THE TRIBUNE / New Delhi, December 21
The landmark law on protection of children from sexual assault and pornography crossed the first big hurdle today as the Parliamentary committee reviewing its provisions cleared the Bill with one major rider. The committee rejected the government’s proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years.
Though the Ministry of Child Development, piloting the law, argued for the age of consent saying sexual awareness of children couldn’t be overlooked, the committee said once the law had defined everyone up to 18 years as children, the element of consent should be treated as irrelevant. The ministry’s contention that not having the element of consent would lead to criminalisation of consensual action by 16 to 18-year olds didn’t go down well with the committee which said in its report to the Parliament today, “By having the element of consent, the focus will be on the victim, leading to his or her re-victimisation. Children can’t be exposed to lengthy cross examinations on issues of consent.”
The committee has further asked the government to cover religious institutions like muths, madrasas and monasteries under the law. It accordingly sought amendment to the clause – “Whoever being on the management or staff of an educational institution commits penetrative sexual assault on a child in that institution…would be punished” – to include religious institutions where young boys go to study. The law also covers households, hospitals, schools and juvenile homes.
The parliamentary panel has, however, sought the word “shared household” defined as “a household where the person charged with the offence lives or has at any stage lived in a domestic relationship with the child”. The existing definition is a bit limiting. This clause will protect children from family and is historic considering the 2007 government study which revealed that 53 per cent children had suffered sexual abuse and half of these were at the hands of persons in the position of trust.
The Protection of Children from Sexual Offences Bill 2011 (introduced in the Rajya Sabha on March 23 and referred to the committee) further allows children and anyone from the public to report the offence and its apprehension to the local police or special juvenile police unit. It covers sexual offences against children at the time of communal violence and provides for special courts to deliver justice in a child-friendly environment.
Its landmark features are – definition of sexual assault for the clarity of victims and law enforcers and the presumption that those who committed the offence are accused unless proved otherwise. Though the law has safeguards to prevent false complaints, it ensures that cases don’t fall through for want of evidence which is difficult to collect.
With this law, India seeks to fulfil its commitment to the UN Convention for Rights of the Child that it ratified in December 1992. The law is path-breaking considering 24 per cent rapes in India involve children (11 per cent of these involve those under 14 years). Government data further shows that conviction in rapes fell from 38.7 per cent in 2001 to 30 per cent in 2009; in matters where minors were procured for prostitution, conviction rate fell sharply from 39.1 per cent to 18.9 per cent over the same period.
A STEP FORWARD
Parliamentary Committee rejects government proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years
Though the home ministry’s draft replaces the traditional notion of “rape” with the wider concept of “sexual assault”, the act of penetration remains an essential ingredient of this offence, which is punishable with a maximum sentence of life sentence. So, the proposed reordering of the hierarchy of sexual offences is as follows: first, the non-penetration sexual assault punishable with a maximum term of two years; second, the non-contact sexual insult punishable with a maximum term of seven years; and finally, the sexual assault involving penetration punishable with a maximum term of life.
The incongruity of prescribing greater penalty for verbal assault of a sexual nature under Section 509 than physical assault of a sexual nature under Section 354 has however been mitigated in the context of underaged victims. For, the draft bill introduces a provision dealing with “sexual abuse of minor”, irrespective of whether there is any penetration or not. It prescribes a maximum sentence of 10 years, which is five times greater the cap provided in the existing age-neutral molestation provision.
Significantly, the proposed rape law also increases the consent age from 16 to 18 years, which is also the minimum age of marriage for girls. This means that sex with a person below 18 will be regarded as statutory rape even if it is consensual. Given the general relaxation of sexual norms in the society, this could become a source of harassment. Further, the proposed provision dealing with child sexual abuse, Section 376C, will apply to both female and male victims.
There is a needless restriction on activating Section 376C. The draft bill introduces a caveat saying that the court cannot take cognizance of an offence under that provision except on a police report or a complaint made by the child victim or its close relatives. The exclusion of other well wishers like teachers, neighbours or friends from lodging a complaint seems unwarranted, given the heroic role played by Ruchika’s friend Aradhana Gupta and her parents in the prolonged fight for justice. It also shows that India remains in denial on the empirical evidence from across the world that children face the biggest threat of abuse from family members.
