Sexual Offences on Children—Principles of Child Jurisprudence and NCPCR

Abstract

The issue of child sexual violence violates each one of us and our sensibilities. Its prevalence in its myriad forms interrogates us, both at a personal level and at a societal level. It questions existing social norms and values, our ethical and moral fiber, and state (in)action. It pushes us out of our comfort zone, to experience a fugue of emotions of helplessness, indignation, sense of urgency or wanting to act. What it does to children is unfathomable! It compels one to reckon with what the child is at the present, her “being” and dignity and take cognizance of her “becoming” a person with agency and confidence in future. Justice for children cannot be dealt with in a fragmented manner but is seen in totality of her life from being a child to becoming an adult.

From the growing number of cases that are registered year after year on penetrative sexual assault, sexual assault and harassment and so on after the enactment of the Protection of Children from Sexual Offences Act, 2012 it is evident that there is a break in silence. From a situation when we did not even have the vocabulary to engage with child sexual abuse through public discourse and debates the Act has given us the language to legitimately have a discourse on the matter. It has given us a tool to build awareness and engage with existing norms on sexuality, violence and bodily integrity.

The prevalence of child sexual abuse was acknowledged by the government when the study titled “Study on Child Abuse: India 2007 ¹ ” revealed the extent and magnitude of the problem. It was found in 13 sample states that two out of every three children were physically abused; over 50% of children were subject to one or the other form of physical abuse; out of those children, 88.6% were physically abused by parents. 65% of school-going children reported facing corporal punishment, that is, two out of three children were victims of corporal punishment. Alarmingly, 53% of children faced one or more forms of sexual abuse of whom 22% of children faced severe forms of sexual abuse and 51% other forms of sexual abuse and 6% reported being sexually assaulted. Significantly persons known to the child or in a position of trust and responsibility were the abusers in 50% of cases and most children did not report the matter to anyone. It was also seen that every second child reported facing emotional abuse. Even as there is an increase in the crimes under the Act, there is growing anecdotal evidence that incidents of child abuse have also risen exponentially since the COVID-19 pandemic, with new and insidious forms of cybercrime rearing their ugly heads.

NCPCR was established just about this time in the year 2007. ² Almost the first issue that came up was that of the molestation of a two-year-old on a construction site in Jharkhand. The poor family incurred over Rs. 80,000 for expenses which was met by the Tata Hospital and a year later the child needed another surgery and the Hospital waived all medical charges on the recommendation of NCPCR. A four-year-old boy was repeatedly abused by the bus driver and conductor on his way back home. NCPCR took Suo moto cognizance of this case but the parents dithered from making a police complaint. On the other hand, an eight-year-old had her uterus removed for being raped. The girl insisted that the police take action against him and wanted justice to be done to her even as she was willing to identify the offender who was absconding. A 13-year-old girl was gang raped by Railway Police Force while she had just got off the train. Practice showed how parents did not want to pursue the case under the impact of the socio-cultural environment and fear about consequences of litigation on the child and family. On the other hand, when a mother took courage to make a complaint about her six-year-old child had been repeatedly sexually assaulted by her father she expressed her anguish that there was no response at all from the system. Neither the police nor the hospital would take her complaint seriously. She asked, “should I have turned a blind eye to her (daughters) woes, her suffering, her pain and waited for a bigger disaster (rape) to happen so that I would have much stronger case? As a mother what would you have done in my position?”

