This article is written by Arijit Bhowmick pursuing M.A, in Business Law from NUJS, Kolkata and Deepanshi Dwivedi from Dharmashastra National Law University, Jabalpur.

 

“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul”

Introduction

We often hear occasionally about the child sexual abuse cases, many a time there are cases of a newborn being raped and has encountered a lot of troubles, where she can’t discern the nature of the action taken place on her. Discussing child abuse and offences against the child is a vast concept. Nonetheless, the court takes cognizance in every case of child abuse to provide justice to the victim. This article will deal with all the facets and nature, classifications, and uproar against child Abuse in each case and also will look towards the landmark judgment.

As Justice Bhagwati has a quote “The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being” Children have special human rights that are necessary to protect them during their minority.

The children who are being outraged need to be protected by the law and to protect every human life is not only where the only court can provide them justice but it also, becomes an ethical vision and every human either who is stranger to the child, it becomes the moral duty to take him to the hospital with bona fide intentions and it comes to be the matter of humanity.

Meaning

Child Sexual Abuse (CSA): Means attempt or completed act of sexual gratification with or engaging or involving a child who is forced, coerced, threatened etc. against violation. Thus, a mental or physical violation of a child’s rights with sexual intent is committed by a person who is in a position of power to apply such force over that person. CSA includes an array of sexual activities like fondling, inviting a child to touch or be touched sexually, intercourse, exhibitionism, involving a child in prostitution or pornograph, or online child luring by cyber-predators.      

Definitions 

United Nation: Defines it as CSA (Child Sexual Abuse) as a contact or interaction between a child and an older or more knowledgeable adult or child is being used as an object of gratification. The contact and interaction against children are carried out by the use of force, bribery, threats, and pressure etc. UNICEF (United Nations International Children’s Emergency Fund)  has stated that child marriage “represents perhaps the most prevalent form of sexual abuse and exploitation of girls”.

The World Health Organization (WHO) Defines CSA as:

“The involvement of a child in sexual activity that 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 violate the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person. This may include but is not limited to: the inducement or coercion of a child to engage in any unlawful sexual activity; the exploitative use of a child in prostitution or other unlawful sexual practices; the exploitative use of children in pornographic performances and materials”. 

POCSO Act, 2012

Here the term child is the person below the age of 18 years and is gender-neutral.

Protection of child from sexual offences amendment bill 2019, was introduced in Rajya Sabha by the ministry of women and child development on 18 July 2019. It was passed by Rajya Sabha on 24 July and by Lok Sabha on 1st august 2019.

Various punishment under the amendment Act

Under the parent act POCSO (Prevention of Child from Sexual Offence) 2012, it declares that punishment of penetrative sexual assault is between 7 years of imprisonment or life imprisonment with fine but POCSO, 2019 enhances the punishment from 7 years to 10 years and also, further add that if a person commits the penetrative sexual assault on a child below the age of 16 years he will be punished with 20 years of imprisonment to lifelong with fine.

2012 Act defines aggravated penetrative sexual assault which includes certain actions act when the police officer, member of the armed force, and other government officials commit the act. Further actions also include cases where the offender is the relative of the child or the child becomes pregnant or injures the sexual organ of the child. Further the act of 2019, adds two more actions which include 1. Assault resulting in the death of the child and 2. Assault committed during the natural calamity or in any similar situation. It further enhances the minimum punishment from 10 to 20 years and maximum to the death penalty.

Under the act of 2012, the sexual assault actions include when a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration and aggravated sexual assault include where the abuser is the relative of the child or where the assault injures the sexual organ o the child. The 2019 act includes two more offences under the aggravated sexual assault first if it occurs in natural calamity and secondly administering any chemical to the child body for thriving the maturity before the age. Further also, in 2019 committing the act of pornography or storing such images, punishment has been enhanced.

 About the CSAB

Sexual abuse and sex trafficking remain highly prevalent and are among the serious problems in India. In the last two decades, an increase in the prevalence of sexually transmitted diseases has been shown in children. Looking at the various aspects and definition of the CSA, it inherent that can be chalked out are as follows:

• Violation of trust 
• Abuse of power
• Child inability to consent
• The age difference between the abuser and the child
• Sexual intent of gratification 
• Cognitive, emotional sexual development of the child

When educated people either are a stranger to the victim of CSA, he can help them as human behaviour. Lack of awareness of the CSA is not only due to the yokel and mostly uneducated peoples but also, many educated people commit the act and offence to fulfil their sexual desire. 

