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Written By - Sejal Kaul
Introduction
Child Sexual Abuse (CSA) is defined by the World Health Organization (WHO), as the participation of a child in sexual activity that he or she does not understand completely, does not give informed consent, or is unable to consent for, or does not develop or give consent, and does not contravene society's laws or social tabus. [1] A range of sexual acts, such as fondling, inviting or inappropriately touching the boy, intercourse, exhibitionism, involving a child in prostitution or porn, or cyber-predators luring online children, is included in CSA. [2] CSA is a major global concern. CSA is a major issue. In a new systemic study of 55 studies in 24 countries, studies in the concept and calculation of CSA observed a lot of variation and concluded that CSA rates varied between 8 and 31 per cent for females and 3 to 17 per cent for males.[3]
Child Sexual Abuse in India
In the history of CSA, the Indian civic debate and the criminal justice system have been widely neglected as a secret issue. India is the world's second-most densely populated nation and the recent census shows that it is home to 17% of the world's population. Up to 19% of the world's children live in India, which makes up 42% of the total population of India, and about 50% of those need treatment and security. In 1992, India pledged to protect its children from any kind of sexual harassment and sex trafficking, pledged its support to the United Nations Convention on the Rights of the Child. Convention [4] provides for the state machinery to prohibit children from being forced into any illegal sexual activity.
The first large-scale government-funded research report to determine how often and what kind of child violence is taking place in India contributed to increasing concerns about the use of female infanticide, child trafficking, and institutional harassment by girls. An alarming disclosure found that more than 53% of Indian children are sexually abused/assaulted by the government commissioned by a survey. Most such incidents have been carried out by someone knowledgeable or truthful and accountable, not shockingly, the violence has not been reported to someone by most children. Further, there is regional and rural, urban variance in the rates and extent of CSA in the area.
Girls are more susceptible to sexual harassment, while boys get too much reporting and are more stigmatised in society. Sexual violence and misuse are closely linked to poverty, but they happen in families across social and religious continuum. Factors facilitating CSA, such as poverty, overcrowding, extended family life, excess of street children and lack of family leisure are by no means the exclusivity of India. Certainly, given Indian population density and size, their impact may be exaggerated or intensified. Thus, a complex mix of individual, ecological and situational factors that are said to facilitate CSA might account for its prevalence in the Indian context.
The systematic inability of the system of criminal justice to correct their complaints and the institutional ostracism associated with such violence are seriously undermining sexually abusive girls. Police have been identified with just 3% of CSA crimes. In light of the embarrassment and related sociocultural stigma, the CSA is not surprisingly seriously underreported, especially when the violence is in the family context. This is not a special phenomenon in India but a similar phenomenon in other Asian countries, where the perspective of a woman is neglected to shield the family from the disgraces of sexual harassment.
The legal response to Child Sexual Abuse
CSA was not officially recognised in India until recently as a criminal offence. Rape was the most significant, if not the only, sexual offence against children recognised in India by statute. A series of inappropriate conducts such as child sexual abuse, harassment and trafficking for pornography was never officially sanctioned in the absence of substantive laws. The Ministry of Women and Child Development of Non-Governmental Organizations and the central government has been instrumental in helping crack conspiracy by silence and creating a significant political and cultural momentum in addressing this problem. This lead to greater activism in the media and national debate on child welfare issues. A recent law called "Protection of Children from Sexual Offenses Act 2012," driven by the campaign led by the Ministry of Women and Children's Development (POCSO Act).
Distinctive features of the POCSO Act
The POSCO Act addresses crimes such as child abuse, sexual assaults, sexual exploitation, and child pornography (under the age of 18). The statute requires the establishment of special courts for prompt trials in cases of sexual abuse of children. The passage of POCSO has certainly been a significant milestone in the protection of the rights of children. To protect children from violence, the Letter and the Spirit of the Law defines a child as anyone below the age of 18 years.
The POSCO Act allows for severe penalties based on the seriousness of the crime. The penalties range from easy to stringent terms of imprisonment. Fine is also given, which the Court will rule. In the case of an individual in a role of truth or child authority such as a special services employee, a police officer, a civil servant, etc., an offence is treated as aggravated.
POCSO Law does not use the word to resort to penile penetration nor does it restrict penetrating sex to penile penetration. It instead extends to include oral sex, and to include the injection of any substance into the throat, vagina or anus in addition to penile penetration, the offence called penetrant sexual assault under the Act[5].
In the case of State vs Pankaj Choudhary[6], the Hon’ble Delhi High Court in 2011 prosecuted the accused only for ‘outraging the modesty of a woman for digital penetration of the anus and vagina of a 5-year-old child since digital penetration was not recognised as an offence under the India Penal Code. The decision was delivered before the enactment of the POSCO Act. However the addition of penetrative assault under the POSCO, 2012 has increased the cover of protection for children.