The Commission also received several complaints of sexual abuse of children in childcare institutions, schools, hostels, orphanages, by persons in positions of trust causing aggravated sexual offences. For instance sexual abuse of small children by the Chowkidar of “Rajkiya Bal Grih,” Shivkuti, Allahabad run by the Government of Uttar Pradesh; sexual abuse of girl children who were living in “Apna Ghar,” run by Bharat Vikas Sangh registered by the Government of Haryana under the Juvenile Justice (Care and Protection of Children) Act; sexual abuse of 76 minor girls and six boys at Drone Foundation, Maruti, Gurgaon; sodomy of a 14-year boy by an older boy in the Phulwari Children Home for Boys (CHB-I), run by the Government of NCT of Delhi at Alipur; case of rape and sexual abuse of minor girls in an Orphanage called “Suparna Ka Angan”; rape of 13-year-old a tribal school girl by the headmaster of an ashram girls hostel; in Koraput District of Orissa state who threatened her not to disclose the incident to anybody. She went back home and refused to go to school till they forced her to speak out. A month later an FIR was registered, a medical examination was done which confirmed that the girl was raped. The local politicians have threatened the parents and trying to offer money to bring a so-called “compromise” in the case. The family along with the girl lives in fear.

NCPCR’s investigation and follow-up action resulted in filing a charge sheet against the perpetrators of crime, suspension of all concerned staff, arrests of accused, and referring the case to CBI for further inquiry and so on. It issued directions to the District authorities to get children medically examined without causing further harm to them, ensure formal schooling, pressured the Child Welfare Committees to get the Social Investigation Reports and Home Investigation Report prepared for each child along with a proper decision on restoration and providing a customized individual care plan to each child on a long-term basis. Each one of the complaints received challenged the Commission’s capacities to act with a sense of urgency and render justice; Framing of POCSO and NCPCR role- Ministry of Women and Child Development circulated the draft “Offences against Children Bill” among stakeholders in 2009. 2010 Ministry asked NCPCR to draft a law. Further, it is felt that in order not to further victimize the prosecutrix, it is important to make provisions for examining the circumstances of the alleged offence rather than establish whether there has been consent to the said act. It was evident that violence against children was all pervasive requiring a strong legislative framework to criminalize the offence.

Subsequent to the study on abuse of children the Ministry of Law together with the Ministry of Women and Child drafted an omnibus bill on all forms of violence on children that included child labor, child trafficking, sexual offences etc. ³ NCPCR took a contrary view and emphasized on the need to have an exclusive law to protect children from sexual offences. NCPR held the view that although sexual violence like all forms of violence was painful and injurious it was different from other forms of physical and emotional violence. The victim child of rape, sexual assault and harassment was so vulnerable that she/he seldom disclosed the abuse. Nor did she have the vocabulary to do so. Her fear got compounded under the weight of power and domination exercised by the offender who is often not a stranger and is an older person, and a member of family, neighborhood or in a childcare institution. She is also conscious about the social stigma and morality attached to sexual abuse. It was felt that the relevant sections of IPC, CrPC, Evidence Act and other laws could be amended concurrently to ensure that children were not victimized further and justice was rendered in a time-bound manner. ⁴

It is in this context that in 2010 the Ministry of Woman and Child Development on advice of the National Advisory Committee (NAC) authorized the NCPCR to draft the Bill on protection of children from sexual offences. It held a series of consultations with eminent experts from the judiciary and legal system, child rights activists, professionals providing psycho-social support to the victim child, and so on. The Commission emphasized taking the legal process to a logical conclusion by punishing the offender if found guilty and at the same time that the process of rendering justice must always have the centrality of the child victim enabling her to overcome the trauma with dignity. Towards this end, it flagged that the criminal law in child jurisprudence should include restoration, rehabilitation and compensation to the child victim. Further to enable justice for children, child protection systems and involvement of multiple institutions and services of child protection-such as the Child Welfare Committee (CWC), hospitals and medical institutions, department of police and judiciary and so on have to be incorporated as a matter of right. The ministry incorporated several provisions from the NCPCR’s draft bill to enact the Protection of Children from Sexual Offences Act (2012) (POCSO Act).

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

It must be acknowledged that given its limitations the POCSO Act is a significant step forward that enables a break out of silence, gives agency to the child to confront a larger social and cultural environment to express her pain, gives access to a system of justice that assures the child her right to live with dignity and seek justice in a world of adults.

