Author : Joyita Ghosh, Student at KIIT School of Law
Child Sexual Abuse (CSA) is indeed a horrendous crime that can happen to a child. In almost all the instances, it’s a hidden crime, which in most cases is either ignored or not at all reported. It can be said that this crime is one of the most under-reported crime. The fact that a child has to deal with such assault is very disturbing and this effect can linger to one’s life for quite a long time and can make one’s life and surrounding more toxic as time passes. It emotionally damages a child and scar their life. This paper gives a thorough idea of CSA in India and studies its effects and reasons for its existence. This paper also introduces and talks about the Protection of Children of Sexual (POCSO) act which has been enacted in 2012 in a detail. When POCSO was first implemented, faced a lot of complications but eventually began to take shape and started saving lives that would have been long gone and also punishing people who deserved. This also puts across the issues and regulations of POCSO act relating to mandatory reporting, consensual sex, CSA victims and special courts.
KEYWORDS : CSA, POCSO, Special Courts, Age of Consent, Consensual sex, Mandatory reporting.
In the midst of the considerable number of issues that have emerged in recent times, we are neglecting some of the small critical issues. Child abuse is one of the developing concerns in today’s world. In previous years, protesters, non-governmental organizations (NGOs), and the central government’s Ministry of Women and Childhood Development have been busy aiding to breakdown the “intrigue of the quiet” and devised to create generous political energy to address the issue.
It is a crime that goes unreported and has reached epidemic proportions. One in two children in the country is sexually abused, of which 52% are boys and 47% are girls. As indicated by 1 out of 6, “Child sexual abuse is the consequence of damaging conduct that exploits a kid’s weakness and is not the slightest bit identified with the sexual direction of the harsh individual.”
DEFINITION OF CHILD SEXUAL ABUSE (CSA)
The World Health Organization (WHO) defines Child Sexual Abuse (CSA) as “the association of a child in a sexual movement that the individual does not fully understand and cannot make an educated agreement for, or for which the young person does not formally organize, or, more than likely, ignore the laws or social restrictions of society. “
It is a practice of child abuse which comprises sexual activity with a child. A child cannot accept any kind of sexual activity and, at that point, when an offender engages with a minor, he is committing an offence which can affect the victim for rather a long time. This harassment doesn’t have to include physical contact and can take many forms such as:
- Revealing oneself to a minor
- Masturbation in company of a minor/ coercing them to masturbate
- Obscene phone calls, sex-ting, etc
- Sharing pornographic images or movies
- Sex trafficking
WHAT DO PERPETRATORS RESEMBLE?
Most of the culprits are someone the child or family knows. Almost 44.4% of victims under 18 know the perpetrator. About 30% of sexually abused children are abused by family members only. To hurt a child, the abuser need not be an adult. They can have any relationship with the child, including an elder sibling/cousin or close friend, family member, educator, mentor or teacher, supervisor, or parent of another child. The outcomes showed that 93 % of the sexually abused girls belonged to the families that were rural, underprivileged, low in educational background, and of a nuclear family structure.
Before becoming a part of the abuse, the Abusers often establish good relationships with the potential victims and their families. This is called “grooming”. The offender may also play roles within the victim’s family to represent him as trustworthy and appreciated.
Abusers usually control victims to stay quiet about sexual abuse by means of many different strategies:
- They tend to utilize their position of authority over the minor to terrorize
- intimidate the child.
- Make the minor believe that these doings are common or that they enjoyed it.
- may make threats if the minor rejects to join or plans to speak to another adult.
WHERE DOES IT HAPPEN?
Child sexual abuse is an epidemic in this country and occurs in all parts of India, across all social classes. The study on juvenile mistreatment in India (Ministry of Development of Women and Children, 2007) reports that Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse between boys and girls, but the responses of the 13 states of the sample were more or less similar and led to the recognition of the following statistics.