What can be sexual abuse?

There are a few examples that can lead to the sexual abuse of child they can be:

Sexual harassment

• This can be done via social media or face to face by touching and threatening you about your body and other parts.
• When someone SMS you like they like your body parts.
• When someone presses or rubs their body against yours.
• When someone offers you a reward for their sexual favour.
• When someone makes sexual jokes and continuously stalks your body, commenting on certain private parts makes you uncomfortable.

Rape

• When offender or abuser forces you to have sexual intercourse or oral intercourse with him/her.
• When someone irrespective of your consent stabs a sharp object or penis of his in her vagina or anus.

Sexual assault

• When someone thirties you. 
• Someone shows you their nude pictures etc. comes under the scope of the child sexual abuse for which a child must be saved.

Reports and studies 

A systematic review of 55 studies from 24 countries found heterogeneity in studies in terms of definition and measurement of CSA and concluded that rates of CSA ranged from 8 to 31% for females and from 3 to 17% for males. Nine girls and 3 boys out of 100 are victims of forced intercourse. Heterogeneity between primary studies was high in all analyses. Among 892 female students, 25.6% reported having experienced CSA (any one of 12 forms non-physical contact and physical contact CSA) before the age of 16 years. 

Talking about the ratio in India 

The data collected by NCRB (National Crime Report Bureau) 2015, data on 8,800 child rape cases registered under POCSO Act, added that 25% of rapes of children in a year were committed by their employers and co-workers. Women who were sexually assaulted in the workplace was only 2%. Talking about the cases of 2014, a child abused raised from 8,904 in the year 2014 to 14,913 in the year 2015 under the POCSO Act.

It was found that 94.8% of abusers know the victim and they were not strangers.

In India, a child is sexually abused every 15 minutes, according to the latest government figures. The National Crime Records Bureau report shows a steady rise in incidents of offences against children in the latest reports of 2017. According to the report on crimes in India for 2016, released by Indian Home Minister Rajnath Singh in Delhi, 106,958 cases of crimes against children were recorded in 2016.

Types of child sexual abuse 

Three categories of CSA were used: (a) non-contact sexual abuse (e.g., exhibitionism, indecent exposure, sexual harassment or voyeurism); (b) contact sexual abuse without penetration (e.g., non-genital fondling, kissing, or genital touching); and (c) forced intercourse (i.e. anal, oral, or vaginal intercourse), as previously classified in a WHO publication.

• Rape and sexual assault
• Exhibitionism
• Voyeurism
• Grooming
• Fondling/Molestation
• Trafficking and Prostitution
• Pornography
• Obscene and Lewd Conduct

Talking about each type of sexual abuse cases individually, many infants and children have faced many problems, being unaware of the action taken place on the child, they are unable to give consent due to lack of awareness and mental capability. 

Rape and sexual assault

Basically, rape implies oral, vaginal, or anal intercourse with penetration and when done without penetration it amounts to sexual assault.

Under Indian law when these types of offences are being done by the person known to the child or his any of the relatives then it is known as aggravated incidents and warrants a greater punishment. Talking about the data of NCRB, of 2015-2016 total of 10,854 rape cases were registered pan India and cases rise in 2016, 19765. We are well aware that cases of these types are increasing day by day and by the end of the year the cases reach the zenith.

Talking about the rape cases and sexual assault cases in case of Child marriage, although being declared as illegal it is still prevalent in many parts of the country today.

Many rape cases also, comes under cases registered in child marriage.

However, as per the supreme court of India, sexual intercourse and relation between a man and his wife if she is below 18 years will amount to rape. As the wife is too young, unaware of the fact, ill-informed, and is under the control of their husband and societal pressure, so many of the cases are being unregistered.

Exhibitionism

Non-contact sexual assault is exhibitionism. Exhibitionists are offenders who expose themselves to others, typically a stranger and usually in a public place. These offences could involve anything from a “trench coat flasher” to a male wearing short shorts that allows for his penis to be partially exposed. In the case of the “trench coat flasher,” surprise on the victim’s face is not interpreted as disgust or shock at the act; instead, it is sometimes interpreted by the offender as a surprise about the enormous size of his penis. These perpetrators tend to commit the largest number of offences. 

