CHAPTER-1

Overview of Child Sexual Abuse

1-Introduction

Child sexual abuse (CSA) is a universal problem with grave life-long outcomes. 1 The World
Health Organisation (WHO) defines CSA as “the involvement of a child in sexual activity
that he or she does not fully comprehend and is unable to give informed consent to, or for
which the child is not developmentally prepared, or else that violate the laws or social taboos
of society.” The term CSA includes a range of activities like “intercourse, attempted
intercourse, oral-genital contact, fondling of genitals directly or through clothing,
exhibitionism or exposing children to adult sexual activity or pornography, and the use of the
child for prostitution or pornography.”

Child sexual abuse or child molestation is a form of child abuse in which an adult or
older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include
engaging in sexual activities with a child (whether by asking or pressuring, or by other
means), indecent exposure (of the genitals, female nipples, etc.), child grooming, or using a
child to produce child pornography.2

Some forms of child sexual abuse include:

 Exhibitionism, or exposing oneself to a minor

 Fondling
 Intercourse
 Masturbation in the presence of a minor or forcing the minor to masturbate
 Obscene phone calls, text messages, or digital interaction
 Producing, owning, or sharing pornographic images or movies of children
 Sex of any kind with a minor, including vaginal, oral, or anal
 Sex trafficking
 Any other sexual conduct that is harmful to a child's mental, emotional, or physical
welfare

1
Geneva: World Health organization; Child maltreatment. updated 2014. Available
from: http://www.who.int/topics/child_abuse/en/
2
Martin J, Anderson J, Romans S, Mullen P, O'Shea M (1993). "Asking about child sexual abuse:
methodological implications of a two stage survey". Child Abuse & Neglect.

Page | 1
Child sexual abuse can occur in a variety of settings, including home, school, or work (in
places where child labour is common). Child marriage is one of the main forms of child
sexual abuse; UNICEF has stated that child marriage "represents perhaps the most prevalent
form of sexual abuse and exploitation of girls". The effects of child sexual abuse can include
depression,3 post-traumatic stress disorder, anxiety, complex post-traumatic stress disorder,
propensity to further victimization in adulthood,4 and physical injury to the child, among
other problems. Sexual abuse by a family member is a form of incest and can result in more
serious and long-term psychological trauma, especially in the case of parental incest.5

The global prevalence of child sexual abuse has been estimated at 19.7% for females
and 7.9% for males. Most sexual abuse offenders are acquainted with their victims;
approximately 30% are relatives of the child, most often brothers, fathers, uncles, or cousins;
around 60% are other acquaintances, such as "friends" of the family, babysitters, or
neighbours; strangers are the offenders in approximately 10% of child sexual abuse cases.
Most child sexual abuse is committed by men; studies on female child molesters show that
women commit 14% to 40% of offenses reported against boys and 6% of offenses reported
against girls.

The word pedophile is commonly applied indiscriminately to anyone who sexually

abuses a child, but child sexual offenders are not pedophiles unless they have a strong sexual
interest in prepubescent children. Under the law, child sexual abuse is often used as an
umbrella term describing criminal and civil offenses in which an adult engages in sexual
activity with a minor or exploits a minor for the purpose of sexual gratification.

The American Psychological Association states that "children cannot consent to

sexual activity with adults", and condemns any such action by an adult: "An adult who
engages in sexual activity with a child is performing a criminal and immoral act which never
can be considered normal or socially acceptable behaviour."

3
Roosa MW, Reinholtz C, Angelini PJ (February 1999). "The relation of child sexual abuse and depression in
young women: comparisons across four ethnic groups". Journal of Abnormal Child Psychology. 
4
Messman-Moore, T. L.; Long, P. J. (2000). "Child Sexual Abuse and Revictimization in the Form of Adult
Sexual Abuse, Adult Physical Abuse, and Adult Psychological Maltreatment". Journal of Interpersonal
Violence.
5
Courtois, Christine A. (1988). Healing the incest wound: adult survivors in therapy. New York: Norton.
p. 208. ISBN 0-393-31356-5.

Page | 2
The issue of CSA is intricate and challenging to study. The estimates vary widely depending
on the country under study, the definitions used, the type of CSA studied, the extent of
coverage, and the quality of data. However, sexual violence is seen to occur in all ages, in all
socioeconomic classes, and nearly in all countries with differences in the magnitude. Hence,
this study intended to provide a brief overview of CSA to enhance the awareness of primary
care physicians, policy makers, counsellors, police personnel, teachers, and the community.

2-Definition of child sexual abuse

These guidelines adopt the definition of child sexual abuse formulated by the 1999 WHO
Consultation on Child Abuse Prevention which stated that:

“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 for which the child is not
developmentally prepared and cannot give consent, or that violates the laws or social taboos
of society. Child sexual abuse is evidenced by this activity between a child and an adult or
another child who by age or development is in a relationship of responsibility, trust or power,
the activity being intended to gratify or satisfy the needs of the other person. This may
include but is not limited to:

 The inducement or coercion of a child to engage in any unlawful sexual activity;

 The exploitative use of a child in prostitution or other unlawful sexual practices;
 The exploitative use of children in pornographic performance and materials.

