Sexual abuse of Children is not new, nor is it peculiar the need for the advertisement and discussion regarding sexual abuse against children has increased manifold mainly due to two rationale. Firstly, Within the legal system, children are regarded as unreliable witnesses this factor with number of additional factors such poorly investigated cases, unprepared witnesses leads to acquittal of perpetrators of crimes against children, and a consequently low conviction rate. Secondly, the reluctance of children and parents in complaining about the incident due to the fear of threats and humiliation. This research paper provides a brief overview of the legal framework within which child sexual abuse is managed in India, also identifies some procedural problems which leads to the breakdown of the criminal justice system and provides preliminary methods for solving such breakdown. With the plethora of cases which are to be adjudicated by the courts in India, a large number of cases revolving around this subject goes unnoticed. With the increasing public pressure, The Protection of Children against sexual Offences (POSCO) Act came into effect on November 14, 2012. Apart from the common law offences dealt with earlier, there are offences in our law that are applicable to child abuses which have been enacted by legislation. The purpose of the POSCO Act is to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences. The Posco Act is gender neutral which drives in a sense of comfort for the fact it recognises the crime against boys as well girl and making reporting and recording of sexual offences mandatory. Thus, the research broad aim is to contribute to discussion on the implementation of children’s’ right in justice system and the practical implication of realising such rights.
“Abuse is never deserved; it is an exploitation of innocence and physical disadvantage, which is perceived as an opportunity by the abuser.”
― Lorraine Nilon
What relatively occurs on the forefront as any other malice in the society, to which people have been tolerant since ages, is actually the most heinous crime that a person can come across. Sexual offenses against children hampers the health of the victimized child mentally, physically, emotionally, intellectually and socially in the very first decade of their life itself and in some circumstances in the very first few years. It is uncanny and the unstated truth that in as much as we as a country are trying to implement laws for sexual offences against children, the more we have started to accept it as a part and parcel of the everyday routine that we follow in our lives where it has become pretty normal to come across or hear about such incidents which scare and amaze us to the very core and make us indebted to think how gross it would be to even think of such an act leave aside the commission. But at the end of the day we end up generalizing this crime because it has now become an accepted but sad reality.
Crime against children shall not be generalized owing to the fact that victim stigmatization in case of crimes against children is much more complicated and difficult to deal with as compared to stigmatization of victims in other offences. The stimulation in a child is different from adults due to which they are, in most of the cases, unable to recognize the crime as a wrong against their body and their well-being. Children are the future of this country and thus there arises additional responsibility upon the state to ensure safety of the children of this country for their proper development. This paper highlights the distinguishing features of POCSO and focuses on issues that might have consequences for how the law operates in reality. In this reflexive piece, we begin by briefly discussing the prevalence of Child Sexual abuse in India, the legal response to it, the salient features of the POSCO Act, the striking features adopted in other countries legislation and thereafter discussing the suggestive measures which can be taken up for a proper administration of justice and prevention of sexual abuse in India.
PREVALENCE OF CHILD SEXUAL ABUSE IN INDIA
There have been made several assumptions as to why Child Sexual abuse is prevalent in a developing country which has forayed into the world of zero tolerance against moral offences. Researches have led to conclude that sometimes mere curiosity and sometimes the mindset of people who think that it does not affect the future of children and leaves no negative consequences and thus find themselves committing the offence with no guilt and finding themselves unapologetically into the legal trap. The reality is quite different than assumptions. Nonetheless, after trying to make people constantly aware of these facts, the myths prevail.Adults of our society are interpellated with many unacceptable stereotypical messages and the same is passed to future generations. Child sexual abuse in India thrives on this very mentality. The National Crime Records Bureau registered the report of total of 8800 cases against children, the number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act. Sexual offences and kidnapping account for 81% of the crimes against minors and if looked State wise Uttar Pradesh led the highest number of child abuse cases (3,078) followed by Madhya Pradesh (1,687 cases), Tamil Nadu (1,544 cases), Karnataka (1,480 cases) and Gujarat (1,416 cases). Along with workplace cases, here are other findings of rapists being known to children: 94.8% of rape cases saw children being raped by someone they knew, not strangers, these acquaintances include neighbours (3,149 cases) who were the biggest abusers (35.8%), 10% of cases saw children being raped by their own direct family members and relatives.
