child rights
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This article is written by Rohit Raj, a student currently pursuing B.A.LLB (Hons.) from Lloyd Law College. This is an exhaustive article which deals with the problem faced by countries related to child rape and what are the provisions to prevent child rape.

Introduction

“Since most of the sexual abuse begins well before the period of puberty, preventive education, if it is to have any effect at all, should begin early in grade school.”

           -Judith Lewis Herman 

Child rape is mostly associated with the concept of ‘Pedophilia’ which is also called as ‘Paraphilia’ in which a person’s sexual feeling arises towards any children. Child rape is little associated with the concept of Pedophilia because Pedophilia is a condition in which the occurrence of sexual activity with children who are of 13 years of age or below. Child rape is defined as committing forced sexual intercourse by the use of violence or threat against the children who are of 13 years of age or below it. Child Rape is a violent act towards the children and in the form of child sexual abuse.

Child rape is categorized into mainly 3 categories i.e. Sexual abuse by another child or adolescent, Sexual abuse by relatives, and Sexual abuse by any authority over the Child. 

Categories of Child rape

Child rape or sexual abuse of children by different categories of people which classify Child rape in three different categories as mentioned above. 

  • Sexual abuse by another child or adolescent means when any child of age 13 years or below it, violently intercourse with children without their consent by another child or adolescent. 
  • Sexual abuse by relatives means when any child engaged in sexual intercourse due to the threat of any relative or family member. 
  • Sexual abuse by any authority over the Child means any forced sexual intercourse using the threat by the school teachers, religious authorities, sports trainer, or any authority who have control over the child. 

Child Sex Abuse

Puberty is a time when sexual sentiments rise. A few youths may eagerly engage in sexual activity as they explore their sexuality despite their parent’s express wishes or instructions to the contrary. Such exploration, and the parental stress that normally goes with it, is developmentally ordinary and not in itself cause for alarm. 

Normal pubescent sexual exploration should be separated from child sexual abuse and rape. Sexual abuse happens any time, a sexual act happens between a child and a grown-up, or an altogether older child. Assault or sexual assault, and especially intrusive and awful shape of sexual manhandle, happens whenever children are constrained or coerced into physical sexual activity without their express consent, regardless of the perpetrator’s age.

Sexual abuse incorporates a wide range of physical sexual behaviors, from passive improper touching or fondling all the way to forced sexual intercourse. Sexual abuse moreover may occur without any physical touch that has occurred, such as when children are forced to see pornography or to watch the sexual activity of others. 

Constraining children to participate in the making of pornography is still another form of sexual exploitation. Often, more seasoned youth or adults may coerce youth into participating in these acts by threatening them, or the individuals they care about.

Sexual assault or rape can happen between the youth of the same age at whatever point one accomplice strengths or coerces another into any shape of undesired sexual movement. These sorts of “peer” assaults are sometimes named “date rape” or “colleague rape” when the victim is forced into sexual activity by somebody, they believe such as a friend or dating partner. Colleague assault may include violence, with the victim verbally protesting the sexual act and physically attempting to fight back. 

However, associate assault victims may also fall within the ambit of rape without violence or critical protest since they are unable to say “no” for social or emotional reasons, or since they have been controlled or scared. In such cases, victims may not need to take part, but accept they cannot securely disagree or fight back. Alternatively, victims may have been medicated or injected drugs in excess to intentionally render them less able to protest.

Sexually abused or assaulted youth often (but not always) discover themselves candidly damaged or indeed traumatized by their victimization. Both short- and long-term impacts may result from such mishandle, counting strongly disgrace, lowered self-esteem, despondency, outrage, discouragement, uneasiness, and trouble shaping new adoring and sexually sound relationships. We strongly recommend that all sexually manhandled or victimized children be allowed to meet with a proficient counselor who can help them learn to cope, keep themselves secure and put their victimization into a point of view that empowers them to move forward soundly. Though not culminating, professional help can go a long way towards limiting the impacts of this harm.

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Indian Criminal Law – Critical Analysis 

Indian criminal law or criminal justice system is very much responsive and alert towards the case of sexual abuse or child rape. Indian Criminal law alarmed by a rapid increase in the rate of child rape. India is one among the countries with has the highest cases of sexual abuse and to cope with the problem of child sex or child abuse, many regulatory committees and laws have been enacted but they failed to analyze its core problem and did not succeed in controlling the rate of child rape in India. 

