By: Vaishali Jain* |
“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul”
- Author Dave Pelzer
“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul”- Author Dave Pelzer
In India, 42% of girls have experienced sexual abuse before teenage, reports a survey conducted by United Nations International Children Education Fund (UNICEF) on demographic and health from 2005 to 2013. Sexual abuse in any form is not only a heinous crime in the eyes of law, but also a grave violation of human rights. Rape is a flagitious act. This nefarious act becomes abhorrent when the victim is a child. Children are the most vulnerable victims of such crimes. Child sexual abuse is the social exploitation and victimization of a child by an adult, adolescent or another child.
In India, Child Sexual abuse is dealt by Protection of Children from Sexual Offences Act, 2012 (POCSO Act) where the Preamble states that “An act to protect children from offences of sexual assault, sexual harassment, pornography, and provide for the establishment of Special Courts for the trial of such offences.”This article will focus on paedophilia as a psychiatric disorder, the events which led to the enactment of the POCSO Act, and remedies available under the said Act to child victims.
WHAT IS PAEDOPHILIA?
Paedophilia is one of the prominent reasons of Child Sexual abuse. It is a psychiatric disorder in which an adult experiences sexual attraction towards children. It is a condition during which a person’s sexual arousal and gratification depend on fantasizing and engaging in sexual behaviour that is atypical and extreme. Paedophilia cannot be generalized to a particular race, gender or those belonging to a particular socio-economic status.
One of the most recent incidents of Kathua Rape case in India which took place in 2018, where a 8- year - old girl, Asifa Bano was kidnapped, raped and bludgeoned to death. The Special court termed the crime “devilish and monstrous” committed in the most “shameful, inhumane and barbaric manner”, and the accused were convicted to life imprisonment for 25 years with a fine of Rs. 1 lakh. It is not just India; vulnerable and innocent children have been treated as sexual toys in the hands of paedophiles all over the world. Boris Kunsevitsky, a children’s nurse in Australia, documented the abuse of 47 boys, demanding the boys to smile as he raped them. Viktor Lishavsky of Russia treated the victims as his “personal harem” and committed more than 900 rapes on underage school girls. Earl Bradley, a paediatrician practising in the United States was indicted in 2010 on 471 charges of molesting, raping and exploiting 103 child patients. Some victims were as young as 3 months old. He was sentenced to 14 consecutive terms of life plus 165 years in prison without parole.
These disturbing and horrifying incidents only go to show that many at times victims interact and are exposed to their abusers in their day-to-day lives. One can never be able to recognize paedophiles until they become their unfortunate victims. Paedophilia is not only an offence, but it is also a state of mind where the culprit is mentally ill and therefore this menace needs socio-medical help along with statutory implementation.
HOW DOES INDIA DEAL WITH CHILD SEXUAL ABUSE?
A study conducted in 2007 by Ministry of Women and Child Development, titled “Study on Child Abuse: INDIA 2007” to assess the extent and magnitude of forms of child abuse in India, reported that 53.22% children have faced one or more forms of sexual abuse, such as, making the child fondle private parts, making the child exhibit private body parts and being photographed in nude, and over 20% reported severe sexual abuse.
The journey from “no” law to deal with sexual abuse of children to have a “special” law like the POCSO Act has been a vigorous one. There are certain cases which led to the enactment of the POCSO Act in 2012 that now governs child sexual offences in India. The following timeline lays down the origin of the POCSO Act in India:
· Case of Freddy Peats
Peats was running an orphanage called ‘Gurukul’ in South Goa, but in hindsight, he was actually exploiting the destitute children sexually and selling them to other visiting foreigner paedophiles. Peats’ decade long racket got exposed in 1991. He was convicted in 1996 and was sentenced to life imprisonment.
· Anchorage Case[i]
In this case, British Nationals were accused of engaging in oral sex with the boys in the shelters and forced manipulation of the penis. FIR was finally registered in 2001. The case ended with the conviction of 2 British paedophiles, one of whom was extradited from the United States of America to face trial in India.
· Sakshi Vs Union of India[ii]
A writ petition was filed by Sakshi, an NGO to bring into the notice of the Court the sudden increase in sexual violence cases against children. It was at this time that offences like sexual abuse of minor children and women, by penetration (other than penile/vaginal penetration), were treated as offences falling under Section 354 of the IPC - as outraging the modesty of a woman, or under Section 377- as unnatural offences, instead of being treated under Section 375 as Rape.
The Court in this case remarked that, “the cases of child abuse and rape are increasing at an alarming speed and appropriate legislation is urgently required. We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all promptness which it deserves.”
· RuchikaGirhotra case[iii]
In 1990, a 14-year-old promising tennis player was molested by the then Inspector General of Police (Haryana). After the registration of FIR; Ruchika, her family and friends were harassed. Due to this harassment, Ruchika committed suicide in 1993. It was 19 years after the offence was committed that the trial court convicted the accused of 6 months imprisonment under Section 354 IPC and later enhanced to 18 months. In 2016 the Supreme Court upheld the conviction but reduced the sentence “to the period already spent by him as a special case considering his very advanced age.”
These aforementioned cases prompted the Ministry of Affairs to come out with the Criminal Law (Amendment) Bill 2010 draft, which proposed changes to the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act in relation to sexual offences such as:
· Substitution of the word ‘rape’ with ‘sexual assault’, to make the offence ‘gender-neutral’,
· Widen the scope of ‘rape’ to incorporate penetration by any other part of the body or object;
· Stringent punishment when the perpetrator is in a position of trust and/or authority such as the father, grandfather or brother.