Some significant features of the Act:

The term “child” is defined in Section 2(d) of the POCSO Act to mean “a person below the age of eighteen years.” It is gender neutral, that is, it recognizes that the victims and the perpetrators of the offence can be male, female or third gender.

It makes a comprehensive list of sexual offences to include-penetrative sexual assault, sexual assault-touch with sexual intent; sexual harassment—making gestures, exhibiting body parts, showing pornography, watches, stalks, and abetment-criminal offence; The Act recognizes that sexual abuse may involve or may not involve bodily contact.

It provides for maintenance of confidentiality of the child and child-friendly processes through all its stages from that of registering a complaint; medical examination; investigation and recording statement of the child by the police and magistrate; process of cross-examination; protecting confidentiality of the child; assistance to the child through the process of law, speedy trial, prevention of re-victimization rehabilitation and so on. The essential principles of child jurisprudence have been incorporated into the law. It seeks to ensure that at each stage of delivery of justice, those involved must be aware of the re-victimization, mental health and trauma that the child undergoes due to multiple interventions (The child is to be prepared for each of the phases of interventions and not be subject to re-victimization, greater traumatization and loss of dignity).

Some Gaps in POCSO Act

POCSO Act deals with only four offences along with aggravated forms of the first two. These are Penetrative sexual assault, sexual assault, sexual harassment and pornographic offences. While this approach sounds simple and clear in the statute book, it was felt by the Commission that when it came to investigation, trial and punishment many serious problems could arise. NCPCR proposed to have more specific labelling of each offence to avoid bringing a wide range of offences under the broad band of the first three offences mentioned above which was as follows.

• Child rape,

• Unlawful anal sex,

• Unlawful oral sex,

• Unlawful sexual penetration of bodily orifices,

• Making a child engage in unlawful penetrative sexual acts

• Unlawful masturbation

• Child molestation

• Unlawfully stripping a child

• Unlawfully stripping and parading a child

• Child pornography

• Blackmailing for a sexual act

• Child sexual harassment

• Stalking

Since the law was to be dealt with by police and lawyers, NCPCR felt that using generic terms, such as, “penetrative sexual assault” could cause confusion both for the investigation agencies and the courts. Instead, it was essential to have fair labelling of offences as follows as it would help the State to prosecute an offender for the particular offence committed and enhance successful prosecution accordingly:

Further, NCPCR argued that there was a need to shift from focus only on peno-vaginal penetration to a gender and sexuality minorities neutral description of penetration (to any extent) of any orifice with any genital organ or object in defining rape. The descriptions suggested by the Commission were regarded as “unduly offensive” and obscene and thus the term “penetrative sexual assault” was retained in the POCSO Act (True some offences sound obscene but very crude practices that prevail can be outlawed more effectively if sexual offences are spelt out clearly).

Child-friendly jurisprudence is also being sensitive to adolescence as an age of exploration and engaging in their sexuality and that it is the most natural thing to happen. Falling in love as being a normal aspect of adolescence. Therefore, NCPCR proposed decriminalization of consensual penetrative sexual acts between persons above 14 years and of the same age within three years of each other and specified grounds under which a sexual act with a child between 16 and 18 years would be unlawful.

The POCSO Act, however, did not carve out any such exception to protect adolescents in close-in-age consensual non-exploitative relationships from prosecution. Based on the assumption that consensual expressions of sexuality among adolescents constitute abuse and can be deterred only through punishment the age of consent for sexual intercourse as well as other sexual activity is 18 years under the Act. In a way, it criminalized adolescent sexuality. In practice, this has resulted in punishing both boys and girls.

