“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul.”
Children are the genesis of change, a cornerstone that will aid in shaping the future for the times to come in some way or the other. But what if the child to whom we are looking forward to is wounded to its core by the trauma and misery that has been brought upon them in their childhood. Also, if that agony is inflicted upon by one’s own family in any form, be it mental or physical, in the place which is presumed to be Eden for a person, that place becomes a living hell in no time.
In India, the rate of cases of sexual abuse against children is soaring every year, statistics from the 2019 report of the National Crime Records Bureau reveal that the registered cases in the POCSO Act are approximately 35.3% and above per lakh. However, many cases are never reported because families are ashamed to even admit that such a heinous crime has been committed in their family, under their noses.
Most of the time the offenders of the sexual abuse against the children are acquaintances or very close family members. However, due to a lack of conversation around sexual acts in Indian households, usually, a child is not able to differentiate between ‘good touch’ and ‘bad touch’ and does not even realize what is happening with them.
The shocking reality is that sometimes, families don’t believe that their children have been suffering through sexual abuse. Rather they choose to remain silent because of the social stigma attached to this sensitive issue, or fear of dishonouring the family’s reputation. This appears to be the reason why most people who experience sexual abuse as a child do not even disclose it to anyone and accept it as their reality.
Presently, owing to the nationwide lockdown due to the Covid-19 pandemic, the cases of sexual abuse against children increased notably. A report released by Press Trust of India stated that in the first week of lockdown in 2020, the child helpline ‘CHILDLINE 1098’ received over 92,000 SOS calls from all over India, seeking protection from violence and abuse.
The irony of the whole situation is that when the world was under lockdown to curb the spread of the virus and was asked to protect themselves by staying at home, these children were living in their homes seeking protection against sexual abuse.
What is Child Sexual Abuse?
World Health Organisation (WHO) defines Child sexual abuse as “The involvement of a child in sexual activity that he or she does not fully comprehend, 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.”
According to the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act/POCSO) sexual abuse against children is contained under two heads of sexual behaviours i.e., Contact and Non-Contact.
Contact Sexual Abuse consists of the acts of
- Penetration of penis or any object in a child’s vagina, anus, or mouth. (Section 3)
- Fondling of a child’s private body parts with sexual intent, or making the child fondle the abuser’s private parts. (Section 7)
Non-Contact Sexual Harassment consists of the acts of
- Making a child exhibit their private body parts or the abuser’s exhibiting his private body parts to the child. (Section 11 (ii))
- Showing pornographic content to a child in any form. (Section 11 (iii))
- Following or contacting a child directly or digitally. (Section 11 (iv))
- Threatening to use a real or fake depiction of a child’s private parts, in any form of media. (Section 11 (v))
Legal Position of laws related to Child Sexual Abuse
Prior to 2012, the provisions related to sexual harassment provided under the Indian Penal Code, 1860 were also used to apply in the cases of sexual abuse against children.
POCSO Act, 2012 was enacted when India ratified the UN Convention on Rights of Children. This Act is the statutory authority that deals with the cases of sexual abuse against children and is inclusive of both male and female victims of sexual abuse who are under the age of 18. This legislation lays down provisions relating to all forms of sexual abuse with stringent punishment of ten years which may exceed life imprisonment as well. After the amendment of 2019, the provisions concerning the punishment of certain offences under the act has been enhanced.
Furthermore, the Act contains guidelines relating to the procedure of reporting offences and recording the victim’s statement. Prior to the enactment of this Act, no law or provision covered non-penetrative sexual abuse against boys which is now a defined offence under the Act.
The Special Courts have also been set up to hear the matter expeditiously u/s 28(1) of the Act. Further, Section 32 of the Act talks about appointing a special public prosecutor for dealing with the cases under this Act.
Since the implementation of POCSO, the reporting of cases of sexual abuse has increased because the Act has tried to deal with the victims more benevolently considering the tender age of the children who have endured such an awful experience.
Judiciary plays a very significant role in the development and interpretation of any law. Similarly, the Indian judiciary has progressively contributed to the formulation of the POCSO Act through multifarious judgments.
In the case of Salman v. NCT of Delhi wherein the Delhi High Court upheld the POCSO Special Court’s judgment and observed that even though it is an established principle that the testimony given by child witness could be dangerous as they can easily be influenced but, the testimony is liable for acceptance if, after the scrutiny, Court finds the testimony reliable. The court further stated that it is only a rule of prudence that the Court finds it desirable to have the corroboration of the evidence of the child from the testimonies of the witnesses.
In this case, the testimony of a 10-year-old boy who was the victim of the act of sodomy committed by the appellant was found reliable and the High Court upheld the trial court’s punishment of rigorous imprisonment of 10 years u/s 6 read with Section 5(m) of POCSO Act.
In the case of Vijayalakshmi v. State, the victim and defacto complainant had jointly applied to quash the proceedings pending u/s 366 of IPC, Section 6 of POCSO, and Section 9 of Prohibition of Child Marriage Act, 2006 against the second respondent. While hearing the matter, Madras High Court raised serious concerns over the increasing number of incidents wherein the offences under the POCSO Act are slapped on the teenagers because of the relationship between adolescent boys and girls. Due to the nature of the Act, the boy involved in the relationship gets sentenced for 7 or 10 years as the case may be if the age of the girl is proved to be below 18 years. Thus, the court observed that a thorough consideration of the ground realities of society today is very important and opined that any consensual sexual act between two adolescents after the age of 16 could be excluded from the provisions of POCSO.
In January 2021, the Bombay High Court’s decision in the case of Satish v. State of Maharashtra stroked controversy. The court had observed that mere groping, is not adequate for a crime to be booked u/s 7 of POCSO. There must be skin-to-skin contact with sexual intent and acquitted the appellant u/s 8 of POCSO. However, due to public outrage, the Supreme Court stayed the High Court’s order.
A child’s mind is fragile which needs to be sculpted with tremendous vigilance and trauma accompanied with sexual assault can drain a child mentally, physically, and emotionally which can cause immense agony to a person for a prolonged period.
Society will have to understand Sexual Abuse against children and spreading awareness around this form of abuse is very important. Silencing the victim or turning a blind eye towards such cases for the sake of family reputation will not Stop the offender. It is the duty of the Parents or family members to believe their children when such a problem is reported to them.
The Moral Policing of female victims needs to stop so that the victims who courageously come forward do not have to retract from their statements due to societal pressure.
The stricter implementation of the present laws is vital for enabling more people to come forward and report cases of sexual abuse. The idea of Prevention is better than cure should be applied in POCSO cases because the provisions of the Act do not mention the prevention of sexual abuse rather provides for punishment after the offence has been committed.
Furthermore, research around sexual abuse against children should be conducted for the formulation of a detailed preventive measure to suppress such cases in the future.