The POSCO Act also criminalises several behaviours without contact as sexual assaults. [7] Also, the offences perpetrated in a wide variety of circumstances or contexts, including penetrating and not penetrating sexual harassment, on penetrating and non-penetrating crimes of a suspect of sexual assault, are being taken more seriously and attracting more stringent sanctions [8]. These include sexual attacks by a person in power concerning a child committed by persons in a household shared with the child in conditions like gang rape, serious physical harm, firearms or corrosive menace, community-based or sectarian violence, attacks on children under the age of 12 years or people in physical or mental circumstances. The concept is rather broad and encompasses a variety of situations. These provisions have been made keeping in view the greater vulnerability and innocence of children.
The POCSO Act is also forward-looking in many salutations, in that the scope of sexual assault covers acts of child abuse by way of physical or sexual cyberbullying, whether repeatedly or permanently follows, monitored or contacted a child directly, electronically or otherwise. [9] The following: [9] However, the interpretation of what may constitute or to after or touching a child for sexual purposes (where the legislation states that sexual intent is a to Fact, is unknown in the Law and is thus technically contestable. The Law provides for an exemplary interpretation of the situation. The act further penalises any offence specified in the Act or seeks to commit it. [10]
The establishment of a Special Court under the Act plays an essential role in the interpretation of the law and facts. The POSCO Act sets down the provisions for special courts,[11] under which hearings should be held for the victim's submission either through video-link or behind curtains or screens, which is meant not just to minimise trauma but also to safeguard the children's identities. The Common Code[12] allows for a more respectful proceeding. Which includes child-friendly reporting, evidence-recording, investigating and investigating crimes. If a false complaint is made against a child, punishment is higher (one year).
Without the consent of the Special Court, the media are prevented from communicating the name of the boy. The penalty could be six months or one year for breaking this clause by the media. To be tested quickly, the POSCO law sets out the proof that an infant must be registered within 30 days. The Special Court shall also conclude the proceedings, as far as possible, by a term of one year. The relief and recovery of the children will be ensured by urgent arrangements, including the admission of the child to a shelter or closest hospital within 24 horses until a case is lodged with the Special Youth Police Unit (SJPU) or the local police. Besides, within 24 hours from the date of filing of the claim and the long-term recovery of the infant, the SJPU or the local police must refer the case to the child welfare committee.
The POSCO Law imposes on Central and State governments the obligation to raise the general population, children, their parents and guardians knowledge of the provisions of this Law, including television, radio and print media, at a daily interval. Designated authority for monitoring the enforcement of the Act has been appointed by the National Commission for Child Rights Protection (NCPCR) and the State Commission for Child Rights Protection (SCPCRs).
On 10 July 2019, by recommending modification of the Act, the Union Cabinet strengthened the terms of the POSCO Law. The report is not available at all. In cases of natural disasters and in other circumstances where kids are, anyway, given any hormone or any other chemical agent for penetrative sexual abuse to achieve sexual maturity, the proposed reforms provide for the immunity of children from sexual offences. The noteworthy point is the approval of a child abuser for aggravating penetrative sexual assaults on the child with the death penalty.
Major Impediments in implementation of POSCO Act
In its full execution, the Act met unexpected obstacles. It is pathetic in the country and its adoption rate is poor. The rate of conviction of 4%, acquitting 6% and pen denting almost 90%, according to the Bureau of national crime records, is growing steadily under POSCO law, including vicious gang rapping. Below are some of the notable obstacles in implementing the Act:
a) Administrative pitfalls
According to the terms of the POSCO Act[13], the State Governments shall appoint a Court as Special Court, in consultation with the Chief Justice of the High Court, to prosecute offences for a quick trial. However, the POSCO Act states further that if the Court of Sessions has, per the Commissions for Protection of Child Rights Act, been referred to it as a children's courts, or if another Special Court was appointed for the same by some other legislation, then it may still be called a Special Court following the POSCO Act. Notwithstanding the constitutional provision to the exclusive POCSO court of each district, the guidelines were continually overlooked.
The main obstacle in the successful application of the POSCO Act is not the establishment of special courts in all districts in the country to deal with child sexual abuse. The establishment of such tribunals was a core mandate of the Act without which the disposition and pendency of the cases lodged under the Act were significantly delayed.