LEGAL RESPONSE TO THE PREVALENCE OF CHILD SEXUAL ABUSE IN INDIA
The era of revolts and protests has brought about a major change in the dimension of how the legal framework on this subject has evolved, rather changed, over the years. The increasing number of cases and the public awareness has been successful in creating a pressure upon the legislative as well as the judicial wing. In purview of this pressure, sexual offence against children was regarded as a special crime and an explicit and extensive piece of legislation was passed in the name of Protection of Children against Sexual Offences which came into effect on and from November 14, 2012. Before the passing of this act there was no special legislation or concrete law to criminalize the offences beyond the ambit of the Indian Penal Code such as sexual offences against male children. The POCSO Act is gender neutral and it covers sexual offences against boys with as much seriousness and extension as girls. The United Nations Convention on Rights of a child (UNCRC) has defined a child as, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.” Also, when a child is below 14 years of age, his or her consent is immaterial because he or she had no knowledge about such act.
SALIENT FEATURES OF POSCO ACT
First of all we must be clear as to whom does this Act pertain to and who it seeks to protect. The POCSO Act is a special piece of legislation which creates laws against sexual offences committed against children where a child is any person who has not attained 18 years of age. The UNCRC is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The POCSO Act applies the methodology of recognizing certain acts as sexual offence against children and providing for relevant punishments in this regard. Sexual offences within the meaning of this Act shall include the following as laid down in chapters II, III and IV of the said act:
- Penetrative sexual assault- Penetration that is peno-vaginal, peno-oral, peno-urethral or peno-anal, fingering or object penetration.
- Aggravated penetrative sexual assault- committed by a person of trust or authority such as a police officer.
- Non-penetrative sexual assault- Committed by whoever with a sexual intent,
- Touches the vagina, penis, anus or breast of the child
- Makes the child touch the vagina, penis, anus or breasts of such person or any other person
- Does any other act with sexual intent which involves physical contact without penetration.
- Aggravated non-penetrative sexual assault- Committed by a person of trust or authority such as a police officer.
- Sexual assault- Unwelcome sexual remarks, emails or telephone calls; taunting, jeering, demands or requests for sexual favours.
- Use of minor for pornographic purposes- Involving a child in the preparation, production and/or distribution of pornography via print, electronic, computer or any other technology. Along with this, possessing child pornography is also an offence
- Attempt of offence.
- Abetment of offence- Instigating a person to commit an offence; conspiring to commit an offence; intentionally aiding an offence.
- Failure to report an offence.
It can be very well established that the POCSO Act covers all known types of sexual offence towards minors. The judicial process has also been provided for in the act with due consideration being given to the protection and safety and comfort of the child during such process to ensure overall justice to the minor. To avoid re-victimization of the victim at the hands of the judicial system, special courts have been set up. From the initial stage of the process itself, strict provisions have been provided for to render the Act child-friendly. The right to privacy and confidentiality during the judicial process is mandatory to be maintained. This proves that the law operates in the best interest of the child for overall development.
STRIKING FEATURES IN INTERNATIONAL LEGISLATION
The law of United Kingdom in its Sexual Offences Act, 2003 has expressly mentioned that engaging in sexual activity in presence of a child and causing child to watch sexual act when the child is below 18 years of age is a penal offence. Provisions regarding such acts have not been provided in the Indian law. As regards United States of America, child sexual abuse has been recognized specifically as a type of child maltreatment in U.S. Federal law since the initial congressional hearings on child abuse in 1973. In turkey, child abuse has not been defined as an offence.
