Issue of Child Sexual Abuse
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Content
- About Child Sexual Abuse
- Data
- Constitutional Provisions wrt Children
- Some International Efforts
- POCSO Act, 2012
- POCSO Rules 2020
- Age of Consent under the POCSO Act, 2012
About Child Sexual Abuse:
- Child sexual abuse is defined as sexual activity with a child by an adult, adolescent or older child.
- If any adult engages in sexual activity with a child, that is sexual abuse.
- If another child or adolescent engages in sexual activity with a child, a grey area enters where some sexual behaviour is innocent exploration rather than abuse.
- The World Health Organisation has defined ‘child sexual abuse as the involvement of a child in sexual activity as he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society’.
Data/Facts:
- Crimes against children increased in India by 16.2% between 2020 and 2021, according to the latest National Crime Records Bureau (NCRB) data:
- There were just under 1.5 lakh cases of crimes against children registered last year across all states and Union Territories. This includes child sexual abuse, abduction, murder, child marriage among other crimes.
- Madhya Pradesh registered the maximum number of crimes against children, with
Maharashtra and Uttar Pradesh in the second and third places. Among the Union Territories, Delhi recorded the highest number of crimes against children (7,118). - The report noted that in percentage terms, major crime heads under ‘Crime Against Children’ during 2020 were Kidnapping & Abduction (45.0%) and Protection of Children from Sexual Offences Act (POCSO), 2012 (38.1%), including child rape.
Constitutional provisions wrt Children:
- Article 21 A: The State shall provide free and compulsory education to all children of the age 6- 14 years.
- Article 24: Prohibits employment of Children below the age of 14 years in any factory or mine or in any other hazardous activity.
- Article 39(f): Directs that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
- Article 45: The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
- Article 243G: Provides for institutionalisation of childcare by seeking to entrust programmes of women and child development to Panchayat (item 25 of Schedule 11).
Policies:
- Protection of children from sexual offences Act, 2012 (POSCO Act): The Act was enacted to protect the children from various types of sexual offences and to establish Special Court for providing speedy disposal of cases.
- The Juvenile Justice (Care and Protection of Children) Act, 2015: This Act was enacted to consolidate and amend the law regarding juvenile in conflict with law and children in need of care and protection by providing proper care, protection and treatment.
Some International Efforts:
- The Global Partnership and Fund to End Violence Against Children were launched in July 2016 by the UN Secretary-General. The Partnership is the only global entity focused solely on Sustainable Development Goal 16.2: ending all forms of violence against children by 2030.
- Together for Girls is a global partnership working to end sexual violence against children and adolescents.
- We Protect Global Alliance brings together governments, the private sector, civil society and intergovernmental organisations to develop policies and solutions to protect children from sexual exploitation and abuse online.
- We PROTECT, established by the UK Government as a global multi-stakeholder response to combating online child sexual abuse.
Way Forward:
- Comprehensive Sex Education: Implement age-appropriate and comprehensive sex education programs in schools. E.g., Good Touch and Bad Touch, etc.
- Community Awareness Campaigns: Conduct widespread awareness campaigns to educate communities about the signs of child sexual abuse, the importance of reporting, and available support services.
- Strengthen Legal Framework: Enhance and strictly enforce laws related to child sexual abuse, ensuring swift justice and stringent penalties for offenders.
- Technology Regulation: Regulate online platforms and monitor online activities to prevent the exploitation of children through the internet.
- Parental Education Programs: Conduct programs to educate parents on recognizing signs of abuse, communicating with children about safety, and fostering open dialogue at home.
- Victim-Centric Approach: Adopt a victim-centric approach in legal proceedings, providing protection and support for the child throughout the investigative and judicial processes.
The Protection of Children from Sexual Offences (POCSO) Act, 2012:
- This law represents the first comprehensive effort to safeguard children from sexual assault, sexual harassment, and pornographic violations. It also entails the establishment of special courts dedicated to the trials of such cases.
Key features:
- Protecting victim’s identity: The Act strictly prohibits the disclosure of a victim’s identity through any form of media, except when authorized by the special courts established under the Act.
- Gender-neutral legislation: The Act provides a gender-neutral definition of a child, encompassing ‘any person’ under the age of 18.
- No reporting time limit for abuse: Under this Act, victims are entitled to report an offense at any time, even if years have passed since the abuse occurred.
- Non-reporting as a crime: Any individual responsible for an institution (excluding children) who neglects to report a sexual offense involving a subordinate is liable to face legal consequences.
A) Protection of Children from Sexual Offences (Amendment) Act, 2019
POCSO amendment Act, 2019, defines what ‘child pornography’ is; ‘using a child for pornographic purposes’ and for ‘possessing or storing pornography involving a child’ is punishable. It has also widened the ambit of ‘aggravated sexual assault’.
- The act seeks to provide more stringent punishment, including death penalty, for sexual crimes against children.
- It refers to the judgments of the Supreme Court in Machhi Singh (1983) and Devender Pal Singh (2002) in which the court had held that the death penalty can be awarded only in rarest of rare cases.
Concerns over death penalty
- The Justice J.S. Verma Committee, which was constituted in 2013 in the aftermath of the Nirbhaya case, after due deliberations found itself against the imposition of death penalty in rape cases.
- The 262nd Report of the Law Commission of India, 2015, also provides for abolition of the death penalty except in terror cases.
