 What is child sexual abuse?

According to the World Health Organisation, child sexual abuse is the

involvement of a child in sexual activity that he or she does not fully
comprehend, is unable to give informed consent to, or that violates the laws or
social taboos of society.

It is important at this stage, to separate the broader issue of child abuse from
the specific one of child sexual abuse. Child abuse may be emotional, mental,
physical or sexual and encompasses a much wider gamut of actions. Child
sexual abuse is that which targets sexuality and/or sexual organs, involves
sexual gestures, words, pictures, actions.

Children who have faced some amount of sexual abuse 53% Children who
report having been sexually assaulted 6% Cases where the abuser was in a
relationship of trust with the child 50%

While releasing the report on child abuse in India, Women and Child
Development Minister Renuka Chowdhury said, “Child abuse is shrouded in
secrecy and there is a conspiracy of silence around the entire subject.” This is
only one of the many problems faced by those working in social development,
legislation and justice, both in government and non-government bodies. The
above-mentioned report for instance says, “One of the major problems in
understanding the scope of the subject of 'child abuse' is that it is extremely
difficult to get responses from children on such a sensitive subject because of
their inability to fully understand the different dimensions of child abuse and
to talk about their experiences. It is therefore difficult to gather data on
abused children.” Child rights activists argue that the problem may not be the
child’s inability to speak about sensitive subjects, as much as the lack of skills
on the part of the questioners to create the environment and the trust required
to enable the child to share his/her experiences.

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Child sexual abuse in India

Currently, the Indian Constitution recognises various crimes against children

that are linked to their sexual abuse – The Immoral Traffic (Prevention) Act
that protects children below the age of 16 from being used for the purposes of
commercial sex. The Juvenile Justice Act Section 26 (Exploitation of Juvenile
or Child Employee) provides for punishment if a person procures a juvenile for
hazardous employment. The Prohibition of Child Marriage Act also makes
punishable the practice of marrying girls under the age of 18 and boys under
the age of 21. In addition to these legislations there is also a commission for
the protection of the rights of children which inquires into various violations of
child rights and recommends initiation of proceedings as seen necessary.

It is important to understand that sexual offences against children can and

are committed in all the above situations – marriage, trafficking, employment -
and in many more. It is equally important to understand the kinds of social
and legislative circumstances that allow for and may even be a reason for
sexual abuse. Interactions with people in slums in urban centres for instance,
reveals that many get their children married young to protect them from
sexual abuse. Once a girl attains puberty she begins to be seen as sexually
available. For some parents marriage is the only way to ensure that the girl is
‘unavailable’ to others for abuse.

Among the Naths of Bihar, prostitution is a way of life. When a family doesn’t
have a daughter, girls are purchased from other parts of the state and pushed
into sex work so that the family can live off their earnings. Children who work
as domestic labour, or help in hotels and restaurants, are susceptible to
sexual abuse at the hands of employers and customers. In addition to these
situations, children across caste and class lines are vulnerable within their
families, to abuse from relatives and friends of the family.

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A number of children go missing every year – some are sold by their families,
some are kidnapped, others lured by the promise of a better life both for
themselves and their kin. According to CRY (Child Rights and You)

[*]8,945 children go missing in India every year[/*]

[*]500,000 children are estimated to be forced into the sex trade every year[/*]

[*]Approximately 2 million child commercial sex workers are between the ages
of 5 and 15 years[/*]

[*]Approximately 3.3 million child commercial sex workers are between 15 and
18 years[/*]

[*]Children form 40% of the total population of commercial sex workers[/*]

[*]80% of these children are found in the five metros – Delhi, Mumbai, Kolkata,
Chennai and Bangalore[/*]

[*]71% of them are illiterate. [/*]

It is thus apparent that a network of deprivations and vulnerabilities – poverty,

age, gender, caste, lack of safe spaces, lack of schools, lack of proper
institutional care for children without functional families -- create situations
where children are sexually exploited. While some psychologists do argue that
violators are ‘psychopathic’ or ‘dysfunctional’ in various ways, it is important
to identify and engage with the many ways in which children become
disempowered in our society so that they are seen as easy targets of sexual
oppression.