Voyeurism 

These sex offenders are commonly referred to as “peeping Toms.” Voyeuristic offences consist of a sundry of offences. Some of the most common include perpetrators looking through windows with the hope of seeing people in various stages of undress; taking pictures of others in bathrooms; and viewing others in dressing rooms without their knowledge. These offenders often escalate in risk level, as barely avoiding detection is part of their arousal.

Grooming 

The U.S. Department of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART)uses the following definition of grooming. Grooming is a method used by offenders that involve building trust with a child and the adults around a child to gain access to and time alone with her/him. Many times, we have seen cases where abusers or the offender use the force of power or sometimes threaten or coerce the victim to fulfil their sexual desires and feelings and commit an offence. Aspects of sexual grooming may include:

• targeting the victim, 
• securing access to and isolating the victim, 
• gaining the victim’s trust, and
• controlling and concealing the relationship.

Grooming may take place in ways like in person, via the internet, or in institutional ways.

Other behaviours predators may use during the grooming process are “activities that can be sexually arousing to adults who have a sexual interest in children”. These behaviours include: “bathing a child, walking in on a child changing, deliberately walking in on a child toileting, asking a child to watch the adult toileting, tickling and “accidentally” touching genitalia, activities that involve removing clothes.

Fondling/Molestation

These offences include actual physical contact with the victim of CSA. It may involve forcing a child to touch the abuser’s private body parts, it may involve masturbation and his unwillingness to act, also, imitating body parts and genitals for sexual gratification and arousal.

Trafficking and prostitution

Kidnapping and selling of a child are known as child trafficking and selling of a child’s body for the use of sexual acts is called child prostitution. United nations define prostitution as, an act of engaging or offering the services of a child to perform the sexual act for money or other consideration for that person or other person.

The Worst Forms of Child Labour convention 1999, of ILO (International Labour Organisation), defines it as use, procuring, and offering of a child for prostitution.

Pornography

Child sexual abuse material (legally known as child pornography) refers to any content that depicts sexually explicit activities involving a child. Visual depictions include photographs, videos, digital or computer-generated images indistinguishable from an actual minor. Which are circulated for personal consumption? Section 2256 of Title 18, United States Code, defines child pornography.

Identifying the signs 

When you are not sure whether the child is the victim of the CSA, but you are concerned about the child’s behaviour and have seen the changes in them. Generally, where the child becomes the victim of the CSA and assault has done, the parent should contemplate they must identify the signs that cause the change like the child’s behaviour and what can be its outcomes.

The signs can be identified in three ways:

Behavioural change

When you see that the child was very active before the incidents but now is getting isolated and also, there is a change in his attitude and has become less talkative, the parent should identify the certain signs they are:

1. That child is now shrinking away from or seeming threatened by physical contact.
2. Regressive behaviour like thumb sucking, bedwetting, or other self -soothing actions.
3. Change in hygiene routine like, bathing excessively or not taking bath many days.
4. Age inappropriate sexual behaviour.
5. Changes in sleep patterns, nightmares, sleep disturbances can be considered as some of the behavioural signs to identify whether your child is the victim of CSA or not.
6. Stress accompanying any kind of abuse causes children to feel distressed and frustration.

Physical Signs

Physical signs can be identified by looking at the body parts of the childlike:

1. Bruising or swelling near the genital area. 
2. Blood on sheets or undergarments.
3. Broken bones and other bruises, indicative of being forcefully held down.

Verbal Clues

They can be:

1. Using words or phrases that are too adults for their usage. 
2. Unexplained period of science and suddenly being untalkative.
3. Signs of stammering, and earlier they do not use to be.

Prevention from child abuse

Roles and duties of police 

When the information of the offence is received by the police officer it becomes his duty under the act to:

• Register an FIR (First Information Report).
• To provide the copy of an FIR to the complainant.
• If a child needs a medical emergency, arrange for that immediately without any delay.
• Take the child to the hospital accompanied by his parents and with a person whom the child trusts.
• Ensure the sample collection for forensic examination.
• Inform the parent of a child about the legal advisor and lawyer.