POCSO Rules 2020:
- Interim Compensation and Relief (POCSO Rule-9): Rule-9 allows the Special Court to order interim compensation for a child’s relief or rehabilitation needs after FIR registration.
- Immediate Special Relief Payment: POCSO Rules empower the Child Welfare Committee (CWC) to recommend immediate payment from District Legal Services Authority (DLSA) or District Child Protection Unit (DCPU) funds for essential needs like food, clothes, and transportation. Payment must be made within a week of CWC’s recommendation.
- Support Person Provision (POCSO Rules): CWC has the authority to appoint a support person to assist the child during investigation and trial, ensuring the child’s well-being, access to medical care, counseling, education, and keeping the child and guardians informed about court proceedings.
Shortcomings of the POCSO Act:
- Problem with the application of the last seen theory: The last seen theory can lead to wrongful conviction in several cases and therefore, it cannot be applied without circumstantial evidence.
- It was held by the Supreme Court in the case of Anjan Kumar Sarma v. State of Assam that the last seen theory is a weak piece of evidence and cannot be relied upon single-handedly.
- Unprepared investigation machinery: The investigation machinery in the child sexual abuse cases is not well acquainted with the procedure which leads to a faulty investigation.
- Low Women Police Representation
- Despite the act’s one-month investigation timeline, delays occur due to resource constraints, forensic evidence acquisition delays, and case complexities.
- Silent on consensual sexual activities: In case of sexual intercourse with consent, one of which is minor, the partner who is not minor can be prosecuted under the POCSO Act as the consent of a minor is not considered relevant under this Act.
- False complaints by children are not punishable: Section 22 of the POCSO Act provides for the punishment to the persons who file a false complaint to humiliate, extort, threaten, or defame another person.
- However, a child is exempted from any such punishment which is a loophole as many people take advantage of this exemption and misuse this provision.
- Pending cases: Although, the POCSO Act specifies that “the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence” under Section 35(2) but the number of pending cases is rising which is creating a huge problem in making the justice mechanism effective.
Way forward/Suggestions:
- Nationwide awareness programs on the POCSO Act will encourage reporting and educate investigating agencies for better implementation.
- Special Police Units for POCSO crimes in each district, with counsellors and child welfare experts will facilitate sensitive handling of cases.
- Fast Track Special Courts under the Act must be set up in each district for time-bound trials and increased conviction rates.
- Provisions on rehabilitation of victims through education, vocational training must be incorporated.
- The Act should be amended to cover consensual sexual relations between children aged 16-18 years and recognize male child abuse victims.
- Timelines must be defined for medical examination and collection of forensic evidence after complaint filing for better results.
Law Commission Report: Age of Consent under the POCSO Act, 2012
Recently, Law commission has recently come up with Report #283 Titled: Age of Consent Under the POCSO Act, 2012, in which it has advised against changing the present age of consent under POCSO act which is 18 years. (Section 2(1)(d) of POCSO act defines: ‘child’ means any person below the age of eighteen years).
Issues related to age of consent under POCSO Act:
- The POCSO Act mandates a minimum sentence of 10 years for statutory rape, disregarding the consent of minors aged 16-18. The act maintains a gender-neutral stance.
- Since the enactment of the POCSO Act in 2012, there has been a rise in the age of consent from 16 to 18 years. This led to an increase in the prosecution of adolescents engaged in consensual sexual activities among minors.
This has following concerns:
- Leads to shame and stigma associated with criminalization of consensual sexual activity.
- While these cases do not necessarily lead to conviction, the stringent law results into denial of bail and prolonged incarceration.
- Most people adversely affected with this provision are youth from poor and marginalized population.
- A UNICEF India study conducted in West Bengal, Assam, and Maharashtra revealed that one in every four cases under the POCSO Act involved ‘romantic cases and consensual relationships.
- Often when the children (below 18) who elope or marry, the male partner is sent to jail and the women is usually pushed towards a life of poverty and destitution (observed in Veekesh Kalawat vs State of MP)
- The state is not obligated under POCSO to provide the basic minimum required for the survival of the female and/or her child.
Views of Law Commission against reducing age of consent:
- Existing age of consent (18 years) should not be tinkered due to dangers of child abuse, trafficking, and prostitution.
- Consent can be manipulated, thus a lot of genuine cases falling under POCSO might not see trial on account of agencies declaring them to be cases of consensual romantic relationships.
- In many cases, ‘consent’ arises after the occurrence of alleged offence, thus reducing age of consent can provide escape to child abusers.
- Can lead to negative fallout on fight against child marriages.
- Emerging trends of grooming and cybercrimes such as sextortion against women, increase vulnerability of children to sexual exploitation necessitate a need for stringent protection.
- Provide a gateway to abuse of law leading to coercion of minor girls into subjugation, marital rape, and trafficking.
Way forward/Suggestion:
- Law Commission has suggested for introducing guided judicial discretion to deal with situation in case where there is tacit approval on part of child aged between 16 to 18 years.
- However, scholars have emphasized placing the child at the centre while formulating laws, while POCSO serves protection of young from sexual abuse, equally important is to protect young from being shamed, punished and jailed for exploring what is developmentally appropriate for their age.
- Age-appropriate sexuality education should be given in schools.
- Access to confidential medical counselling.
- Prohibiting laws from criminalizing consensual sexual activity with peers.
- Courts to address these matters with sensitivity and increased public dialogue.
- ‘Close-in age’ exception in case of consensual relationships as followed in USA and Canada can be looked into.