3-Types of child sexual abuse

There are 2 different types of child sexual abuse. These are called contact abuse and non-
contact abuse.

Contact abuse -Contact abuse involves touching activities where an abuser makes physical
contact with a child, including penetration. It includes:

Page | 3
  sexual touching of any part of the body whether the child's wearing clothes or not
 rape or penetration by putting an object or body part inside a child's mouth, vagina or
anus
 forcing or encouraging a child to take part in sexual activity
 making a child take their clothes off, touch someone else's genitals or masturbate.

Non-contact abuse -Non-contact abuse involves non-touching activities, such as grooming,

exploitation, persuading children to perform sexual acts over the internet and flashing. It
includes:

 encouraging a child to watch or hear sexual acts

 not taking proper measures to prevent a child being exposed to sexual activities by
others
 meeting a child following sexual grooming with the intent of abusing them
 online abuse including making, viewing or distributing child abuse images
 allowing someone else to make, view or distribute child abuse images
 showing pornography to a child
 sexually exploiting a child for money, power or status (child exploitation).

4-Definition of Key Terms

Child sexual abuse (CSA) is defined by the Keeping Children and Families Safe Act of 2003
and involves : (a) the employment, use, persuasion, inducement, enticement, or coercion of
any child to engage in, or assist any other person to engage in, any sexually explicit conduct
or simulation of such conduct for the purpose of producing a visual depiction of such
conduct; or (b) the rape, and in cases of caretaker or interfamilial relationships, statutory rape,
molestation, prostitution, or other form of sexual exploitation of children, or incest with
children. Child sexual exploitation includes ownership, production, and supply of sexually
explicit images of children; using the Internet to lure children into sexual acts; prostitution of
children; and child molestation. Trauma is an individual's response to a devastating event or
series of events and has been described as "the realization of one's worst fears, the
experiences that every human being would never want to have". Sexual Assault includes any
attempted or competed sexual acts with a child or adult who is coerced or forced to engage
against their volition. This includes forcible sex offenses such as rape and sodomy.

Page | 4
5-Global Scenario of the Problem

The WHO in 2002 estimated that 73 million boys and 150 million girls under the age of 18
years had experienced various forms of sexual violence. The Centre’s for Disease Control
and the US Department of Justice conducted a study in the US and reported prevalence of
being forced to have sex at some point of time in their lives as 11% and 4% of the high-
school girls and boys, respectively. A meta-analysis conducted in the year 2009 analysed 65
studies in 22 countries and estimated an “overall international figure.” The main findings of
the study were:

 An estimated 7.9% of males and 19.7% of females universally faced sexual abuse
before the age of 18 years
 The highest prevalence rate of CSA was seen in Africa (34.4%)
 Europe, America, and Asia had prevalence rate of 9.2%, 10.1%, and 23.9%,
respectively
 With regards to females, seven countries reported prevalence rates as being more than
one fifth i.e., 37.8% in Australia, 32.2% in Costa Rica, 31% in Tanzania, 30.7% in
Israel, 28.1% in Sweden, 25.3% in the US, and 24.2% in Switzerland
 The lowest rate observed for males may be imprecise to some extent because of under
reporting.

The study concluded that CSA is an extensive problem and even the lowest prevalence
includes a huge number of victims who still need to be considered.

A review of studies from 21 high- and middle-income nations showed that seven to
36% of females and three to 29% of males reported being victims of sexual abuse during their
childhood. Evidence from the National Child Abuse and Neglect Data System found that in
2006, 8.8% children were abused sexually in the US. In a report by Advocates for Youth, it
was estimated that per year 1-3% of youth from the US experience CSA.

Review conducted by Collin-Vezina et al. reported that CSA is a major issue which
affects more than one out of five females and one in 10 males globally. In a study conducted
in Brazil in 2009, the prevalence of CSA was 5.6% among girls and 1.6% among boys. It was
also reported that boys had been sexually abused at younger ages in comparison to girls.
More than half (60%) of the sexual abuse cases reported that the incident took place before
the age of 12.

Page | 5
CSA was found to be associated with physical abuse at both younger and older ages. The
study also reported that CSA alone is accountable for about one per cent of the global burden
of disease, but it is likely to be a risk factor for several other conditions like alcohol
consumption, illegal drug usage, development of mental disorders, and spread of sexually
transmitted diseases, which when pooled, are accountable for over 20% of the global burden.
In a study conducted in Ethiopia among boys studying in high schools, the lifetime burden of
sexual abuse was 68.2% and that of rape was 4.3%.6A study conducted in Hong Kong among
college students on recall of sexual abuse before 17 years of age reported the prevalence of
various forms of CSA to be 6%; these rates were higher in females. Majority of the
participants reported being abused during their teens; the average age being 11 years.