When a child is exploited by, a person in the family, shared household or other places of shelter where a child is residing and found out that child is without the parental support or a home, it becomes the duty of the police to produce the child before the child welfare committee within 24 hours with stating the reason in writing that child needs the care and protection, And request for the detailed assessment from the CWC. After the CWC, the police shall inform the special courts to provide support to the child. The police should inform the victim’s parents in case of the pursuance of the case and other additional information of the abuser. The police have to inform the parents, about certain facts and additional requirements:

1. Availability of medical services
2. Procedural steps involved in criminal prosecution 
3. Availability of the victim compensation
4. The arrest of the offender 
5. Filing of the charge against the offender
6. Dates of the court proceedings
7. Arrest and bail of the offender
8. Rendering of the verdict 
9. And the sentence imposed on the offender

It becomes the punishable act if the officer fails to register the case or to take the cognizance of the offence under Section 326A, Section 326B, Section 354, Section 354 B, Section 370, Section 370 A, Section 376 A, Section 376 B, Section 376 C, Section 376 D, Section 376 E of IPC it is the punishable offence.

One-stop centres 

The ministry of women and child development, the government of India has developed one-stop centres to provide help and financial assistance to the victim of child abuse and gender violence.    

Doctors

It has been now under the POCSO Act has become mandatory for the doctors to register a medical-legal case in all the cases referring and reporting the CSA. Being failed to comply with the following rule of reporting the cases, their punishment can be of 6 months/imprisonment or fine, under section 21 of POCSO Act, 2012.

Medical examination, (it should be done by the female doctor in the presence of the parents of the victim) medical investigation and forensic examination need to be performed if the child is a victim of CSA.

Procedure before the courts 

To ensure the best facilities to the child victim of sexual assault or violence/abuse, the POCSO act provides various measures and deals with every aspect that how a child can be given justice and hoe the victim can be compensated. The act tells about the procedure of the court as:

1. The recording of the statement of the child can be done only at his place of residence and Infront of his parents by a woman police officer, not below the rank of sub-inspector.
2. The child for any reason cannot be allowed to stay at the police station
3. Police officers must be in plain clothes and not in uniform at the time of recording the statement of the child.
4. The statement of the child is recorded as spoken by the child
5. The medical examination must be conducted of girl victim by women doctor
6. The media is barred from disclosing any identity of a child without the permission of the special court.
7. The statement of the child must be recorded within 30 days of the offence and a special court must have to complete the trial within one year.

Role of society 

Always parents have a tremendous and considerable amount of responsibility for their children to help and solve the issues of their children. Every parent should be generous and must carry a friendly nature towards the child, so the child from their teenager can share every hardship with the parents and family and there should be at least one person whom the child can trust. Addressing the suspicion of the parents and their role:

• Children between the age group 3-5 years can be told about what can be contemplated as a reasonable and decent touch or awful and nasty touch or what is alright touch and also, what can be considered as an unfair and outrageous touch.
• The parents should be steady at every stage and reminisce with the children about the parts of bodies, where only their mother can fondle and a child, no other person has the ownership and privilege to touch that part.
• When the children start going to school, they should be nurtured about the discrepancy between the girl’s and boys’ body parts and also, about some of the concerns of that place, also, parents should voluntarily tell the names of the body parts to the children.   

Parents should ask the child to report the unusual behaviour by adults whether he is a stranger or a member of the family or other older person. Education of a child since the child is being admitted to the school becomes very vital. Every child has the right to education instituted under article 21 of the constitution of India. Child surroundings in school, their method of getting an education, teachers’ way of teaching all these comes to be very significant in the life of the child, commencing from their primary education. The naming of the body parts: From the age of infants teach children the names of their body parts, without any embarrassment. Private body parts should not be considered as taboo words.

Assuage their curiosity: every young child becomes bizarre about their thriving body parts to tell the child that “you solely can tickle your own body”. Boosting curiosity becomes important, sometimes it transpires that the child is among the people who flaunt their body parts, and then a child becomes curious and sometimes it runs in the mind of a child to do the same even, unknown about nature and aftermaths. Let them do not come in touch with the awful people in their surroundings, they must have a generous company

Allow them to be in control: Allow your child to control their own body and must have a preference in who can touch their body. Respect the child’s behaviour when he/she is denying the adults to touch their body parts, let them be free to address the issues, and say no to a person whose demeanour is unusual towards that child.