Following which, the Ministry of Women and Child Development introduced the Protection of Children from Sexual Offences Bill, 2011 in Rajya Sabha. The Protection of Children from Sexual Offences Act and the Protection of Children from Sexual Offences Rules, 2012 simultaneously came into force on 14th November 2012.
REMEDIES AVAILABLE TO CHILD VICTIMS
Sexual violence exposes a child to severe mental, physical, and psychological traumas, leading them to suffer from various Post Traumatic Stress Disorder such as anger, depression, anxiety and low self-worth; often lasting for the rest of their lives. It not only interferes with their growth and development- resulting in numerous maladaptive health behaviours but also leads them towards poor social and mental health.
The POCSO Act, 2012 was enacted to Protect Children from Offences of Sexual Assault, Harassment and Pornography with due regard for safeguarding their interest and well-being. This Act provides reliefs to a child victim such as a Child-friendly process, right from the registration of a complaint to the conclusion of a trial. A child is entitled to receive emergency medical care within 24 hours of the Police/Special Juvenile Police Unit (SPJU) receiving information about the crime. If the police have reasonable grounds to believe that the child is in need of care and protection, they must immediately make arrangements for the same and inform the Child Welfare Committee (CWC), who is statutorily responsible for same. The victim is entitled to receive compensation from the state government within 30 days from the date of order of the Special Court, even if the accused is acquitted. Stringent punishment is awarded to miscreants for committing sexual offences against children under POCSO Act such as minimum 20 years of imprisonment to a person who commits penetrative sexual assault on a child who is below 16 years of age, 5 years imprisonment to a person who uses a child for pornographic purposes, and up to 3 years imprisonment to a person who commits sexual harassment on a child.
Recently, the Kerala High Court observed that in POCSO cases there is a lack of professionalism in the investigation such as not collecting legal evidence to prove the age of the victim. The Court took the stand that the victim can file a writ seeking directions for re-investigation in cases where there is a lapse in an investigation by the investigating machinery.
In Re: Alarming Rise in Number of Reported Child Rape Incidents, the Supreme Court of India directed the Centre and the States to set up exclusive Special Courts for trying POCSO cases in districts with more than a hundred cases registered under the POCSO Act. Moreover, Public Prosecutors appointed exclusively under the POCSO Act must be sensitized in dealing with child sexual abuse survivors. The Chief Justices of every High Court must ensure the setting up of special programs in the Judicial Academy of the State which would train the Special Public Prosecutors in issues of law, child psychology, child behaviour, health issues etc.
OTHER MEASURES TO CURB THE MENACE
The socio-cultural beliefs and practices pertaining to parental rights and styles in a closely-knit patriarchal family system, as existing in India, often neglects the sexual and other forms of abuse that a child may report. A large number of cases where the accused is known to the child have ended in acquittal due to the child turning hostile. It is peremptory to initiate and implement a Victim Protection Program (as victims and witnesses are at risk when the perpetrator is powerful, rich or influential and the victim belongs to the economically marginalized community) to provide support to the child to deal with the pressure of turning hostile.
POCSO Act casts a legal duty upon the person who has knowledge that a child is being assaulted, to report the offence. Failing to do so, will result in 6 months imprisonment and/or fine. When you have an apprehension that a child is being abused, you can register an online complaint on the website of National Commission for Protection of Child Rights, or make a call to 1098(a 24-hour child helpline) which is provided by the Ministry of Women and Child Development, or a complaint about the offence can either be made at a Police station or through the Police Helpline no. 100. If the child needs support and help in terms of rescue, rehabilitation, counselling, protection, or foster care then the victim could also contact the District Child Protection Unit (DCPU) or a CWC (Child Welfare Officer). The POCSO Rules, 2020 also provides that state and central governments have been asked to formulate age-specific educational modules and syllabus for children sensitizing them about personal safety.
Child Sexual Abuse is a dark reality that is highly ubiquitous in India. Paedophiles exploit the socio-economic weaknesses of the parents of the victim as such acts are shamed to be discussed in open. Awareness is the most powerful weapon against sexual abuse: a social malefaction that is rampant in every class of society.
The issue of underreporting child sexual abuse in India is due to the fear of indignity, guilt, ostracization from the community, and the most important gap in communication between parents and children. However, it is a good sign that as per the National Crime Records Bureau (NCRB) statistics of 2015, the POCSO Act has resulted in increased reporting of child sexual abuse. As rightly said by Nelson Mandela, “the true character of a society is revealed in how it treats its children” and thus as a society, we should take steps to prevent violence against children, including sexual violence. POCSO Act must be accredited for being comprehensive legislation which expanded the scope of offences to be included under sexual abuse. It also allows for a child-enabling environment during investigation and trial, which immensely helps the victim. Further, even the judiciary has played a proactive role in the implementation of the objectives of the POCSO Act through its various judgments such as establishing Special Courts to exclusively deal with POCSO cases in every district and thus providing speedy trials and adequate victim compensation for the rehabilitation of child victims.
* The author is a student at Government Law College, Mumbai.
[I] (2011) 6 SCC 261 [ii] AIR 2004 SC 3566 [iii] 2016 SCC OnLine SC 985