When the Human in Humanity Fades: Child Sexual Abuse



Child Sexual Abuse, often known as child molestation, is a pressing Human Rights and public health issue.

The World Health Organization (WHO) defines Child Sexual Abuse (hereinafter referred to as “CSA”) as “the involvement of a child in sexual activity, that he or she does not fully comprehend, and 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…” Fondling, inviting a kid to touch or be touched sexually, intercourse, exhibitionism, using a child in prostitution or pornography, or online child luring by cyber-predators are all examples of CSA. It can happen anywhere - at home, school, or work (places where child labour is common).


The child suffers horrendous consequences as a result of CSA. It hinders their emotional/psychological growth and development. Further, it relates to unhealthy health behaviours and poor social, mental, and physical consequences across their lives. Like, relationship difficulties (e.g., increased risk of domestic violence), violent behaviours, and an increased chance of CSA perpetration as adults. It can cause depression, post-traumatic stress disorder, anxiety, and physical injury to the child, among other issues. Sexual abuse by a family member is a type of incest that can cause immense, grim, and long-term psychological trauma.


CSA in India

Concerns about female infanticide, child rapes, and institutional child abuse prompted the commissioning of the first large-scale government-sponsored research study to assess the extent and nature of child abuse.


The Honorable Supreme Court in Karnal Singh Vs. State of Madhya Pradesh [1] has held that the delay in lodging complaints in such sexual offences in India does not conclusively indicate that the complaint was false. The delay in lodging the First Information Report by itself is not fatal to the prosecution. Also, the defence has to show the prejudice caused to them by the delay.


The legal response to CSA

Until 2012, the only sexual offences against children recognised by the law were covered under three sections of the Indian Penal Code (IPC). They were not specific to children.


Increased activism around child protection issues in the media and public discourse might partly account for the Government of India passing a special law called the Protection of Children from Sexual Offences ( hereafter POCSO) 2012. This Act criminalises sexual assault, sexual harassment, and pornography involving a child (under 18 years of age) and mandates the setting up of Special Courts to expedite trials of these offences.


POCSO 2012 does not commonly use the term rape. It does not confine penetrative sex to penile penetration. Instead, it broadens the offence termed penetrative sexual assault to include oral sex and the insertion of any object into the anus, mouth, or vagina. This is in addition to penile penetrative sex.

In the case of State vs Pankaj Choudhary 2011 [2], the accused could only be prosecuted for outraging the modesty of a woman for digital penetration of the anus and vagina of a 5-year-old child. The prosecution was unsuccessful in proving rape as the High Court ruled that digital penetration was not an offence under the India Penal Code.


POCSO is also forward-thinking in many aspects. The definition of sexual harassment includes repeatedly or constantly following, watching, or contacting a child either directly, electronically, or through other means [Section 11(iv)]—thus, covering incidents of child harassment via sexting or sexual cyberbullying.


Age of consent

All sexual acts described in POCSO are considered criminal offences if they involve a victim under 18 years. This is true regardless of consent or the age of the perpetrator.


The Act does not grant children any sexual autonomy, and as a result, they may be held liable for sexual acts committed in violation of the law. POCSO invariably criminalises a juvenile CSA perpetrator to be dealt with by the Juvenile Justice (Care and Protection of Children) Act, 2000.


Obligatory reporting

POCSO (Section 19) requires mandatory reporting of CSA by all citizens, especially those working with children and young people in the education, social, religious, and health sectors. Failure to do so carries legal penalties of up to 6 months in prison and/or fines intended to encourage compliance with the law.


CSA leads to a negative impact on a child's normal development and maturation. It has an impact on neurobiological systems as well as endocrinological profiles. The trauma experienced during the abuse has long-term consequences. Survivors of the CSA are more likely to develop psychiatric disorders such as personality disorders. Furthermore, the most common long-term consequences for adult survivors include becoming perpetrators and an increased risk of relational violence. Children under 18 account for approximately 37% of India's population, with a large proportion of them lacking basic nutrition, education, and access to health services. Around 53% of Indian children reported various types of abuse, including being forced to participate in nude photography, inappropriate touching, and sexual abuse.


During COVID-19

Every other child in India has been sexually abused before the age of 18, most often by family members or people they know. This has only worsened as a result of the pandemic-induced lockdown. CSA can be devastating during lockdown because the isolation has further limited support networks, making it even more difficult for victims to seek help or flee. When data shows that 93% of perpetrators are relatives or known individuals, it reveals the potential magnitude of the victims' helplessness and mental health consequences. Another concerning fact is that the homeless, rag pickers, and those who beg on the streets are among the most vulnerable people. Thousands are exploited in exchange for a meal or a daily wage that is barely enough to cover their basic needs. A miserable aspect of the situation, as reported by the Childline India Foundation, is the regular receipt of 'silent calls' in helplines from children who do not know 'what/how to express.'


To combat this more explicit child rights crisis, UNICEF has recommended and emphasised the importance of properly spreading information and services available for protecting children from violence, abuse, and neglect during COVID-19 via text messages, educational platforms, and social media. Tele-counselling services, similar to online classrooms, are also recommended. It is recommended that social and community workers be involved in ensuring child protection services in fragile circumstances and humanitarian crises. UNICEF has also advised child and family courts, and juvenile justice boards to continue operating as a vital service, hold emergency hearings and enforce court orders for the care and protection of children who are at immediate risk of neglect or abuse while taking appropriate social distancing measures.


Conclusion

POCSO 2012 has undoubtedly made a critical contribution to addressing the CSA problem in India. It has identified and criminalised a variety of inappropriate sexual behaviours that jeopardise children. The number of reported cases is rapidly increasing, further indicating that the law has made a significant contribution to educating the public, sensitising the criminal justice system, and making CSA reporting mandatory. The Madras High Court recently expressed its pain over the increasing cases where children are being assaulted by persons known to them, despite stringent laws in place (Mookan & Murugan v. State) [3]. The law has some distinctive features and is extremely comprehensive. However, three major issues identified may pose implementation challenges in India. The issues are- inflexibility regarding the age of consent for sex under 18 years of, mandatory reporting obligations, and the exact nature of age determination.







End Notes-

  1. AIR 1995 Supreme Court 2472

  2. State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary and Ors. CA No.2299/2009, CA No.2298/2009

  3. S.C.No.108 of 2013


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