The Law Commission of India in its 172nd law commission report reviewed the entire regulations related to the sexual offenses just after the case of Saakshi v. Union of India, 1997. In this case, Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declare that “rape” under India’s criminal rape law (IPC, section 375) includes all forms of forcible penetration. The Supreme court decided that altering the established definition of rape under IPC section 375 would lead to confusion and ambiguity and would not be in the interest of society at large. 

Some amendments were made to the Indian Criminal law in response to the sexual offenses and changes in Indian Penal Code, 1860 through the modification in criminal law bill but yet the law present for the prevention of sexual offenses against the children is not found sufficient to address and prevent the sexual offenses against a child. 

The major concern for India is whether the present criminal law of India is sufficient to deal with the issue of Child abuse or child rape after the introduction of POCSO (The Protection of children from sexual offenses) Act, 2012. Indian law system needs more reformation and stringent punishment for the crime against the children who are below the age of 13 years. As we know that India is a country or home to 430 million children and a large mass of children face a problem of bonded labor, sex trafficking, child sexual abuse but the laws related to the sexual offenses for children is not sufficient yet and the present law is not found properly regulated by the authority. 

Laws in India which deal with Child rape and Abuse

The issue of child rape and child sexual abuse is a major concern and widespread across India and affecting the life of Children. If we look at the statistics then, half of the country’s children face some type of sexual abuse and some children get raped, 21% of them have faced several sexual waves of abuse. 

It is seen that India is at a peak in the case of child rape and sexual abuse of children and where sexuality is taboo, the communication about sexuality and sexual abuse is negligent and non- existence. 

Some of the laws which are enforceable for the cases of child rape and sexual offenses & abuse are mentioned below. 

  • Protection of Children from Sexual Offences (POCSO) Act, 2012. 
  • The Offences against children (Prevention) Bill, 2005. 

Protection of Children from Sexual Offences (POCSO) Act, 2012

POCSO (Protection of Children from Sexual Offences) Act enacted in the year 2012 which is for all irrespective of any gender and this provision is not optional but compulsory for all the victims to report about abuses which include all types of sexual offenses against the children. POCSO not only gives the power to report about the sexual offenses with the children but also gives legal safety during the judicial proceedings. POCSO lays down some rules and regulations which are mandated for everyone to follow whether it is a sovereign body or common people. A list of mandated rules laid down under the POCSO Act is mentioned below. 

  • The Police officer brings the case under notice of the Child Welfare Committee within 24 hours after a report is registered. 
  • The Police officer must be in a civil dress while recording the statement of the child victim so that child does not get informed. 
  • The recording of the statement of the child should be done in the presence of the person whom he/she trusts. 
  • The medical examination of the child for the evidence should be done only by a lady doctor in the presence of the trusted person on whom the child trusts. 
  • For the trial of the case of child rape and sexual abuse, a special court has been set up for the speedy trial and in-camera trials.

Under POCSO, it is the duty of this special court to ensure that the minor victim should not be in touch or exposed to the accused and the identity of the minor should be kept confidential. The court also ensures that minors do not repeat their statement in the court and if a child wants they can also give their testimony through video and also ensures that there is a speedy trial. If a minor wants an interpreter, translator, special educator they should be provided with the same. 

In the case of Gurucharan Singh vs. State of Haryana, 1972, A girl under the age of 16 years was forcibly taken by the accused to his fields, outside the village where he committed her rape. The court ruled that the mere absence of marks of violence on the victim is immaterial because she was under the age of 16 and more importantly that the victim cannot be considered as an accomplice to the act. 

In the case of Sheela Barse & Others vs. Union of India & Others, 1986, a girl below the age of 16 was illegally detained in jail. The Court held that the right to speedy trial prescribed under the POCSO Act is a fundamental right implicit in Article 21 of the Indian Constitution

Punishment mentioned under POCSO Act

There are different punishments mentioned under POCSO Act for the different sexual activity against the child which are discussed. 

  • In the case of Penetrative Sexual Assault, the punishment mentioned is according to Section 4 of the POCSO Act that provides punishment not less than 7 years which also may extend to imprisonment and a fine.
  • In the case of aggravated penetrative sexual assault, Section 6 of the POCSO Act lays sown the punishment which is not less than 10 years and it may also extend to rigorous life imprisonment and a fine. 
  • Non-penetrative sexual assault means there is no sexual intercourse only includes touching of the vagina, penis, anus or breast of the child, or asking the child to make him touch the private parts with the intention of sex. This type of activity is punished as per Section 10 of the POCSO Act which provides punishment for not less than 3 years which may also extend to 5 years and a fine. 
  • Sexual harassment includes sexual remarks, sexting, taunting, or asking for a sexual favor and many people can’t consider it as sexual abuse but the punishment prescribed is 3 years and a fine which is mentioned under Section 12 of the POCSO Act. 

