Introduction
In January 2010, a two judge bench of the Supreme Court, comprising Justices Dalveer Bhandari and A.K. Patnaik, in response to a PIL brought by several NGOs, asked the government to take firm steps to curb sex tourism in the country and register cases of rape against those pushing children into prostitution or having sex with them. The Court said that it was shocking that 70% of the sex workers in the country were children and wanted the government to come out with foolproof measures to curb child prostitution, child trafficking and sex tourism. “Just taking them out of the brothel and putting them on the streets is not going to solve the problem. The efforts will bear fruits only after they are properly rehabilitated which is their right (children) under Article 21 (right to liberty),” the apex court said.
The newspapers nowadays are full of reports of children being raped or sodomized. Whether it’s the Kavdas orphanage case, or the rape and murder of young girls in Kurla in Mumbai, or the Anchorage matter, or the case of Ruchira Girhotra – the 14 year old schoolgirl who committed suicide after she and her family were targeted by her influential abuser, IG Police (Haryana) S.P.S. Rathore, or the case of the 9 year old girl who was raped by her 26 year old neighbour in whose custody her father left her, the cases are heart-wrenching. What is worse is that often the perpetrators of such offences are either acquitted or get away with nothing more than a slap on the wrist or a minimum jail sentence, convicted as they often are of – in the case of the rape of young girls, ‘outraging the modesty of a woman’ under Sec 354, IPC or ‘attempt to commit any of the offences punishable with imprisonment’ under Sec 511, IPC, but not for the actual offence that they have committed.
In India, we unfortunately do not have an effective system to counsel victims or separate them from the harshness of having to face their attackers, so while some of them turn hostile, others are afraid when forced to confront their attackers, some are unable to recount the incident(s) of abuse, while others may be coerced, threatened, or emotionally exploited in order to have them retract their statements. This unfortunately often results in the acquittal of the abuser even in situations when the law presumes their guilt.
‘Uttar Pradesh has achieved the dubious distinction of reporting the maximum number of child sexual abuse and rape cases, and the national capital comes a close second. The country's largest state in terms of population has reported 61 child sex abuse cases and 900 cases of rape of children, with Delhi coming next with 52 child sexual abuse and 301 rape cases, according to the National Commission for Protection of Child Rights (NCPCR).’
Child Sexual Abuse
Child Sexual Abuse (CSA) is a terrible crime, and takes various forms, such as – pornography, molestation, rape, incest, trafficking, prostitution, and child marriage, among others. And in a country like India where a child is mostly invisible, with no identity, the question of creating and implementing laws to protect children from offences that are sexual in nature takes on serious dimensions. Apart from that – the truth remains that often instances of sexual abuse or violence of any kind against children are perpetrated by people whom the child knows, and with whom the child shares a fiduciary relationship of some sort. For instance – the relationship could be one between a parent and a child, or between a grandparent and a grandchild, or one between an uncle and his niece or nephew, or between a guardian and his ward. The abuse is often unseen, unheard and invisible and that the child is almost never taken seriously or at the worst doubted when they pick up the courage to speak, makes it a crime of heinous proportions.
Who is a child?
Article 1 of the Convention on the Rights of the Child, defines ‘the child’ as – ‘every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier’.
In India, ‘child’ has been defined differently in the various laws pertaining to children. For instance –
The Indian Penal Code defines a ‘child’ in terms of Sec 90 which deals among its other provisions with ‘Consent of Child’ as being given under fear of injury or under a misconception of fact – if the child is under 12 years of age and the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception. The section also covers persons who due to unsoundness of mind are unable to understand the nature and consequence of the act to which he/she has consented. And then again under Sec 375 – ‘Rape’, the section lays down the age of sexual consent for girls is pegged at 16 years, but if married at 15 years of age – this is a glaring anomaly, given that most of the marriage laws in India have laid down the marriageable age for girls at 18 years and for boys at 21 years. [The Criminal Laws (Amendment) Bill, 2010 which is pending enactment meanwhile considers increasing the age of consent of women under Sec 375 to 18 years of age.]
The Prohibition of Child Marriage Act, 2006, meanwhile defines a ‘child’ as – ‘a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.’
The Immoral Traffic Prevention Act, 1956 defines a ‘child’ as – ‘a person who has completed the age of sixteen years’, and a ‘minor’ as – ‘a person who has completed the age of 16 years but has not completed the age of eighteen years’.
