In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the child sexual abuse in the domestic sphere as well as in Juvenile Justice home, legal provisions and the POSCO Act for the child sexual abuse.

India is the second most populous country in the world and is a home for 430 million children which means 42% of the total population in India. Out of the entire population of children, 50% of the population is under care and protection i.e. the protection from child sexual abuse. Child sexual abuse includes rape, sexual harassment, etc. is a problem which has become a growing concern in India. It is a fact that millions of boys and girls are sexually abused within and outside their homes by relatives or by known persons. In India, children are expected to obey and respect others without questioning their actions. The impact of child sexual abuse is worse in India than in any other country of the world.

Child sexual abuse in domestic sphere

Child Sexual Abuse (CSA) is a mental or physical violation of a child with sexual intent, generally by a person who is in the position of power and trust of a child. Apart from the definition, sexual abuse also includes:

Firstly, an adult revealing his/her genital organs to the child and influencing the child to do the same for them i.e. exhibitionism.

Secondly, an adult touches the child’s genital organ with hands or with other objects and persuading the child to touch their genitalia i.e. touching and fondling of a child.

Thirdly, an adult having anal, oral and vaginal intercourse with a child with or without penetration i.e. assault which includes rape and sodomy.

Fourthly, an adult is persuading or encouraging a child to hear, read or view any pornographic material.

Fifthly, an adult forcing a child to indulge in any sexual activity.

Sixthly, an adult marrying a minor, or minor marrying another minor is considered to be a forced relation.

Children are not only the victims of child sexual abuse but are also traumatized by the law because they are unaware of the act itself. Due to the trauma which children are suffering, their future gets jeopardized.

There are very few cases of child sexual abuse which are reported. Other victims do not even share their plight with their parents. The worst part is the feeling of silence and shame which characterizes the cases of sexual abuse amongst children. To overcome the detrimental effects of child sexual abuse, youth must be protected from this harm. It is imperative to capture the perpetrators of the sexual assault against Indian children. The increasing menace of child sexual abuse is not just limited to domestic spheres but extended to places which aim at protecting the interests of the child such as Juvenile Justice Homes.

Child Abuse in Juvenile Justice Homes

The main aim of the juvenile justice act is “to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by providing a child-friendly approach in adjudication and disposition of the matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.” [1] In spite of the aim and objective of the Juvenile Justice Act, its implementation has resulted in child sexual abuse in many states. Many of the rape cases have been taken place in juvenile justice homes i.e. with special families, observation homes, or shelter homes, etc. The girls remain at high risk of assault and abuse even in the protection home. There are many cases in which the perpetrator are staff members including caretakers, security guards, etc. In most of the cases, the sexual assault continues for a longer period as victims are not ready to dissent and endure quietly in the absence of inspection. The cases like two minor girls are assaulted by the manager of Baba Deep Jyoti Anath Ashram in Odisha[2], or boys sodomised by guards and senior inmates at govt. run Ashiana home for boys[3], Delhi or Arya Orphanage Case, Delhi, related to sexual abuse of a child in Juvenile Justice Homes.

To overcome the growing menace of sex crimes against children in India, there are legal frameworks of rights and guarantees enacted in the support of children. These include a vast array of legal enactments ranging from Constitution from one point view to the Indian Penal Code and other statutory provisions like Protection of Children from Sexual Offences Act (POSCO) on the other.[4]

Legal provisions related to child sexual abuse

Until 2012, there was no appropriate legal framework in India which deals with child sexual abuse. Earlier sex crimes against children were protected by section 354, 375, 377,509 of Indian Penal Code, 1860. Section 354 deals with “Assault or criminal force to woman with intent to outrage her modesty,”[5] Section 374 deals with rape, Section 509 states any person who intends to insult the modesty of a woman through word, gesture or act and Section 377 of the IPC deals with unnatural offence

The pornography was dealt with Young Persons (Harmful Publication) Act, 1956. In the year 2012, the Parliament of India has passed the Protection of Children against Sexual Offences Act (POSCO) for the victims of child sexual abuse below 18 years of age.

Salient features of POSCO Act

Firstly, POSCO Act is gender neutral. The consent of the child is immaterial under this act.

Secondly, this law mandates the reporting and recording of sexual abuse against a child. Section 19(1) of the POSCO Act makes it compulsory to report the offence.

Thirdly, this act lists the sexual crimes committed against a child. Section 3 of the POSCO Act states: “A person is said to commit “penetrative sexual assault” if (a) “he penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a child or makes the child to do so with him or any other person”; Since the words “any other person” are used in Section 3(a), women may also be offenders or victims under the second part of Section 3(a)”.[6]

Fourthly, it also provides protection to minors during the judicial process.

Fifthly, “Section 5(j): “Whoever commits penetrative sexual assault on a child, which in the case of female child, makes the child pregnant as a consequence of sexual assault.” However, even in these offences, women can be joined as abettors under Section 16, POCSO Act”.[7]

Provisions of POSCO

1)  As soon as the matter is reported to the police officer, within 24 hours, the case should be presented before the Child Welfare Committee.

2)  The statement of the minor should be recorded in his or her home or his or her favorite place only by a female police officer.

3)   This act also provides a speedy trial and in camera proceedings to ensure confidentiality.

4)   The minor should not be called in the court repeatedly. He or she may be testified through video from home.

5)  The medical examination must be conducted by a female doctor, in the presence of a person whom minor trusted. Consent of the parents or guardians if present, otherwise the consent of medical professional on the behalf of a minor is required.

6)  The defense should route all the question through the judge and cannot ask any aggressive or character assassination questions to the juvenile.

7)  The minor should not be exposed to accused in any way during the recording of evidence.

Punishment enumerated under POSCO

1. For penetrative sexual assault, the sentence not less than seven years extended up to life imprisonment along with fine under section 4 of the POSCO Act.
2. Aggravated sexual assault committed by a person of trust or authority like police officer under section 6 would be punished with not less than ten years and extended up to rigorous life incarceration and fine.
3. For the non-penetrative sexual assault committed by a person with sexual intent must be punished with not less than three years and extended up to 5 years of imprisonment under section 10 of the POSCO Act.
4. Under section 10, if the aggravated sexual assault is done by the authority or by the person of trust, it would be punished with not less than five years and extended up to seven years of incarceration.
5. For sexual harassment under section 12 of the POSCO Act, prescribes a punishment of 3 years along with fine.

“As per section 42 of the POCSO Act, where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”[8]

Conclusion

Sexual abuse of a child is veiled in secrecy. It is essential for parents and guardians of the child to get sensitized and understand the degree of the problem. It is also crucial for the parents to create a protective environment for the child and to guide their children how to protect themselves from sexual abuse.

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[1]Retrieved on http://www.achrweb.org/reports/india/IndiasHellHoles2013.pdf

[2] Ibid

[3] Ibid

[4] Ibid

[5] Retrieved on https://indiankanoon.org/doc/203036/

[6] Retrieved on http://www.legalservicesindia.com/article/article/crusading-against-child-sexual-abuse-through-law-introspecting-the-posco-1908-1.html

[7] Ibid

[8] Ibid