Another study conducted in Mexico, reported prevalence of CSA to be 18.7% (58% in

girls and 42% in boys). Physical abuse was involved in 75% of the cases. In a study done in
Croatia, 10.8% of the children reported as having faced some form of CSA during childhood.
Review conducted by Martin et al. reported that nearly 4% and 2% of girls and boys,
respectively, experience CSA every year. In the age-group of 2–17 years, nearly 15% of girls
and 6% of boys face severe consequences of CSA.

A study by Song et al. in China, found that about 33% of the participants reported
sexual abuse. The lifetime burden of which was 41% for girls and 29.5% for boys. Another
study among urban Chinese population reported the prevalence of CSA before the age of 14
years to be 4.2% (males: 5%, females: 3.3%). In a study done in Boston, the burden of CSA
was 26.7% and 16.7% in girls and boys, respectively.7 Review conducted by Townsend et al.
reported burden of CSA to be 7.5–11.7% (girls: 10.7–17.4%, boys: 3.8–4.6%). 8 A study
conducted by Verelst et al. reported more than one third of the participant’s experienced
sexual violence. It is a challenging task to find out the actual number of sexually victimized
children due to the fact that the prevalence reported varies across studies and data sources.

6-Indian Scenario of the Problem

6
Haile RT, Kebeta ND, Kassie GM. Prevalence of sexual abuse of male high school students in Addis Ababa,
Ethiopia; BMC Int Health Human Rights.  Available from:http://www.biomedcentral.com/1472-698X/13/24 .
7
Chiu GR, Lutfey KE, Litman HJ, Link CL, Hall SA, McKinlay JB. Prevalence and overlap of childhood and
adult physical, sexual and emotional abuse: A descriptive analysis of results from the Boston area community
health (BACH) Survey. Available
from: www.ncbi.nlm.nih.gov/pmc/articles/PMC3718504/pdf/nihms426441.pdf . 
8
Townsend C, Rheingold AA. (2013)Estimating a child a sexual abuse prevalence rate for practioners: A
review of child sexual abuse prevalence studies. Charleston, S.C., Darkness to light. Available
from: www.D2L.org/1in10 .

Page | 6
India is home to 19% of the world's children. As per the 2001 census, about 440 million
individuals in India were below 18 years of age and constitute 42% of total population. A
total of 33,098 cases of sexual abuse in children were reported in the nation during the year
2011 when compared to 26,694 reported in 2010 which increased by 24%. A total of 7,112
cases of child rape were reported during 2011 as equated to 5,484 in 2010 depicting a growth
by 29.7%. India has the world's largest number of CSA cases: For every 155th minute a child,
less than 16 years is raped, for every 13th hour child under 10, and one in every 10 children
sexually abused at any point of time. Studies propose that over 7,200 children, including
infants, are raped every year and it is believed that several cases go unreported. It is estimated
by the government that 40% of India's children are susceptible to threats like being homeless,
trafficking, drug abuse, forced labour, and crime. In India, every second child is being
exposed to one or the other form of sexual abuse and every fifth child faces critical forms of
it.

A survey by United Nations International Children Education Fund (UNICEF) on

demographic and health was conducted in India from 2005 to 2013, which reported that ten
per cent of Indian girls might have experienced sexual violence when they were 10–14 years
of age and 30% during 15–19 years of age. Overall, nearly 42% of Indian girls have gone
through the trauma of sexual violence before their teenage.

The first study on CSA in India was conducted by Recovery and Healing from Incest,
an Indian non-government organization (NGO) in 1998. Majority (76%) of the participants
reported being abused during childhood or adolescence.9

Save the Children, the international organization, and, Tulir–Center for Healing and
Prevention of Child Sex Abuse, an Indian NGO, conducted a study in 2005 among 2,211
school going children in Chennai. About 48% and 39% of the boys and girls, respectively,
reported as being sexually abused, while more than one-tenth (15%) of the participants stated
as having faced severe forms of sexual abuse.

A study was conducted in 2007 by Ministry of women and child development in India
covering 13 states.

The study reported that about 21% of the participants were exposed to extreme forms of
sexual abuse. Among the participants who reported being abused, 57.3% were boys and
9
 Breaking the silence. Child sexual abuse in India. USA, Humans rights watch. 2013. Available
from: http://www.hrw.org/sites/default/files/reports/india0113ForUpload.pdf .

Page | 7
42.7% were girls, about 40% were 5–12 years of age. About half of the participants were
exposed to other forms of sexual abuse. The data reported by the study on prevalence of
various forms of sexual abuse are depicted in the [Table 1]10

According to Carson et al. the detection of new cases of CSA is high in India: One-fifth to
half of the country's population might have faced some form of sexual abuse at least once in
their life, but these may not include the children (1 in 5) who do not reveal their sexual abuse
from within or outside their family.

Ministry of home affairs, Karnataka reported age-wise distribution of CSA among

females, and it was seen that there was rise in number of cases from 2010 to 2012 which is
presented in [Table 2]11

10
Study on Child Abuse: India 2007. India, Ministry of Women and Child development Government of India.
2007. Available from: wcd.nic.in/childabuse.pdf .
11
Bangalore: Government of Karnataka Police department; 2012. Crime in Karnataka 2012. Available
from: http://ncrb.nic.in/CD.CII2012/Statistics2012.pdf .