[B]Vulnerability or oppression?[/B]

Jenny Kitzinger ([I]Defending Innocence: Ideologies of Childhood[/I]) critiques

the over-emphasis on children’s vulnerability and the resulting lack of control
that children have over their bodies. According to her, “...the notion of

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children’s innate vulnerability...is an ideology of control which diverts
attention away from the socially constructed oppression of children...” She
suggests that as a first step we replace notions of ‘vulnerability’ with
‘oppression’ or ‘powerlessness’ and discourses of ‘protection’ with those of
‘empowerment’. Going a step further, she denounces the practice of telling a
child that s/he “can say ‘no’”. At best she feels that this is an individualist
solution. At worst, it is giving the child a sense that s/he can resist a power
that in reality, s/he can probably not.

As a society, it is important to recognise that the sexual exploitation of

children is fundamentally about power. For instance, the case of a 15-year-old
girl who was raped by a policeman in Mumbai shows clearly how both power
and the lack of it collude to render children vulnerable. The victim is from a
poor family and was to be ‘helped’ by the person who took her to the
policeman for sexual exploitation. Her assaulter was not only male and adult,
but also a policeman – someone considered very powerful by the [I]aam
aadmi[/I] in the city.

Those who target children realise that they are less likely to speak about the
incident/s, that even if they do few will believe them, that even if they are
believed there may be little that community members will do about it, that
even if some action is taken there are loopholes in court processes that can be
availed of. In the Anchorage case for instance, despite several articulate
lawyers and activists being involved in the entire process on behalf of the
children who were abused, the High Court saw the children as ‘unreliable
witnesses’.

[B]Legislation to protect children from sexual abuse[/B]

In order to address various circumstances and degrees of sexual offences

against children, in 2005, the Offences Against Children Bill was drafted. In
2007, the law ministry rejected the bill saying that there was no reason for a
separate enactment since the various issues the bill focussed on were already

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covered by other legislations. In 2009 discussions anchored by TULIR Centre
for the Prevention and Healing of Child Sexual Abuse led to the framing of a
specific bill for sexual offences against children. The Protection of Children
from Sexual Offences Bill has currently been sent to the state governments for
consideration.

The draft of the Prevention of Sexual Offences Against Children Bill 2011
delineates various kinds of sexual abuse and the prescribed response to each
under the law. It clearly distinguishes between sexual assault, aggravated
sexual assault, penetrative sexual assault, aggravated penetrative sexual
assault and sexual harassment. In each case, the kinds of actions that fall
under the section are specified, and minimum and maximum punishments
given. In the final section of the Bill, there is a detailed section that lists
responsibilities of various dutybearers to the child -- police officers, child
support services, medical officer and case worker. It also lists the protocol to
be followed by police and medical practitioners, as well as during court
processes.

1. It acknowledges and engages with sexual crimes of all kinds -- real/virtual;

penetrative/ non- penetrative; homosexual/ heterosexual/ bestial; verbal/
physical.

Pro: This is a major improvement on the earlier situation, when child sexual
abuse was clubbed with sexual abuse of adults. It acknowledges that sexual
violations can be of various kinds and that in the case of children, the state
must take a clear punitive stand on any kind of sexual violation.

Con: People who provide support to victims of CSA often prefer that the
distinction be between contact and non-contact sexual offences. They feel this
detailing may offer loopholes in implementation that are not being foreseen
currently.

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2. It is gender-inclusive, accepting that the perpetrators as well as the victims
may be either male or female.

Pro: It is otherwise commonly assumed that sexual abuse can only be initiated
by a male upon a female child. The recent study on CSA by the Government of
India indicates that boys possibly face more sexual abuse than girls.

3. It puts the onus of innocence on the accused

Pro: Under this Bill, the person accused of CSA would need to prove his
innocence rather than having to be proven guilty. This would imply that a
person once accused of CSA would be assumed guilty until proven otherwise.
Some activists feel that this provision is necessary to protect victims and to
ensure that the process focuses on procuring justice for children.