Introduce age-appropriate sex education: In school chapters that earlier used to be skipped by teachers in science, should not be skipped furthermore. Now the nation has changed make children aware of the basic sex education and tell them what are their private parts and what duty they owe towards that. As, the child grows toindulge them with the conversation of the sex, puberty and make the child aware of the incidents that have taken place.

Be open and available: Your child should always have you as a friend and they should always know that they can talk about anything and everything about them with the parents freely. They should understand that you will not judge the child after knowing about the incidents and will respond to the same effect and with proper answers. Children should always know that their parents are for them to protect and safeguard them in every case.

Impact of CSA on child 

Its action of committing sexual abuse on the child is a very fatal and lethal act. and can impact the child very badly. Where the act has laid down the certain punishment for the abuser who commits the act of sexual assault or violence but then also, there has been no decline seen in such incidents. Even educated people are among the ones who commit this dangerous act on a child. We can say as to when an educated and learned personality does not understand what we can say to uneducated youth. looking at the problems not only adults and older ones commit such acts, but also, it has been said that a child below the age of 18 years commits this act and comes under the offender. In-country only we can say is law and court are the major arms that can bring justice to the people and unaware adorable kids who don’t even know that their birth will lead to such a dreadful act on them. Talking about the impact of the assault/violence;

It can lead to: 

• Death: sexual violence act when committed against the child of very tender age can lead to the death of that child. Moreover, after committing such an act the child is being murdered by the abuser so that they can escape from the punishments. Sometimes the child itself commits suicide.
• Severe injuries: committing this brutal act on the smooth body of a child with force can lead to severe injuries like damaging the sexual organ, fracture of bones, marks, and other signs of such acts.
• Unintended pregnancies: when such an act is committed on the child from 8 to18 years can lead to the unintended pregnancies which a child cannot bear and which mentally unstable the child.
• Infertility: sometimes the force is very much used during committing such a brutal act which leads to the infertility of the child.
• Non-Communicable Diseases and STDs (Sexually Transmitted Diseases): since most of the cases of child abuse are committed without using protection and contraceptives, the victim might end up contracting sexually transmitted diseases. 
• Runaway, Dropouts, and Juvenile delinquency; the reports show that mostly the runways from schools and other places mostly occur due to the sexual violence action has taken place on them.

Conclusion 

Preserving the child and their modesty has become the utmost importance for the people and due to the concern for them lawmakers changes and amended the act from time to time, to provide the better and compensation to the victim of the child sexual abuse. Also, so to give the abuser the punishment and to warn the others about what can be the outcome of the particular act if being violated by the police, or doctors or for the abuser who has done such a lethal act on the soft soothing body of the infant. To give child priority irrespective of their gender, hence the word child is being free from gender neutrality, as such an act can be done on boys too other than girls. Hence to make a society aware about the cases and incidents of CSA, they must be educated, even in simple language, must be a campaign by the government to make the people aware of this particular act and to warn the people who think such a dreadful act against a child. Not only parents have the duty for their child but also, every person living in society even just for a case of humanity and to show their ethical values can protect the child even being a stranger to him/her. It is the matter to protect the child and to make the world free from such abuses and bad thinking members living in society.

“The Maltreated child cries ‘I Hurt.’ Unheard or unheeded, that cry becomes prophecy.”

References

• https://indiankanoon.org/search/?formInput=all%20ipc%20sections

• Putnam FW. Ten-year research update review: child sexual abuse. Journal of the American Academy of Child and Adolescent Psychiatry. 2003;42(3):269–78. Epub 2003/02/22. 10.1097/00004583-200303000-00006.

• Wolak J, Finkelhor D, Mitchell KJ, Ybarra ML. Online “predators” and their victims: myths, realities, and implications for prevention and treatment. American Psychologist, 63(2), 111–128. https://doi.org/10.1037/0003-066X.63.2.1112008;63(2):111–28.

• UNICEF pdf. https://www.unicef.org/chinese/protection/files/Child_Marriage.pdf 

• World Health Organization. Report of the consultation on child abuse prevention (WHO/HSC/PVI/99.1) World Health Organization; Geneva (Switzerland): 1999. Available: http://www.who.int/mip2001/files/2017/childabuse.pdf. 

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