Page | 8
In the year 2010 in Karnataka, 107 cases of child rape, 125 cases of kidnapping and
abduction, and 21 cases of procuring minor girls were reported which steeply increased to
142, 471, and 45, respectively in the year 2012.

Bengaluru, Karnataka accounted for 26.76% of the total child rapes reported in the
year 2012. About 27 cases were reported in 2010, which increased to 47 in the year 2011.It
was reported that more than 2,000 school-going children have been sexually abused in the
Bengaluru. According to Bangalore City Police, 38 cases of rape were reported in 2012, 34 in
2013, and 47 in 2011.

As per the data obtained from Kerala, between April 2011 to March 2012, 157 cases
of CSA were reported. The research on the issue of CSA has not received much importance
in India because of lack of reporting/disclosure. Although considerable attention has been
brought about sexual abuse among females, there is dearth of information on CSA in India.

7-Who are More Vulnerable to CSA?

The rates of sexual abuse tend to rise after commencement of menarche though children in
the younger age-group also face several forms of it. The overall prevalence is seen to be high
among both genders though studies suggest girls are more prone than boys few studies report
that there is no difference, while some others report males to be more prone. In most (95%)
of the cases, the perpetrator is known to the child (relatives, neighbours, step parents, highly
trusted people). Physical debilities like deafness, blindness, and mental retardation have
found to be associated with increased risk of being sexually abused. In a study conducted by
Romero et al. among bipolar disorder patients, 7% had history of CSA, while in a study done

Page | 9
by Schudlich et al. the prevalence was 20%. Children belonging to the lower socio-economic
status are at higher risk. The absence of one or both biological parents, marital conflicts,
and/or parental substance abuse increases the vulnerability. Children under the influence of
alcohol/drugs are more susceptible. Customs such as child marriages, devadasi system and
ngozi makes some children more prone to be victims of CSA. Lesbian, gay, bisexual,
transgender (LGBT) are more prone to CSA.

8-CSA: A hidden issue

The issue of CSA is still a taboo in India. In India, majority of the people remain numb about
this issue. This silence is due to the fear of indignity, denial from the community, social
stigma, not being able to trust government bodies, and gap in communication between
parents and children about this issue. Majority of the healthcare professionals do not have the
abilities and are not trained to examine and manage cases of CSA. A chief concern in India is
the dearth of good monitoring of various juvenile residential institutes and there is no
punishment for institutes that do not follow the laws. Institutions fear they will lose their
dignity if incorrect information is disclosed.

Hence cases are not reported and are settled within the institution. A number of
factors confound the identification a CSA victim. Some of them do not reveal characteristic
signs and symptoms. Many instances of CSA don’t include penetrant sex, victims usually
clean themselves following attack, and hence the medical investigation does not provide any
evidence of rape. CSA victims and their families experience the panorama of legal
proceedings that can continue for several years. Adding to the problem, the execution of laws
and initiatives in India is a challenge and there is lack of funding for programs for child
safety.

9-Who are the perpetrators of child sexual abuse?

Legal definitions of what constitutes child sexual abuse usually require that the perpetrator be
older than the victim. For example, in some states perpetrators must be at least five years
older than their victims for the behaviour to be considered child sexual abuse.

Page | 10
Most often, sexual abusers know the child they abuse but are not relatives. In fact, about 60%
of perpetrators are nonrelatives’ acquaintances, such as a friend of the family, babysitter, or
neighbour. About 30% of those who sexually abuse children are relatives of the child, such as
fathers, uncles, or cousins.

Strangers are perpetrators in about 10% of child sexual abuse cases. Men are found to
be perpetrators in most cases, regardless of whether the victim is a boy or a girl. However,
women are found to be perpetrators in about 14% of cases reported against boys and about
6% of cases reported against girls. Child pornographers and other perpetrators who are
strangers now also make contact with children using the Internet.

10-What do perpetrators of child sexual abuse look like?

The majority of perpetrators are someone the child or family knows. As many as 93 percent
of victims under the age of 18 know the abuser. A perpetrator does not have to be an adult to
harm a child. They can have any relationship to the child including an older sibling or
playmate, family member, a teacher, a coach or instructor, a caretaker, or the parent of
another child. According to 1 in 6, “[Child] sexual abuse is the result of abusive behaviour
that takes advantage of a child’s vulnerability and is in no way related to the sexual
orientation of the abusive person.”

Abusers can manipulate victims to stay quiet about the sexual abuse using a number
of different tactics. Often an abuser will use their position of power over the victim to coerce
or intimidate the child. They might tell the child that the activity is normal or that they
enjoyed it. An abuser may make threats if the child refuses to participate or plans to tell
another adult. Child sexual abuse is not only a physical violation; it is a violation of trust
and/or authority.