The Offences against Children (Prevention) Bill, 2005

The Offences against Children (Prevention) Bill, 2005 covers all the aspects and areas of sexual offenses and child rape against the children. This act clearly defines the rights and remedies for the children available and many other rules and regulations which protect any child from any sexual abuse. 

It covers all the list of sexual activity against any child and sexual abuse against the child, like touching a child with the intent or feeling of sexual activity directly or indirectly or forcing any child to touch genital or showing pornography. 

The bill further defines sexual assault as penetration of the child’s vagina, urethra or anus by any body part or with the help of any object and this bill also discusses other provisions that include more rigorous punishment for abuse of trust and the person who has been found engaged earlier in sexual abuse of children. This bill overall gives a wider scope in the area of child rape and sexual abuse of children before the enactment of the POCSO Act, 2012. 

Is Stringent Punishment a better way to Control Child rape and Sexual abuse?

India is at a peak in the case of sexual offenses against the children which is a home of 430 million children. Many regulations and acts were enacted for control over child rape and sexual abuse but yet unable to control the increasing rate of sexual abuse with children. Indian government brings more stringent punishment under the POCSO Act, 2012, and the offenses against Children (Prevention) Bill, 2005. 

In both, the provisions of law the punishment prescribed is more strict and rigorous for the different sexual offenses which include, Sexual Harassment, Penetrative sexual assault, Non-Penetrative sexual assault and many other sexual offenses and for each different punishment is prescribed under the POCSO Act, 2012. 

As India is a country that is always known for its reformatory system in the Indian Criminal justice system so only capital punishment for child rape is not the only solution or the only way to curb this. Prisoners were given a chance to reform themselves into a good citizen by putting them behind the bars and giving chances to inculcate good values. 

If we look at what are the measures taken by different countries to prevent child rape and child sexual abuse. Then globally, it is seen that providing quality care and education early in life is very much progressive way to prevent or reduce child rape and child sexual abuse. Other ways that is noted down is that enhancing parenting skills to promote healthy child development, strengthen economic supports to families and public engagement and education campaign related to this child rape and child sexual abuse. 

Stringent punishment is needed for the sexual abuse against children as it is considered as a heinous crime against the future of any country and these offenses devastate the mind and health of the child and ruin the future of the country. So, the prescribed punishment is capable to reform the criminal of child sex abuse but it is not the only way to curb this. 

Suggestions to Curb Child rape and sex abuse

Child rape and child sex abuse are one of the most serious issues of many countries and a challenging difficulty for different countries. Various measures or suggestion which should be followed up for the better prevention of child rape and child sex abuse. Some more suggestions which should be followed up are mentioned below. 

  • The widespread availability of Health services for the victim of child rape and child sexual abuse. Children who faced the situation like rape and sexual abuse is psychologically disturbed and mental health totally deteriorates and need proper health service which duty is only inclined towards the victims of child rape and sexual abuse. 
  • Three approaches should be adopted by the government for preventing or reducing child rape and sexual abuse i.e. Explore, Evaluate and Strengthen. The government or any particular committee should first explore what is the reason behind this all then evaluate what is the rate and which area or zone having more cases of child rape and child sexual abuse and finally strengthen all the measures to curb this problem or prevent child rape and abuse.
  • Creating awareness among the people to not accept the situation like child rape and child sexual abuse. Awareness is being spread in order to make people come out and raise their voices against child sex abuse. 
  • Re-evaluation and strengthening of policy and program on child sex abuse and child rape for the better conducting and analyzing these types of cases. By re-evaluating the existing policy and program for the safety of children from sexual abuse and rape, the loopholes present can be removed and better functioning or implementation of programs and policies can be made. 

Conclusion

Child Rape and Child sexual abuse is the major concern for India and till now India has proved to be ineffective in dealing with the problem of Child rape and abuse. Provisions like POCSO Act, 2012 and The Offences against Children (Protection) Bill were enacted but due to the less regulation and ineffective regulatory body it is unable to bring down the rate of the Child rape and child sexual abuse. 

So, it’s very important that a proper regulatory body should be established just like the special court established under the POCSO Act, 2012. India is a reformatory country so the major focus should be on reformation of the society so that cases of Child sex and sexual offences against the children should be reduced.


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