Con: While the intent behind the provision is probably to ensure that the
pressure of proof does not rest on the victim, many have raised objection to it
stating that it is in violation of a fundamental principle of justice in India -
that a person is innocent until proven guilty.

4. It specifies timeframes within which each state must have the required
mechanisms and bodies in place to enable it to be responsive towards cases of
child sexual abuse

Pro: The length of the legal process has been a recurrent problem especially
with criminal cases where children are victims. Under this Bill, there will be
separate courts in place within six months, and these courts will have a set
of child support systems in place to ensure that the judicial process is
responsive.

Con: This puts additional pressure on an already overburdened judicial

system, creating yet another parallel track for them to cater to. Instead of
facilitating justice, it might be another excuse to delay it.

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5. It puts guidelines in place for major stakeholders in the process, in an
attempt to ensure processes that are sensitive to the child but that also
respect the right of the child to state her/his case/ experience.

Pro: The Bill’s attention to detail leaves no room for abdication of responsibility
by those involved in the process of protection of children.

Con: The excessive focus on processes and requirements for specialists

duplicates much of what is in the Juvenile Justice Act and only ensures that
the process of getting the Bill passed will overwhelm the reason for its
existence.

Several civil society actors have given their feedback on the Bill. HAQ: Centre
for Child Rights welcomes the Bill but requests that it be opened up for
consultation by the parliamentary committee dealing with it as there is still
scope for strengthening it. FACSE (Forum Against Child Sexual Exploitation)
believes that it might be preferable to introduce changes to the IPC rather than
formulate an entirely new legislation. This stand comes from their experience
of the challenges posed for implementation, especially in smaller cities/ towns
and villages where basic judicial processes are flawed and systems missing.
“In Mumbai, there will be pressure to ensure implementation. But what will
happen in other cities, where often police and other stakeholders are not even
aware of provisions for children under the JJ Act, which is now 10 years old.”

Despite this concern regarding operationalising the Bill, almost all

stakeholders accept that the current legislation is insufficient to deal with the
many circumstances in which children are sexually abused. There is also an
acknowledgement that social workers, superintendents of residential homes,
wardens, counsellors, teachers and family members all need training and
sensitising to the issue and that a minimum set of actions be put in place
enabling people to help a child who is being sexually exploited. It is only by
continuing to hear what children say and develop more ways of hearing them

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and enabling them, that mechanisms can be created to address their
exploitation and punish their violators.

The 56-page report, citing National Crimes Record Bureau statistics, stated
that a total of 48,338 child rape cases was recorded from 2001 to 2011 and
India saw an increase of 336% of child rape cases from 2,113 cases in 2001to
7,112 cases in 2011. These are only the tip of the iceberg as the large majority
of child rape cases are not reported to the police while children regularly
become victims of other forms of sexual assault too.

Among the states, Madhya Pradesh recorded the highest number of child rape
cases with 9,465 cases from 2001 to 2011; followed by Maharashtra with 6,868
cases; Uttar Pradesh with 5,949 cases; Andhra Pradesh with 3,977 cases;
Chhattisgarh with 3,688 cases; Delhi with 2,909 cases; Rajasthan with 2,776
cases; Kerala with 2,101 cases; Tamil Nadu with 1,486 cases; Haryana with
1,081 cases; Punjab with 1,068 cases; Gujarat with 999 cases; West Bengal
with 744 cases; Odisha with 736 cases; Karnataka with 719 cases; Himachal
Pradesh with 571 cases; Bihar with 519 cases; Tripura with 457 cases;
Meghalaya with 452 cases; Assam with 316 cases; Jharkhand with 218 cases;
Mizoram with 217 cases; Goa with 194 cases; Uttarakhand with 152 cases;
Chandigarh with 135 cases; Sikkim with 113 cases; Manipur with 98 cases;
Arunachal Pradesh with 93 cases; Jammu and Kashmir with 69 cases;
Andaman and Nicobar Island with 65 cases; Puducherry with 41 cases;
Nagaland with 38 cases; Dadra and Nagar Haveli with 15 cases; and Daman
and Diu with nine cases.

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