11-Risk factors for victimization

A number of factors that make individual children vulnerable to sexual abuse have been
identified; although based largely on experience in North American countries, the key
determinants are believed to be:

Page | 11
 Female sex (though in some developing countries male children constitute a large
proportion of child victims);
 Unaccompanied children;
 Children in foster care, adopted children, stepchildren;
 Physically or mentally handicapped children;
 History of past abuse;
 Poverty;
 War/armed conflict;
 Psychological or cognitive vulnerability;
 Single parent homes/broken homes;
 Social isolation (e.g. lacking an emotional support network);
 Parent(s) with mental illness, or alcohol or drug dependency.

12-How does one know if a child has been sexually abused?

Researchers estimate that, in our country, about 10% of boys and 25% of girls are sexually
abused. Unfortunately, there are often no obvious signs that a child has been sexually abused.
Because sexual abuse often occurs in private, and because it often does not result in physical
evidence, child sexual abuse can be difficult to detect.

There is not a "child sexual abuse syndrome," or any symptom that a majority of
sexually abused children exhibit.

13-What are some symptoms sexually abused children exhibits?

13.1. What are the warning signs?

Child sexual abuse isn’t always easy to spot. The perpetrator could be someone you’ve
known a long time or trust, which may make it even harder to notice. Consider the following
warning signs:

Page | 12
13.2. Physical signs:

 Bleeding, bruises, or swelling in genital area

 Bloody, torn, or stained underclothes
 Difficulty walking or sitting
 Frequent urinary or yeast infections
 Pain, itching, or burning in genital area

13.3. Behavioural signs:

 Changes in hygiene, such as refusing to bathe or bathing excessively

 Develops phobias
 Exhibits signs of depression or post-traumatic stress disorder
 Expresses suicidal thoughts, especially in adolescents
 Has trouble in school, such as absences or drops in grades
 Inappropriate sexual knowledge or behaviours
 Nightmares or bed-wetting
 Overly protective and concerned for siblings, or assumes a caretaker role
 Returns to regressive behaviours, such as thumb sucking
 Runs away from home or school
 Self-harms
 Shrinks away or seems threatened by physical contact

Page | 13
14-Effect of child sexual abuse

14.1. Psychological effects

Child sexual abuse can result in both short-term and long-term harm, including
psychopathology in later life. Indicators and effects include depression, anxiety, eating
disorders, poor self-esteem, somatization, 12 sleep disturbances, and dissociative and anxiety
disorders including post-traumatic stress disorder. While children may exhibit regressive
behaviours such as thumb sucking or bedwetting, the strongest indicator of sexual abuse is
sexual acting out and inappropriate sexual knowledge and interest. Victims may withdraw
from school and social activities and exhibit various learning and behavioural problems
including cruelty to animals,13 attention deficit/hyperactivity disorder (ADHD), conduct
disorder, and oppositional defiant disorder (ODD). Teenage pregnancy and risky sexual
behaviours may appear in adolescence. Child sexual abuse victims report almost four times as
many incidences of self-inflicted harm.

A well-documented, long-term negative effect is repeated or additional victimization

in adolescence and adulthood. A causal relationship has been found between childhood
sexual abuse and various adult psychopathologies, including crime and suicide,14 in addition
to alcoholism and drug abuse. Males who were sexually abused as children more frequently
appear in the criminal justice system than in a clinical mental health setting. A study
comparing middle-aged women who were abused as children with non-abused counterparts
found significantly higher health care costs for the former. Intergenerational effects have
been noted, with the children of victims of child sexual abuse exhibiting more conduct
problems, peer problems, and emotional problems than their peers.

A specific characteristic pattern of symptoms has not been identified, and there are
several hypotheses about the causality of these associations.15

12
Nelson EC, Heath AC, Madden PA, et al. (February 2002). "Association between self-reported childhood
sexual abuse and adverse psychosocial outcomes: results from a twin study". Archives of General Psychiatry.
13
McClellan, Jon; Adams, Julie; Douglas, Donna; McCurry, Chris; Storck, Mick (1995). "Clinical
characteristics related to severity of sexual abuse: A study of seriously mentally ill youth". Child Abuse &
Neglect
14
Dozier, M., Stovall, K.C., & Albus, K. (1999). "Attachment and Psychopathology in Adulthood". In J.
Cassidy; P. Shaver. Handbook of Attachment. NY: Guilford Press. pp. 497–519. ISBN 1-57230-826-5.
15
Briere J, Elliott DM (April 1993). "Sexual abuse, family environment, and psychological symptoms: on the
validity of statistical control". Journal of Consulting and Clinical Psychology. 

Page | 14
Studies have found that 51% to 79% of sexually abused children exhibit psychological
symptoms. The risk of harm is greater if the abuser is a relative, if the abuse involves
intercourse or attempted intercourse, or if threats or force are used. The level of harm may
also be affected by various factors such as penetration, duration and frequency of abuse, and
use of force. The social stigma of child sexual abuse may compound the psychological harm
to children, and adverse outcomes are less likely for abused children who have supportive
family environments.