The home ministry has also failed to take this opportunity to do away with the anachronism of marital rape. The draft bill says: “Sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not sexual assault.” It is time India, taking cue from advanced democracies, phased out this blatant manifestation of patriarchy. One aspect in which India has sought to catch up with its western counterparts is in the definition of sexual assault involving penetration as it looks beyond the traditional penile-vaginal scenario. The draft bill penalizes penetration of not just the vagina but also the anus, urethra or mouth of the victim. And the penetration could be with any part of the offender’s body or any object manipulated by him.
The down side of course is, the wider the ambit of a provider, the greater the scope for abuse. The existing definition limiting rape to penile-vaginal penetration has the advantage of demanding greater scope for rigour in corroborative evidence. If forcible insertion of fingers in the mouth of a woman is going to be regarded as penetration, then rape or sexual assault cases are likely to be dependent on the word of the victim more than ever before.
Ananthapriya Subramanian IN THE HINDU
We urgently need legislation that specifically addresses child abuse.
The Indian Penal Code does not spell out the definition of child abuse as a specific offence
Even the Juvenile Justice Act does not specifically address the issue of child sexual abuse
The government’s decision to introduce a set of guidelines for service providers in the tourism sector in a move to prevent a repeat of incidents like the rape of a Russian girl in Goa recently is indeed a welcome step. The code of conduct envisages, among other things, training tour operators and hotel staff on identifying and reporting potential cases of sexual exploitation of children.
These guidelines will help service providers in the tourism industry to contribute their mite in building a protective environment for children by establishing an ethical policy against commercial sexual exploitation of children. The code of conduct should be displayed in all tourist places of interest, hotels, resorts, etc.
The guidelines, which will go some way in addressing some of the horrifying aspects of child abuse, come as a response to the spate of recent news reports of tourists accused of paedophilia and pornography. While applauding the government’s response, one cannot help but make the point that much more remains to be done in light of the chilling fact that India has the highest number of sexually abused children in the world. A study conducted by the Ministry of Women and Child Development, UNICEF and Save the Children in 2007 brought out some shocking facts about the extent of child abuse in India. Over 53 per cent of children reported having faced some form of sexual abuse. In fact, the study found that two out of every three children were physically abused. But the most shocking revelation is this: Most of the time, the abuse was perpetrated by someone known to the child or in a position of trust and responsibility. Not surprisingly, most children did not report the abuse to anyone.
No special law
Nineteen per cent of the world’s children live in India. Over 440 million people in the country are aged 18 years and below and constitute 42 per cent of the total population. Signing up to the United Nations Convention on the Rights of the Child, India promised to protect its children from all forms of sexual exploitation and sexual abuse. Article 34 (a) enjoins State parties to prevent the inducement or coercion of a child to engage in any unlawful sexual activity. Yet, despite having the dubious distinction of having the highest number of sexually abused children in the world, there is no special law in India dealing with child abuse and child sexual abuse.
The Indian Penal Code does not spell out the definition of child abuse as a specific offence; neither does it offer legal remedy and punishment for “child abuse.” The IPC broadly lays out punishment for offences related to rape or sodomy or “unnatural sex.” The IPC laws are rarely interpreted to cover the range of child sexual abuse; the law relating to terms “sodomy” or “rape” are too specific and do not apply to acts like fondling, kissing, filming children for pornographic purposes, etc.
Even the law mandated with the welfare of children, the Juvenile Justice Act, does not specifically address the issue of child sexual abuse. It is difficult to apply the provisions of existing laws to any case of child abuse as it is easy for a defence lawyer to make use of the legal loopholes to facilitate their client’s escape from punishment. Even if someone does get convicted under the IPC for rape, the maximum imprisonment is a mere two years.
