Tackling Child Sexual Abuse, Without Punishing Teenage Love

Saurav Datta decodes the Prevention of Children from Sexual Offences (POCSO) Act.

In India, child sexual abuse remains that proverbial elephant in the room, despite excruciatingly painful, and heartrending consequences. (Photo:iStockphoto)

(The Quint is supporting #ProtectOurChildren, an initiative by Rajeev Chandrasekhar, Member of Parliament, to find lasting solutions to the problem of Child Sexual Abuse. A group of NGOs, activists, school principals, parents and survivors of child sexual abuse are coming together for an Open House event titled ‘Why we need to start talking about Child Sexual Abuse and Protect Our Children’ on the 30th of November, at the Constitution Club of India. Participants include NGOs like HAQ Centre for Child Rights & RAHI foundation, Child Law expert Swagatha Raha from National Law School, Bengaluru, Preethi Herman from Change.org and various public figures, some of whom voice their concerns with The Quint. At the end of the deliberations, the Open House aims to arrive at a consensus to frame a roadmap and find solutions to curb the menace of Child Sexual Abuse.)

In India, child sexual abuse remains that proverbial elephant in the room, despite excruciatingly painful, and heart-rending consequences.

As anthropologist Michael Taussig says, it continues to remain a “Public Secret”. It isn’t a fact that the laws and justice delivery system aren’t doing their bit to rein it in, but there are more than quite a few loopholes and contentious areas which scream out for urgent redress.

There are societal pressures, factors and considerations which play a governing role in situations where the protector shields the oppressor, but those cannot be tackled by legislative and judicial measures alone, and require multi-pronged, concerted efforts.

The Quint provides a low-down on the present situation.

Legal Provisions

In 2012, the government sought it fit to bring about a comprehensive and special law to tackle child sexual abuse. (Photo: iStockphoto)

In 2004, the Supreme Court was confronted with a problematic choice.

Should it expand the boundaries of the definition of rape, so that all forms of child sexual abuse, and not only peno-vaginal penetration, could be dealt with and punished accordingly? In its judgement, the court played safe, preferring not to disturb the status quo, although it did express its sadness at the plight of children on whom sexual abuse is inflicted.

Earlier, in 1998, the Delhi High Court was compelled to take to task a trial court judge who, unwittingly or otherwise, ended up reducing the trial of a child victim, who was being repeatedly raped by her father, to a pornographic spectacle.

It is in the backdrop of these incidents that one is required to review the situation.

In 2012, the government sought it fit to bring about a comprehensive and special law to tackle child sexual abuse, especially because in the domain of criminal law, such special laws prevail over general laws in so far as prosecution and punishment of offences are concerned.

This new law took a pathbreaking leap in defining sexual offences committed against children, and put in place measures to get them justice.

POSCO Act Broadens Ambit of Sexual Offences

First and foremost, it broadened the ambit of sexual offences, and included all sorts of penetration of all orifices. (Section 3)

Penalises Sexual Assault of Children by Police and Army

Second, it is the only law in India to penalise aggravated sexual assault of children by police personnel and members of the armed forces. (Section 4). Despite a spate of violations and sexual atrocities (for instance, the Kunan Poshipora mass rape incident) in Kashmir, the legislature and the executive have shied away from bring in any law to prosecute the perpetrators of such crimes.

Lays Down Procedures to Tackle Child Pornography

Third, by way of Section 13, lays down detailed procedures for prosecuting and punishing those who make and propagate child pornography, on the Internet or any other electronic and non-electronic medium. Section 67B of the Information Technology Act also criminalises the viewing and dissemination of child porn, but its applicability is restricted only to the electronic medium.

Section 13 lays down detailed procedures for prosecuting and punishing those who make and propagate child pornography. (Photo: iStockphoto)

Mandates How Offences Are to Be Reported and Registered

Fourth, in Section 19, the POCSO Act mandates how offences are to be reported and registered. It for calls for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine. Thus, a teacher who is aware that one of her students has been sexually abused by a colleague is legally obliged to bring the matter to the attention of the authorities. The Act, on the other hand, also prescribes punishment for a person, if he provides false information with the intention to defame any person, including a child.

Provides For Special Courts to be Established

Fifth, and this is of critical importance, since insensitive courts and heartless judges play a stellar role in pushing justice off the rails, even if the victim has been subjected to irreparable suffering. In Sections 28 and 33 respectively, the Act provides for special courts to be established, and lays down specific rules for recording evidence in trials. In 2003, the Supreme Court did lay down mandatory guidelines in this regard, but since they were being followed mostly in the breach, these provisions were necessitated.

The Flip Side

The Act imposes a curb on voluntary and consensual expression of teenage sexuality. (Photo: iStockphoto)

In 2013, a Delhi judge pointed out this problem in his ruling, but drew a good deal of flak from child rights activists who cared little about hormones or sexuality. Independent journalist Chinmayi Shalya has documented in detail how innocent male teenagers are bearing the brunt of the well-intentioned but excessively sweeping provisions.

Nobody denies or disagrees with the necessity of the law, but its implementation has thrown up an unforeseen and troubling consequence, too. This is because by defining any sexual act with a child (anyone below 18), the Act is imposing a curb on the voluntary and consensual expression of teenage sexuality. Because the legal age of consent for sexual intercourse remains 18 years, even if a 17 year old male has fully consensual sex with a 16 year old female, he shall be facing prosecution and might end up behind bars, or if not, a Juvenile Home. And have his life derailed and reputation in tatters.

Hence, overall, child sexual abuse, as anyone who has read Pinki Virani’s Bitter Chocolate would know, has to be confronted and combated on multiple fronts. The law is only one of them.