14.1.1. Posttraumatic stress disorder

Child abuse, including sexual abuse, especially chronic abuse starting at early ages, has been
found to be related to the development of high levels of dissociative symptoms, which
includes amnesia for abuse memories. When severe sexual abuse (penetration, several
perpetrators, lasting more than one year) had occurred, dissociative symptoms were even
more prominent.

Besides dissociative identity disorder (DID) and posttraumatic stress disorder (PTSD),
child sexual abuse survivors may present borderline personality disorder (BPD) and eating
disorders such as bulimia nervosa.

14.1.2. Research factors

Because child sexual abuse often occurs alongside other possibly confounding variables, such
as poor family environment and physical abuse, some scholars argue it is important to control
for those variables in studies which measure the effects of sexual abuse. In a 1998 review of
related literature, Martin and Fleming state "The hypothesis advanced in this paper is that, in
most cases, the fundamental damage inflicted by child sexual abuse is due to the child's
developing capacities for trust, intimacy, agency and sexuality, and that many of the mental
health problems of adult life associated with histories of child sexual abuse are second-order
effects." Other studies have found an independent association of child sexual abuse with
adverse psychological outcomes.

Kendler et al. (2000) found that most of the relationship between severe forms of
child sexual abuse and adult psychopathology in their sample could not be explained by
family discord, because the effect size of this association decreased only slightly after they
controlled for possible confounding variables.

Page | 15
Their examination of a small sample of CSA-discordant twins also supported a causal link
between child sexual abuse and adult psychopathology; the CSA-exposed subjects had a
consistently higher risk for psychopathologic disorders than their CSA non-exposed twins.

A 1998 meta-analysis by Bruce Rind et al. generated controversy by suggesting that

child sexual abuse does not always cause pervasive harm, that some college students reported
such encounters as positive experiences and that the extent of psychological damage depends
on whether or not the child described the encounter as "consensual."The study was criticized
for flawed methodology and conclusions. The US Congress condemned the study for its
conclusions and for providing material used by pedophile organizations to justify their
activities.

14.2. Physical effects

14.2.1. Injury

Depending on the age and size of the child, and the degree of force used, child sexual abuse
may cause internal lacerations and bleeding. In severe cases, damage to internal organs may
occur, which, in some cases, may cause death.

14.2.2. Infections

Child sexual abuse may cause infections and sexually transmitted diseases. Due to a lack of
sufficient vaginal fluid, chances of infections can heighten depending on the age and size of
the child. Vaginitis has also been reported.

14.2.3. Neurological damage

Research has shown that traumatic stress, including stress caused by sexual abuse, causes
notable changes in brain functioning and development. 16 Various studies have suggested that
severe child sexual abuse may have a deleterious effect on brain development. Ito et al.
16
Maia Szalavitz; Perry, Bruce (2006). The boy who was raised as a dog: and other stories from a child
psychiatrist's notebook: what traumatized children can teach us about loss, love and healing. New York: Basic
Books. ISBN 0-465-05652-0.

Page | 16
(1998) found "reversed hemispheric asymmetry and greater left hemisphere coherence in
abused subjects;" Teicher et al. (1993) found that an increased likelihood of "ictal temporal
lobe epilepsy-like symptoms" in abused subjects; Anderson et al. (2002) recorded abnormal
transverse relaxation time in the cerebellar vermis of adults sexually abused in childhood;
Teicher et al. (1993) found that child sexual abuse was associated with a reduced corpus
callosum area; various studies have found an association of reduced volume of the left
hippocampus with child sexual abuse; and Ito et al. (1993) found increased
electrophysiological abnormalities in sexually abused children.

Some studies indicate that sexual or physical abuse in children can lead to the over
excitation of an undeveloped limbic system. Teicher et al. (1993) used the "Limbic System
Checklist-33" to measure ictal temporal lobe epilepsy-like symptoms in 253 adults. Reports
of child sexual abuse were associated with a 49% increase to LSCL-33 scores, 11% higher
than the associated increase of self-reported physical abuse. Reports of both physical and
sexual abuse were associated with a 113% increase. Male and female victims were similarly
affected.

Navalta et al. (2006) found that the self-reported math Scholastic Aptitude Test scores
of their sample of women with a history of repeated child sexual abuse were significantly
lower than the self-reported math SAT scores of their non-abused sample. Because the
abused subjects' verbal SAT scores were high, they hypothesized that the low math SAT
scores could "stem from a defect in hemispheric integration." They also found a strong
association between short-term memory impairments for all categories tested (verbal, visual,
and global) and the duration of the abuse.17

15-Forms of Child sexual abuse

Child sexual abuse includes a variety of sexual offenses, including:

17
Turner, Jeffrey S. (1996). Encyclopedia of relationships across the lifespan. Westport, Conn: Greenwood
Press. p. 92. ISBN 0-313-29576-X.

Page | 17
15.1. Sexual assault – a term defining offenses in which an adult uses a minor for the
purpose of sexual gratification; for example, rape (including sodomy), and sexual penetration
with an object. Most U.S. states include, in their definitions of sexual assault, any penetrative
contact of a minor’s body, however slight, if the contact is performed for the purpose of
sexual gratification.