This ambiguity with regard to the age of consent has often come in the way of justice, with even the judiciary at times displaying bias.
In Tukaram vs State of Maharashtra [AIR 1979 SC 185] (also known as the Mathura rape case), Mathura a 16 year old tribal girl was raped by policemen within the precincts of a police station. The Sessions Court accused the victim of being a liar, stating that since she was ‘habituated to sexual intercourse’, she had consented to the act, and therefore the act could not be termed as rape. The Nagpur bench of the Bombay High Court in appeal set aside the judgment of the Sessions Court, and sentenced the two accused, Tukaram and Ganpat to one and five years rigorous imprisonment respectively, holding that Mathura's ‘passive submission’ was due to fear caused by threat, which could not be construed as consent. In a judgement that can be considered as a black mark on the Supreme Court, the apex court acquitted the accused, on the ground that Mathura had not raised an alarm and there were no visible marks of injury on her body and so she had consented to the act.
The case however galvanized the movement for reforms in the rape laws of the country. The Criminal Law (Amendment) Act, 1983, amended Sec 376, IPC, enhancing the penalty for rape, by providing for a minimum punishment of 10 years imprisonment which can be increased to life imprisonment, for police officers or the staff of a jail, remand home, hospital or other places of custody established by law. The Act also inserted a new Sec 114-A into the Indian Evidence Act, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape, at least partially – Which means that if the victim states that she did not consent to the act, the Court shall presume that she did not consent.
Meanwhile sexual offences against the girl child in particular, ranging from molestation, sexual assault and rape (as per the IPC’s definition of peno-vaginal intercourse, with penetration) have continued over the years.
In Prem Narayan vs State of Madhya Pradesh [1989 CrLJ 70734] – The accused while attempting to penetrate a 9 year old severely injured her. Due to the pain the girl did not permit the doctors to carry out an internal examination. Hence the exact extent of the vaginal tear could not be determined. The court however without concern as to the physical or emotional state of the child gave the maximum benefit of doubt to the accused, and convicted him only of an attempt to commit rape. On appeal the High Court commented that the accused had erroneously escaped punishment for rape but held that since the State had not appealed against it, it would not be proper to look into the question.
In Bhansingh vs State of Haryana [1984 CrLJ 786], where a 7-year-old girl was raped by a boy of 18, severely injured and left in an unconscious condition, the appeal to the High Court to enhance the sentence of the accused was dismissed on the ground that – ‘Although rape warrants a more severe sentence, considering that the accused was only 18 years of age, it would not be in the interest of justice to enhance the sentence of five years imposed by the trial court.’ Nowhere did the court consider the fact that the victim was a child and would have to permanently carry not only the physical and emotional wounds of being raped, but the social stigma that accompanies such offences especially in closed societies like ours. The interest of justice for the 7 year old victim escaped the attention of the court.
But sexual offences against children are not limited to girls alone and often male children suffer sexual abuse at the hands of parents, relatives, teachers, older children, siblings or even strangers. Indian law however apart from the provision of Sec 377, IPC, which is used routinely by the police to harass adult men who have consensual sex with other adult men, does not effectively use the provisions of that law to address the issue of sexual abuse of male children, which may or may not include sodomy.
The first ever National Study on Child Abuse, conducted in 2007, under the aegis of the Ministry of Women and Child Development, covered 13 states in India and 12,446 children, and released the following statistics with regard to child sexual abuse –
- More than 53% children report facing one or more forms of sexual abuse
- Almost 22% faced severe sexual abuse, with 6% being sexually assaulted
- 50% of the sexual offenders were known to the victim or were in positions of trust with the victim (family member, close relative, friend or neighbour)
- The onset of abuse is from 5 years of age
- Boys were equally at risk as girls
- The severest instances of sexual abuse occurred in the age group of 11-16 years
- 73% of sexual abuse victims were in age group of 11-18 years.
Given these figures it is shameful and regrettable that in a country like India which has a history of violence – sexual or otherwise towards woman, young and old, and which is increasingly being viewed as a prime tourism destination by paedophiles, the law has largely remained inert and often discriminatory on this crucial issue. Not just that, but often members of the judiciary, lawyers and judges alike have sought to discredit young victims, adding further to their victimization.