- Children who have been sexually abused can suffer from emotional and mental health problems such as post-traumatic stress and other symptoms of anxiety, depression, suicide attempts.
- It can cause developmental disturbances and distress in adulthood.
- May increase the risk of behavioral problems such as aggression, non-compliance, etc.
- Academic problems in childhood can be a common symptom of CSA, such as repetition of grades, absenteeism rates.
- The onset of substance abuse problems in childhood.
- The risk of teenage pregnancy.
REPORTING OF CSA
Only a third of child sexual abuse incidents are identified. About 38% of child victims reveal about being sexually harassed and only 40% of them tell a close friend and such disclosures don’t result in reports. This means a vast percentage of cases goes unreported. Only a 4 to 8 percentage of reports may be fabricated. Only in 19 % of cases, the culprits get arrested. Sexual exploitation and abuse are strongly related to poverty, which take place in families across the entire socioeconomic and religious spectrum.
LEGAL RESPONSE TO CSA
Law perceived major sexual offenses against children were usually been protected by segments of the Indian Penal Code (IPC) not explicit for minors until 2012. The main violations recorded were rape (non-consensual intercourse, article 376), offending a female’s humility (unspecified acts, area 354) and unusual acts characterized as “carnal relations against the order of nature with any man, woman or creature “anal sex, homosexuality or inhumanity – article 377).
Child sexual abuse (CSA) has been a familiar problematic issue in India lately. An inviting improvement was the clearance of an extraordinary law – Protection of Children Against Sexual Offenses (POCSO) of 2012 – which condemns a series of actions including assault, provocation and misuse of children for erotic entertainment.
WHAT IS THE POCSO ACT?
The POCSO law describes a child as an individual under the age of 18 and applies to all cases of sexual assault, namely; sexual assault with penetration, sexual assault without penetration, sexual harassment and the use of a child for pornography. From January to June 2019, 24,212 cases of rape or child abuse were registered with POCSO, of which 27% of the cases were investigated, as noted during the parliamentary discussion during the amendment of the law; 4% of cases were closed.
KEY FEATURES OF POCSO ACT
- The term rape is not being mentioned, instead, it has expanded this word in common usage and has not limited it to penetrative sex only up to penis penetration. It had expanded the term penetrative sexual assault as mentioned in section 3 to comprise of oral sex, as well as inserting objects into the anus, mouth, or vagina, in addition to penile penetrative sex. This has led to more protective coverage for the baby. In a 2011 case, (before POCSO) the defendant could only be put on trial for “contempt of a woman’s modesty” by digitally penetrating the anus and vagina of a 5-year-old boy. The prosecution couldn’t prove the violation as the High Court ruled that digital penetration wasn’t perceived as an offence in the Indian Penal Code.
- It criminalizes a wider range of sexual assaults, shorts of penetration in section 7.
- The crime of penetrative and non-penetrative “aggravated” sexual violence is aggravated and supported by severe penalties for a variety of perpetrators and a wider range of situations and has a severe effect on the victim as mentioned in sections 5 and 9.
- Also includes assaults committed by a person who has power over that child, sharing the same home, assaulting a child under the age of 12 and causing personal injury, or getting a child pregnant or infecting the child with HIV, etc.
- The POCSO law has also included aspects of sexual harassment which also stipulates to repeatedly follow, contact the child electronically or directly through sexting or cyber sexual harassment as mentioned in section 11 (iv).
- The law has also established provisions regarding the conduct of these cases in special courts as mentioned in section 35, where judicial procedures can be carried out in a more sensitive way where the victim can give his testimony in private, through cameras or screens to reduce trauma and protect the child’s identity.
- Under the law, a person is guilty of using a minor for pornographic purposes if he uses in any form of means for sexual gratification. The law also punishes individuals who use minors for pornographic purposes that cause sexual abuse.
- This act mainly focuses on 3 issues- a) Age of consent
- b) Compulsory reporting and
- c) Age determination.