15.2. Sexual exploitation – a term defining offenses in which an adult victimizes a minor for
advancement, sexual gratification, or profit; for example, prostituting a child, and creating or
trafficking in child pornography.

15.3. Sexual grooming – a term defining the social conduct of a potential child sex offender
who seeks to make a minor more accepting of their advances, for example in an online chat
room.

16-Commercial sexual exploitation

Commercial sexual exploitation of children (CSEC) is defined by the Declaration of the First
World Congress against Commercial Sexual Exploitation of Children, held in Stockholm in
1996, as "sexual abuse by an adult accompanied by remuneration in cash or in kind to the
child or third person(s)."

CSEC usually takes the form of child prostitution or child pornography, and is often
facilitated by child sex tourism. CSEC is particularly a problem in developing countries of
Asia. In recent years, new innovations in technology have facilitated the trade of Internet
child pornography.

Page | 18
 CHAPTER-2

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE

CHILD, 1989 AND CHILD SEXUAL ABUSE

India acceded to the United Nations Convention on the Rights of the Child 1989 (UNCRC) in
1992. This section deals with the rights under UNCRC in sub-section 3.D.1 and the effect of
this Convention on domestic legislation in sub-section 3.D.2. This focuses on internationally
recognised principles to be embodied in Indian law to develop a legal framework against
child sexual abuse, and examines whether the principles in this Convention have been
implemented.

1-The United Nations Convention on the Rights of the Child 1989

(UNCRC)

The United Nations Convention on the Rights of the Child 1989 (UNCRC) is one of the most
widely ratified human rights instruments. Currently, 196 countries are party to it, including
every member of the United Nations except the United States. Its acceptance has resulted in
greater recognition of the fundamental human dignity of all children and draws attention to
the urgency of ensuring their wellbeing and development. The Convention makes clear that a
basic quality of life is the right of all children. The UN General Assembly adopted the
Convention and opened it for signature on 20 November 1989. It came into force on 2
September 1990. Governments of countries under the Convention are required to report to,
and appear before, the United Nations Committee on the Rights of the Child periodically to
be examined on their progress with regards to the advancement of the implementation of the
Convention and the status of child rights in their country.

India acceded to the UNCRC on 11 December 1992, with certain reservations on

issues relating to child labour. The National Commission on Child Rights and the State
Commissions on Child Rights are statutory bodies charged with ensuring justice in the area of
child rights in India.

Page | 19
Various rights of children are protected by the UNCRC which can be understood in the
context of rights of the child against sexual abuse. Some provisions have been selected based
on their importance to this thesis. These Articles depict internationally recognised principles
on child sexual abuse that need to be adopted into Indian domestic law. Comments have been
made on how far the provision has been implemented:

Article 1 -

“For the purposes of the present Convention, a child means every human being below the age
of eighteen years unless under the law applicable to the child, majority is attained earlier.”

The age of the child is relevant with regard to the age of consent and child marriage.
Indian law fixes the age of consent to sexual activities as 18, age of marriage of girls as 18,
and the age of boys as 21. While legislation prohibits child marriage, it does not make the
marriage void ab initio. A Supreme Court ruling making registration of marriages
compulsory attempts to curb child marriage, but without proper enforcement methods the
problem continues.

Article 12 -

1. States Parties shall assure to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any
judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of
national law.

The State is obligated to make provisions ensure a child is free to express his own
views in accordance with his age and maturity. Such a child shall be given an opportunity to
be heard before any judicial and administrative proceedings affecting the child. This is
particularly relevant in judicial proceedings involving relationships, when the age of consent
has been fixed at 18 under the POCSO.

Page | 20
Article 19 -

1. States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in
the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the
establishment of social programmes to provide necessary support for the child and for those
who have the care of the child, as well as for other forms of prevention and for identification,
reporting, referral, investigation, treatment and follow-up of instances of child maltreatment
described heretofore, and, as appropriate, for judicial involvement.

The Committee on the Rights of the Child (2011) defines sexual abuse and exploitation to
include:

(a) The inducement or coercion of a child to engage in any unlawful or psychologically

harmful sexual activity;

(b) The use of children in commercial sexual exploitation; and

(c) The use of children in audio or visual images of child sexual abuse; (d) Child prostitution,
sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between
countries) and sale of children for sexual purposes and forced marriage. Many children
experience sexual victimization which is not accompanied by physical force or restraint but
which is nonetheless psychologically intrusive, exploitive and traumatic.

The Committee on the Rights of the Child (2011) states that sexual abuse comprises any
sexual activities imposed by an adult on a child, against which the child is entitled to
protection by criminal law. Sexual activities are also considered as abuse when committed
against a child by another child, if the child offender is significantly older than the child
victim or uses power, threat or other means of pressure. Sexual activities between children
are not considered as sexual abuse if the children are older than the age limit defined by the
State party for consensual sexual activities.

Page | 21
This provision demands India take measures to protect children from sexual abuse.
Legislative measures have been taken through the POCSO. A national programme called the
Integrated Child Protection Scheme (ICPS) is being implemented at district, state and
national levels in order to facilitate social systems for curbing child abuse.18

Article 34 -

States Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse. For these purposes, States Parties shall in particular take all appropriate national,
bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials.