In Mohd.Habib vs State [1989 CriLJ 137, 1988 (2) Crimes 677, 35 (1988) DLT 170], the Delhi High Court acquitted a rapist of a seven year old girl, on the grounds that there were no marks of injury on his penis, which in the opinion of the High Court would have indicated resistance on the part of the victim. The Court erred in dismissing first person eye-witness testimony to the dastardly act, and more importantly the fact that the victim was a child of seven years, that she had suffered a ruptured hymen and that she had bite marks on her body, and pronounced its verdict based on the findings that – ‘the underwear of the prosecutrix (i.e. the victim) also did not contain any blood or semen… the underwear of the appellant (i.e. the alleged rapist) taken into custody at the hospital also did not show any semen stains.’
This verdict followed that of Rahim Beg vs State of U.P. [1972 Cri. L.J. 1260] – where the judgement of the court reeked of ignorance in holding that:
"... if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence."
One may argue that in a country like India, and in the world in general, the laws with respect to sexual offences against adults are themselves in dire need of appraisal and strengthening. But the fact of the matter is that in most cases, adults can articulate and express themselves, and therefore stand a greater chance of being heard. The same is not true of children who are often not only unable to comprehend the nature of the acts being performed on them, but often lack the necessary skills or even the vocabulary to articulate the extent of the offences. This leaves them further vulnerable to exploitation by not only the offenders, especially when the offender is a member of their family, but in the event that they do bring the act/s to the notice of any authority – to disbelief and further exploitation by the police, or by lawyers, and by members/officials of the protection homes, orphanages or facilities that are set up for the care of children in these situations. Compounding their problems with the authorities is the general lack of support from their immediate families in case the offender is a family member.
Organisations working in the area of CSA
In India, there are several organisations working in the area of Child Sexual Abuse, notable among them are:
- The Rahi Foundation, set up in 1996 is a Delhi based organisation that works towards prevention and intervention in the area of incest and child sexual abuse, which includes working with adult survivors of incest/CSA;
- Tulir – Centre for the Prevention and Healing of Child Sexual Abuse, a Chennai based organisation launched in 2002; and
- Arpan, a Mumbai based organisation launched in 2003, working towards the prevention and healing of child sexual abuse.
What is Child Sexual Abuse?
Arpan defines Child Sexual Abuse (CSA) as – ‘any act directed at a child by an adult or older person for the sexual gratification of the adult or older person', and includes:
- Exposure to sexual activity or pornography
- Sexually explicit talk or hint
- Sexual touch or fondling
- Rape or attempted rape
Tulir – Centre for the Prevention and Healing of Child Sexual Abuse defines CSA as – ‘the use of a child for sexual gratification by an older or more powerful person’, and includes the following touch and non-touch related forms of behaviour.
Touch related behaviour includes -
- Fondling a child's body for sexual pleasure or rubbing one’s genitals against the body of a child
- Kissing a child with sexual undertones/inclinations
- Sexually touching the body of a child, specifically the private parts (breasts and genitals), and encouraging or forcing a child to do likewise
- Encouraging or forcing a child to masturbate, or to perform oral sex (mouth-to-genital contact on or by the child)
- Inserting objects or body parts (like fingers, tongue or penis) inside the vagina, mouth, or anus of a child; and attempts at performing any of these acts.
While non-touch related behaviour includes -
- Encouraging a child to watch or hear sexual acts either in person or by lowering the bars of privacy
- Looking at a child sexually
- Exposing one’s private body parts to a child (exhibitionism)
- Watching a child in a state of nudity, such as while undressing, using the bathroom, with or without the child’s knowledge (voyeurism)
- An adult making suggestive comments to the child that are sexual in nature. Commenting on the sexual development of a child
- Encouraging or forcing a child to read/watch pornography, giving pornographic material or using the child in pornography
The process of sexually abusing children varies according to the abuser, and the circumstance, and may either take the form of an elaborately planned out and orchestrated event or series of events, with the abuser taking the time to groom his/her victim and carrying out the abuse, or it may be a spur of the moment event, encouraged by the vulnerability of the child in any given situation where the abuser finds himself/herself in a position where he/she can dominate the child with force, coercion, teasing, flattery, a display of love and concern or a combination of any of these. At times child sexual abuse may also make use of technology such as mobile phones and the internet to either lure victims or to disseminate information of a pornographic nature either in textual or visual form, using young children as subjects to feed a worldwide audience of paedophiles or the growing child-sex tourism industry.
To be continued in Part II…..
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