We urgently need legislation that specifically addresses child abuse. The legislation must address all forms of sexual abuse including child prostitution and child pornography. But it should also deal with physical abuse, including corporal punishment and bullying and, trafficking of children. There is urgent need as well to have a functioning administrative system to record and register child abuse cases. Given the fact that the majority of children do not report sexual abuse to anyone, any law must look at mechanisms of reporting and persons responsible for reporting. Children need to be able to go to someone who they know will listen to them, protect them and take action on their behalf.
Merely enacting legislation will not be enough unless this is followed by strict enforcement of the law with accountability defined. Also, parents, teachers and others in the community have a vital role to protect children from sexual exploitation and abuse. Children are the country’s greatest human resource and a measure of the country’s social progress lies in the wellbeing of its children: that they are healthy, educated, safe, happy and have access to life opportunities.
( Ananthapriya Subramanian is Media and Communications Manager with Save the Children.)
Praveen Swami IN THE HINDU JANUARY 21, 2001
By the grim standards of the dystopia India’s children inhabit, S.P.S. Rathore’s crime was utterly ordinary.
In December last, Indians watched in outrage as S.P.S. Rathore, former Haryana Director-General of Police, smirked at the end of court proceedings which saw him receive a six-month prison sentence for sexually abusing a teenager 19 years ago.
Not far from the Chandigarh courtroom where Rathore was convicted, a panchayat in Rohtak gathered to discuss the fate of a seven-year-old girl who had been sexually abused by a retired schoolteacher. The panchayat ordered that the hair of the perpetrator, Sushil Kumar, be shaved off — but asked the victim’s family not to inform the police. It was only three weeks later, after Kumar’s sons threatened the family, that the matter was reported to the police. The child’s story was buried in inside pages of local newspapers; the police say evidentiary issues render it unlikely the perpetrator will ever be punished.
Kumar is not the only paedophile who has not received national attention. Few know the story of a two-year-old raped by a construction contractor in Bangalore, a 10-year-old girl from Valsad raped by her uncle or the Latur teenager raped by three young men in her village and hanged from a jamun tree. Part of the reason Rathore’s appalling crime drew attention was that it fitted neatly with tropes of villainy familiar from pop-culture: among them, uniformed criminals immune from the law and powerful politicians who guarantee them impunity.
But the truth India has shied away from these past weeks is this: Rathore’s crime was, by the standards of our society, utterly ordinary. For the most part, India’s children live in a nightmare; a dystopia founded on our collective complicity and silence. By the Government of India’s account, more than two-thirds of Indian children experience beatings in their homes, schools, workplace and government institutions — beatings which, if conducted in prison cells, would count as torture. Every second child in India, the government says, also faces one or more forms of sexual abuse.
Yet, no government has found the time or energy to enact a law against the abuse of children — leaving the authorities, when they can bestir themselves to deliver justice, to respond using legalisation intended to prevent prostitution, beggary, trafficking and rape. There is no institutional machinery to investigate schools, homes and children’s workplace for sexual and physical abuse. There are no police officers trained in the special skills needed to deal with child abuse. Barring a handful of organisations and individuals working to address the needs of abused children, there is no resource which victims and their families can turn to for help.
In 2007, the Union Ministry of Women and Child Development released the thoughtful —and terrifying — Study on Child Abuse in India. More than 12,000 children were polled to arrive at an empirical picture of the scale of beatings and sexual crimes that Indian children endure. Fifty-three per cent of the children said they had encountered “one or more forms of sexual abuse;” 68.99 per cent said they had suffered physical abuse, including beatings. More than a fifth reported severe sexual abuse, including assault, having been compelled to fondle adults’ private parts, exhibit themselves or be photographed nude. Well over half of those reporting severe sexual abuse were boys, the study found.
Popular wisdom holds that sexual abuse takes place when children are in environments outside the supposedly safe confines of their homes and schools. That, the study found, was simply not true. Fifty-three per cent of children not going to school said they had been sexually abused in their family environment. Just under half said they had encountered sexual abuse at their schools. These figures, interestingly, were about the same as children in institutional care who said they had been sexually abused — 47.08 per cent. Most vulnerable were children in workplaces, 61.31 per cent of whom had been sexually abused.