Age of Consent
The POCSO law deals with children who commit child sexual abuse crimes and are treated under the provisions of the Juvenile Justice Act of 2000. It considers all sexual assaults as illegal violations which affect persons below the age of 18 and is maintained regardless of consent or age. On the other side.
The law will be interchangeable for consensual sexual relations between two minors and will consider it a crime under this law. However, in 2013, while presiding over a case in which a 15-year-old voluntarily fled with a 22-year-old man, the judge found that criminalizing such actions wouldn’t serve the purpose of the enactment. Therefore, a tension arose which led to the claim that sex between minors whether forced or consensual, which depends on individual circumstances.
Section 19 talks about the obligatory reporting of CSA cases by any individual except those who work close to the child. And if he doesn’t, he risks a prison sentence of up to 6 months or more or a fine.
It also establishes the principles for the regular treatment of the child, the protocols that must be followed by people and hospitals for the examination and treatment of the child, the procedures for carrying out legal proceedings and is the most elaborate law on this issue.
As per section 34(2), it gives the special court the authority to fix the age, yet there are no strategies to follow it. The POCSO will determine the age, and whether the act will apply and influence the result or not in countries like India where the births are mostly not recorded this could be problematic.
ROLE OF DOCTORS
The Act makes provisions for the medical examination of the minor in the least distressful manner. It clearly expresses that medics shouldn’t request legal histories or legal procedure or documents be finalized before beginning the treatment/ examination. Legal procedures can be finished late, after starting medical care.
- According to section 4, the prescribed sentence for sexual assault with penetration is a prison sentence that must not be less than 7 years, but can be extended to life imprisonment and can be fined.
- According to section 8, for sexual assault, the punishments shall be detained not less than three years which may prolong to 5 years.
- For an aggravated form of sexual offence mentioned in section 6, the penalty is a minimum of 10 years in prison, which can be extended to life in prison. Currently, the penalty for sexual assault with aggravated penetration is 10 years to life imprisonment and a fine. The bill increases the penalty from 10 to 20 years and the maximum penalty up to the death penalty.
- For using a child for pornographic purposes, under section 14 punishment is life imprisonment which may extend to 5 years.
IS BAIL POSSIBLE IN POCSO CASES ?
It depends on a certain factor like:
- The determination of the age of the victim after medical examination
- Nature of the case whether sexual harassment or rape or mere assault;
- The extent of involvement of the accused person
- Stage of an investigation by the police
- Chances of tampering with pieces of evidence, if accused is enlarged on bail
- The period since accused has been in jail
- the court will also see if there is any past criminal record of the accused or not.
- he court will also take into consideration if the accused is the sole earner.
In case of penetrative sexual assault, the court doesn’t grant bail in POCSO case. Although they seem reluctant to grant relief before the filing or final report by the investigating officer. Bail is always at the discretion of the Court since the charges are serious.
All offenses under the POCSO Act are considered as grave offenses. Hence they are non-bailable. Nowadays, it has been observed that people tend to misuse such sexual harassment laws. To mainly get compensation from the court persons started to misuse such laws. But, the law is equal for all. So, concerning a chance of getting bail, the whole matter is depending after the completion of the filing of charge sheet before the court.
Child abuse is one of the most heinous crimes that can be committed against humanity. Not only does it disturb the child who has been sexually assaulted, but it also hampers the quality of society in the bigger picture, as children who have experienced such traumatic things early in their lives grow up to become part of society. Controlling child sexual abuse is critical to maintaining a healthy population and thriving growth in the county as a whole.
POCSO Act has made a remarkable contribution to tackling this epidemic which has been spreading in India for quite a long time. It had not only identified the behaviors but also criminalized those unacceptable sexual behaviors which were posing a great threat to the children of our country. This law has made efforts to educate the public and bring justice to the victims. The cases are rising indicating its effect on the surroundings. The reporting has been made mandatory and the prohibition of child marriages had helped save many lives and prevented underage marriages.
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