] Ibid