The apathetic approach of the bureaucracy of the State Government is expressed in the fact that they are not formulating a manual relating to law or complying with any formalities for its enforcement before and until the Supreme Court intervenes.
b) Lack of expertise to handle the cases
To exacerbate this reality, the judges assigned to deal with CSA matters are not entitled to the expertise of the state government because they neither have additional training nor review seriously the law relating to these cases. As a result, they see cases as an extra burden. Thus, as envisaged in the Act, CSA cases are not properly and adequately dealt with.
The Special Court (actually a court of sessions) judgement of the 22nd December 2016 in Thane, Maharashtra, in a case recorded per the POSCO Act, granted a notice of perjury to a 16-year-old minor child. The girl was supposedly rapid. This move reflects the spirit and aims of the Act which, at all stages of the judicial process, provides a child-friendly environment and gives primary importance to the concept of best child interest. More specifically, the Act would not prosecute children for presenting misleading facts. [14] The report was released.
In an incorrect move, the Special Court relied in this case on the POCSO proposal which permitted a child over the age of 16 to file a false claim for appropriate corrective action with the Juvenile Justice Board. by her dad. Though she testified in the exam against her father, she became violent during the last stage of the defence counsel's cross-examination. The trial strategy on part of the defence was similar to the rape trials involving adult women victims, where attempts are made to devalue the credibility of the victim by questioning her sexual history and moral character. This provision was however omitted when the Rajya Sabha bill was passed and is not included in the legislation as it exists. In this situation, the verdict was unfortunately delivered in line with the POCSO Bill and contributed to this mistaken conclusion, due to the negligence of the judge.
However, the Rajya Sabha bill was not included in the law as it is. This amendment was not adopted. Unfortunately, in this case, the judgement was handed down by the POC SO Bill and resulted because of the incompetence of the judge to this erroneous inference.
The educational, judiciary and law enforcement authorities also have an immediate need to learn about the Act. Sensibilities and readiness for all the actors were one of the main factors in the future of our country in supplying children with comprehensive treatment and justice.
c) Other Challenges
The consequences of a trial can be more important for victims who have been sexually assaulted than the action of punishment in a possible sentence. This is also important if the abuser is a parent or confirmed witness, as is the case with 95% of the exploited children. This is known to the survivor. When the abuser is a family member, that means invading the child's household, breaking his or her family and potentially placing his or herself in a shelter that may be unwelcome to the child even if the abuser is in prison. These issues often avoid disclosing harassment by adult parents that a child may have revealed.
Besides, police and other authorities are not sufficiently sensitive, children are tested several times and there is a dearth of trained advisers who provide social care to the child outside of urban spaces. On the county level, the child comment is often made inside the police department, or police go to interview the child in uniform, which not only intimidates the helpless child but can even reveal the child identification in a district.
Conclusion:
Child sexual abuse is an Indian company flag and, therefore, the Act was launched in 2012. However, without the dedicated and organised actions of the implementing authorities, no legislation can be enforced successfully and efficiently. A multidimensional approach is essential and the task for implementing the Act in letter and spirit, and to respond in these situations, with urgency, sensitivity and sympathy, lies with the governments of the state, police, judicial and medical departments. Speedy proceedings are inevitable because of the judges, their assistants, prosecutors, police and defence coordinate, and struggle to overcome the idea of special courts. Similarly, doctors also need to be trained to understand the intricacies and help in a proper scientific collection of various evidence while examining the child victim of sexual abuse.
The number of incidents identified in comparison to the previous years has increased, thanks to the exposure that can be gained from different services for training and awareness along with NGOs and police friends. All investigations and trials in courts must be increased to raise the conviction rate so that the victim is not pressured to become violent. The litigation could be finalised in POCSO cases in one year. However, a large number of cases are already pending in the courts. The whole procedure must also be more child-friendly.
Footnotes:
[1] World Health Organisation. Report of the consultation on child abuse prevention (WHO/HSC/PVI/99.1).
Geneva(Switzerland): World Health Organisation, 1999.
[2] 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
[3] Barth J, Bermetz L, Heim E, Trelle S, Tonia T. The current prevalence of child sexual abuse worldwide: a
systematic review and meta-analysis. International Journal of Public Health. 2013;58(3):469“83
[4] Article 34 (a) of the United Nations Convention on the Rights of the Child, 1990
[5] Section 3 of the POSCO,2012.
[6] Delhi High Court Order dated August 17, 2011, in Crl.Appeal No813/2011.
[7] Section 7 of the POSCO, 2012.
[8] Sections 5 and 9 of the POSCO, 2012.
[9] Section 11 (iv) of the POSCO, 2012.
[10] Section 16 of the POSCO, 2012.
[11] Section 35 of the POSCO, 2012.
[12] Section 9 of the POSCO, 2012.
[13] Section 28 (1) of the POSCO, 2012.
[14] Section 22 (2) of the POSCO, 2012.