“One Person’s discipline is another’s abuse, and to perpetuate even this narrow exception to criminal liability, operating as it does within a system designed to reject responsibility for conduct whenever there is ‘reasonable doubt’, can encourage a climate for child abuse, and furnishes a slippery slope down which even the most well-meaning of disciplinarian may unwittingly slide.” Thus looking forth the current situation the following suggestive measures can be taken in view to prevent the breakdown of the criminal justice system. Firstly, Rather than over-criminalising the acts, stress should be given to relevant areas such as implementing the provisions. The courts should follow the provisons of the POCSO Act strictly while dealing with cases under the Act and must always remember that children are vulnerable and must be treated with extreme cautiousness to avoid hostility during the procedure of the trail. Also, judges who have adequate experience, knowledge and sensitivity in this area of offence must be appointed as judges of the Special Courts for the purposes of this Act. “Sadly, the result is that POCSO—a necessity in India where 40 per cent of the population is below the age of 18 and where over 53 per cent of children reportedly surveyed in 2007 stated that they had experienced one or more forms of sexual abuse—is not complied with despite being in the statute book. There are demands for stiff penalties, expeditious new laws and fast-track courts although POCSO, as a wholesome law, already says it all,” The Hindu has observed
- Adequate provisions shall be brought into purview for proper rehabilitation and reformation of the child victim into the society during the procedure of the trial and also after that.
- It must be ensured that the POCSO Act is not used for unfair practices as had been seen in a certain case where the father accused the lover of her daughter of commission of sexual offence after he flung with his daughter. It was later established that the intercourse between the girl and the boy as with consent and the girl had run away with the boy because of objections raised by the father regarding their relation.
- Educating the child and parents about why they must always feel fearless and find support in the judiciary system and trust them and come forward to demand justice for the harms that they go through. For this purpose, reporting of sexual offences is mandatory. The legislation has also imposed duty upon the person who has knowledge that a child has been sexually abused and failure to do so shall lead to punishment of six months imprisonment and/or fine.
Furthermore, Parents have no idea how adversely this crime can affect children in their adulthood, despite the harsh statistics, currently there are only four organizations in India working on the issue in a determined manner. Hence, the need is great to make people aware about this issue and talk more about it openly and proper preventive measures must be used, Preventive measures designed to ward off strangers (installing CCTV cameras and providing self-defence training) will be ineffective, as children do not know how to ward off unwanted sexual advances from their known relatives, acquaintances or workplace seniors, who they trust. Thus these are some measures which needs to be look forth urgently.
The complete analysis of the provisions of the POCSO Act renders us with the conclusion that the POCSO Act as a legislative piece is complete in itself and covers the overall areas relating to this special crime. Insofar as the child sex abuse is concerned, POCSO is a wholesome law. The government must create the machinery to implement it and educate its officers besides all stakeholders on what it contains. The state must not waste time exploring alternatives when the answers exist in a law made by Parliament for these special offences against children, the most vulnerable section of society. Now the question arises as to why in spite of such an exhaustive and extensive piece of legislation, proper implementation of the provisions of this Act is arising as a big question mark in the legal and social sphere. The judicial process is being questioned about the non-implementation of the provisions. Neither the legislation is being successful in the prevention of such offences nor is the judiciary successful in giving justice to the victims. In a large number of cases, the offence is not even reported and even if it reaches the trial stage, the provisions only form the part of the text book as the regulatory devices do not function properly. A provision for establishments of special courts has been interpreted unwisely by the regulatory body and some district courts have been doubled up as special courts. Moreover, the manner of investigation of the case and examination of the child victim is to a great extent similar to the examination of an adult victim which can be very dangerous to the mental health of the child owing to the strictness with which examinations in case of adult victims are conducted. If this continues, the POCSO Act will see nothing but a bleak future.
This Article is written by Nikita Agarwal And Shivangi Pathak , Final Year Student, Dept. of Law, 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.
 THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 available at: https://indiacode.nic.in/amendmentacts2012/The%20Protection%20of%20Children%20From%20Sexual%20Offences%20Act.pdf
 Child Abuse Prevention and Treatment Act of 1974, (most recently reauthorized by Public Law No.108-36, (Child Abuse Prevention and Treatment Act of 1974, (most recently reauthorized by Public Law No.108-36, (2003)). 2003)).
 25. Ibid. At para 9.208 ; law reform commission of Canada, working paper no. 38 Assault at p. 46