Boys in all but four of 13 States — Gujarat, Madhya Pradesh, Maharashtra and Goa — were found to be more at risk of sexual abuse than girls. In Delhi, a staggering 65.6 per cent of the boys reported that they had been sexually abused.
Most at risk of serious sexual abuse, the study found, were children between 11 and 18 — although the group between six and 10 also reported significant levels of assault. Analysed by age group, the study states, sexual abuse was reported by “63.64 per cent child respondents in the age group of 15-18 years, 52.43 per cent in the age group of 13-14 years and 42.06 per cent in the age group of 5-12 years.” Assam, Delhi and Andhra Pradesh were found to have the highest levels of sexual abuse, with Uttar Pradesh, Gujarat and Goa recording the lowest.
We know, from separate studies, that the use of children in prostitution is also widespread. In their 2005 study, Trafficking in Women and Children in India, S. Sen and P.M. Nair estimated that there are up to half-a-million girl children from across the South Asian region working as prostitutes in India.
Elsewhere in the world, the existence of well-functioning justice mechanisms — and an open public debate on child sexual abuse — seems to have helped contain the problem to at least some extent. In the United Kingdom, a 2000 study by the National Study for the Prevention of Cruelty to Children found that about 16 per cent of children experienced sexual abuse before the age of 16. In the United States, one in four girls and one in six boys reported similar experiences. Horrific as these figures are, they are still well below the levels the Government of India’s study suggests are prevalent in our country.
Victims of violence
Depressingly, sexual abuse is only part of a wider gamut of violence. Sixty-nine per cent of the children polled reported having been physically abused — a term the authors of the Study defined as behaviour manifesting itself in kicking, slapping or corporal punishment at homes, schools, institutions and workplaces. In all the 13 States covered by the study, the incidence of physical abuse directed at children was above 50 per cent — a sign of just how widespread and legitimate the use of force is considered across the country. More than 80 per cent of children in Assam, Mizoram, Delhi and Uttar Pradesh reported physical abuse.
Most of the victims of physical abuse, the Study found, were very young children. Forty-eight per cent of the respondents who reported physical abuse were between five and 12 years old, while 26.29 per cent were 13 or 14. Older children, aged between 15 and 18, seemed to be targeted less for violence; just over a quarter reported encountering abuse. Boys reported encountering violence more often than girls in all States except Gujarat and Kerala. “In all age groups, an overwhelming majority of children (65.01%) reported being beaten at school, which means that two out of three children are victims of corporal punishment.”
The findings of the Study, its authors noted, were broadly corroborated by several other independent studies. Maulana Azad Medical College researcher Deepti Pagare found that over three-fourths of children in Delhi’s Child Observation Home had reported being subjected to physical abuse. Signs of abuse were found on the bodies of about half the children studied by Dr. Pagare. Fathers made up over half the reported perpetrators, and Dr. Pagare found a significant association between physical abuse of children and domestic violence in homes as well as substance abuse. Save the Children and Tulir, in a 2006 study conducted in West Bengal, found that almost three-quarters of child domestic workers had been physically abused. In 41.5 per cent of cases, the perpetrator was a member of the employers’ family.
What needs to be done? For one, India’s criminal justice system simply doesn’t have either the legal instruments or police infrastructure to deal with crimes against children. Despite calls from campaigners and child-rights groups, India is yet to pass a specific law on child sexual abuse — a legislative failure that makes prosecution in many situations almost impossible. Early this year, Punjab and Haryana High Court judges Mukul Mudgal and Jasbir Singh announced that they intended considering guidelines for the prosecution of child abuse cases. However, thoroughgoing criminal justice reforms will be needed for such efforts to yield results. Just 0.034 per cent of the Plan expenditure in 2006-2007 — an appalling figure — was committed to child protection.
In 1974, the National Policy for Children declared children a “supreme national asset.” No country in which two-thirds of children report beatings, and half experience sexual abuse, can make that claim with honesty. We must rip away the shrouds of silence that conceal the sheer pervasiveness of child abuse in our society. Our silence and inaction against the paedophiles in our homes, schools and neighbourhoods make us complicit in the horrific crimes being perpetrated against our children.