Unfortunately, criminalization of adolescent sexual activity is the most active part of POCSO implementation. According to a study, “the result is that a law aimed at addressing child sexual abuse, is instead being used against adolescents, especially to curtail the sexual expressions of adolescent girls to safeguard family honor. An analysis revealed that 80.2% of the complainants in “romantic” cases were parents and relatives of adolescent girls who registered a case after she eloped or her pregnancy was discovered”. Pointing to the possibility of further misuse of the POCSO Act, it showed that in 21.8% of romantic cases, the girls disputed the claim by their families that they were minors. On the contrary, the protection of children subject to sexual offence is minimally visible.

With a view to address the silence surrounding child sexual abuse, the POCSO Act made it mandatory on all persons—psychiatrists, counsellors, doctors, hostel wardens, and school teachers—to report cases of child sexual abuse and suspected child sexual abuse to the local police or Special Juvenile Police Unit. The assumption in the POCSO Act is that mandatory reporting of sexual offences against children to the police is in the best interest of all child victims. It does not specify situations in which a report should be filed, the time frame within which it should be filed, or the nature of the apprehension. It does not envisage the implications of reporting to the police on children’s health, education, autonomy, safety, and well-being, raising an ethical dilemma amongst professionals as it is a violation of confidentiality, privacy and integrity and comes in the way of protecting the best interests of the children.

Keeping in view the low conviction rate of sexual offences against children, a presumption has been provided in the POCSO Act that the accused in case of sexual assault has committed the offence unless proved contrary. Commission was of the view that calling upon the accused to prove the negative (shifting burden of proof under section 29) under existing circumstances may not be advisable given the fact that the classification of offences, age of victims, procedural laws etc. were still in a very formative and unclear stage.

Conclusion

The first principle on which justice for children who are victims of sexual assault and violence rests is for all people in sectors that deal with children to believe that Child Sexual Abuse exists; that it is real and traumatic. While at the same time, the child’s abuse must not be constructed as the single most important event in his or her life (Prof. Shekhar Seshadri).

The process of justice to child victim necessitates the coming together of swift and coordinated action of all functionaries and departments—police, doctors, counsellors, CWC, support persons, lawyers, magistrates, special public prosecutors and so on. No coordination among them can be enabled through designing of SOPs alone. In a way, coordination happens while addressing each specific case of sexual assault in all the seriousness it deserves. Coordination becomes inevitable when there is a commitment to make it easy for the child to get justice. Coordination is integral to the process of rendering justice to a child victim.

There are several factors, which are systemic that still come in the way of rendering justice. There are challenges in getting evidence, recording statements, conducting medical examinations, getting timely forensic reports etc. There are also issues of inadequacy in staff, at all levels in all departments, in facilities to carry out fair and timely investigation, services of counselling and other assistance as per law, video conferencing, designation of Special Courts etc. All such factors are essentially unjust for the concerned child. Indeed, the functionaries cannot be overwhelmed by systemic gaps leading to inaction or indifferent action.

All those who are accountable for implementation of the POCSO Act and are working against odds must gain strength to overcome these barriers, constantly reminding themselves that for the child victim who faces enormous challenges, they are her only ray of hope. The child’s own courage and inner strength should give them power to act in a manner that the child is given back her lost sense of security and her/his dignity is restored. This would go a long way in profound improvement of the quality and reliability of the statements, evidence and the entire process of rendering justice. In doing so, new meanings to child jurisprudence would be derived and, in the process, systemic challenges too would be hopefully transformed.

Indeed, it would result in children being embedded in a safe environment, with the warmth of a family and a caring society that takes pride in the well-being of its children, and a State that fulfil its obligations in ensuring that all entitlements are guaranteed as a matter of children’s rights. These rights are guaranteed under Article 39 of the Constitution of India which directs the State’s policy towards securing health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength (39e); and where children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material (39 f).

It is evident that since the enactment of POCSO Act, there has been a break in silence on the issue of sexual offences in India. From a situation when the vocabulary to engage with child sexual abuse through public discourse and debates was absent the POCSO Act has given a language to legitimately have a discourse on the matter. It gave a tool to build awareness and engage with existing norms on sexuality, violence and bodily integrity.