Meenakshi Kumar , March 29, 2009
If and when the Mumbai businessman, accused of raping his daughter for nine years, is convicted, it will be for rape. So, too, the fathers accused in Amritsar and Nagpur. Indian law does not regard incest as a separate crime. The businessman would face charges under Section 376 of the Indian Penal Code, which covers rape. This is how India deals with the shameful reality of incest. A man accused of raping a child younger than 12 can expect a minimum sentence of 10 years; the highest punishment is life imprisonment. But an Indian father accused of forcing himself upon his minor daughter cannot be convicted for incest per se.
In contrast, many developed countries recognize incest as a serious offence. Britain, which has punished it since 1908, sets a prison term of 14 years. In the US, punishment varies from state to state. If it’s 20 years in prison in Massachusetts, it can be up to five years in Hawaii. In Germany, sex with a close relative is punished with three years in prison. Two years ago, a brother and sister famously challenged Germany’s law on incest. The siblings grew up separately and argued that the law against incest was out of date and they were within their rights to continue their relationship free from the threat of imprisonment. They lost the case and incest continues to be illegal in Germany.
Not so in India, where children’s rights activists have long demanded a more defined law to prosecute perpetrators. In 1983, the law against rape was amended to include policemen, hospital and prison staff who abused women in their custody. But it overlooked activists’ pleas to include sexually abusive fathers in the category of people who violated responsibility. ‘‘In most cases of sexual abuse, it’s the father who is responsible for the heinous crime. He is the custodian of the child. So, a custodial rape should also look at father as a suspect,’’ says Mumbai-based women’s rights activist and lawyer Flavia Agnes.
But a Mumbai court last year let off a father who raped his daughter for years in the suburbs. His alleged crime — incest — was not recognized as a punishable offence.
Why is a social taboo like incest not punished by law? Social workers and lawmakers believe it is a reflection of society’s refusal to acknowledge that incest exists. Anuja Gupta, founder and executive director of an NGO called Recovering and Healing from Incest or RAHI, ‘‘By not legislating a strict punishment, the law is simply reiterating that it’s not a serious issue. If stringent punishment were made legal, then it has to be accepted that incest exists. But we don’t even want to admit that. It’s treated more like an aberration and so there is no harsh punishment. And this is true across the world.”
Countries that punish incest harshly have done so only after years of ground work by social workers and institutes that worked with incest victims, she says.
Agnes adds that somewhere we ‘‘don’t want to interfere with our family values and as such keep quiet about it.’’ Most often, the interest of the child is sacrificed for the greater interest of the family.
There are no statistics on incest here but a 2007 study by the Ministry of Women and Child Development on the sexual abuse of children found that 54% had been violated at some point in their lives; 50% knew the offenders. The sexual abuse of children, of which incest is a major part, is a growing menace but little is done to address the issue. Interestingly, the sexual assault of a minor boy is covered by the very law — article 377 — that criminalizes homosexuality.
Nishit Kumar, who heads Communication and Strategic Initiatives at Mumbai’s Childline India Foundation, says it is appalling that India, which has 450 million children below 18, allocated just 0.7% to protect children in its last Budget. He says ‘‘it’s a question of priority’’ and Indian lawmakers are yet to realize the enormity — and spread — of the crime.
Every society has its own definition of incest. When the Romans ruled Egypt, sibling incest was common. It’s even believed that Cleopatra was the product of an incestuous relationship. Closer home, particularly south of the Vindhyas, it’s common for a girl to marry her mother’s older brother.
Mohammad Abdul Kalam, professor of Anthropology at the University of Madras argues that what may be right for one particular society may not work for another. ‘‘While amongst most South Indians, an uncle-niece marriage may not amount to incest, in north India it is frowned upon. But that doesn’t mean that incest is not taking place in the north. Abusive words mentioning mother-sister are an indicator that there is an awareness of this so-called taboo but nobody wants to talk about it.’’ He says cases of incest should be seen as individual perversions. Stricter laws, he believes, would not cause the incidence of incest to decline.