India must protect its children from all types of sexual exploitation and abuse. This provision
in the Convention is augmented by the Optional Protocol on the Sale of Children, Child
Prostitution and Child Pornography, which was signed by India on 15 November 2004 and
ratified on 16 August 2005. The POCSO is national legislation for protection of children
against sexual abuse, including the exploitative use of children in pornographic performances
and materials.

This provision is relevant in the case of child offenders below the age of 18who have
engaged in sexual activities. The Juvenile Justice (Care and Protection of Children) Act 2000
created a separate system for the trial of child offenders below the age of 18. Chapter 3 of this
thesis discusses the issue of age of consent for sexual activities. Sub-section outlines the
relevant provisions in the UNCRC, which have, to a large extent, been adopted either by
legislation or by case law in the case of child sexual abuse.

18
The Integrated Child Protection Scheme (ICPS) is a national programme run in collaboration with the
UNICEF, intended to create a safe and secure environment in the country for comprehensive development of
children in need of care and protection, children in conflict and contact with law, and any other vulnerable child
such as children of migrant families, children of prisoners, children of women in prostitution, working children,
children living on the streets, trafficked or sexually exploited children, etc. The Scheme, since its launch in 2009
by the Central Government in partnership with State Governments and Union Territories, has, among other
things, enhanced infrastructure for child protection services and provided financial assistance in implementing
the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000. See Ministry of Women and
Child Development, Government of India, Revised Integrated Child Protection Scheme (2014) at p. 7.
http://wcd.nic.in/icpsmon/pdf/icps/final_icps.pdf.

Page | 22
2-The domestic effect of UNCRC provisions on sexual abuse in India

The legal basis upon which the UNCRC is adopted into domestic legislation varies from
country to country. It is necessary to understand how international law is adopted into Indian
law to find out the domestic effect of the UNCRC provisions on sexual abuse.

In Jolly George v. Bank of Cochin,19 it was explained that India follows the dualist
theory in adoption of international law. This means that treaties must be implemented by
statute before their provisions may be given effect by the courts.
Ratification/Accession/Adoption of an international treaty does not automatically cause the
treaty to be incorporated into national law, as in monist states. International law must be
translated into national law, and existing national law that contradicts international law must
be modified or eliminated in order to conform to international law.

In India, the implementation of international law takes place in three ways:20

1. Article 73(1) of the Indian Constitution confers upon the government of India executive
powers over all subjects in which the Parliament has legislative competence, which
includes the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement, under Articles 246 and 253
read with Entry 14 of List I of the Seventh Schedule of the Indian Constitution.

2. Where the implementation of a treaty requires legislation, the Parliament has exclusive
legislative powers to enact a statute or legislation under Article 253 of the Indian
Constitution. Article 253 empowers the Parliament to make any law, for the whole or any
part of the territory, for implementing international instruments. Legislation is required to
give effect to a treaty where it provides for payment of money to a foreign power, 21 where
justifiable rights of the citizens or others are restricted or infringed, 22 where laws of the
State are modified, where implementation of a treaty would involve cession of Indian
territory to a foreign power, but not when it merely involves the settlement of a boundary
dispute not involving cession.

19
AIR 1980 SC 470
20
Agarwal, S.K. (2010). Implementation of International Law in India: Role of Judiciary. SSRN Electronic
Journal. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1864489.
21
Union of India v Manmull Jain AIR 1954 Cal. 615.
22
Maganbhai Ishwarbhai Patel v Union of India AIR 1969 SC 783.

Page | 23
3. Article 51 (c) of the Constitution is a directive principle of state policy which enjoins the
State to endeavour to foster respect for international law, and treaty obligations in the
dealings of organized peoples with one another. Though a non-justifiable right, this
Constitutional provision has been used by the judiciary in a plethora of cases interpreting
India’s obligations under international laws when adjudicating on cases affecting human
rights.23

These provisions portray the constitutional basis for the adoption of international obligations
into municipal law in India. With regard to the implementation of the UNCRC from the time
it was acceded to in 1992 various measures have been taken by Parliament – such as
repealing the existing Juvenile Justice Act 1986 and enacting the Juvenile Justice (Care and
Protection of Children) Act 2000 to bring juvenile justice law in conformity with
international obligations; the adoption of free and compulsory education for the age group of
6–14 years by insertion of Article 21A into the Indian Constitution in 2002;the resultant
legislation of the Right of Children to Free and Compulsory Education Act 2009 and the
POCSO, which proclaims in its Preamble the adherence to India’s international obligations
under the UNCRC.

The establishment of the National Commission on Protection of Child Rights in 2007

as per the Commission for Protection of Child Rights Act 2005 demonstrates India’s
commitment to upholding its international commitments under the UNCRC. The
Commission is entrusted with the duty of ensuring that all laws, policies, programmes, and
administrative mechanisms are in consonance with the child rights perspective as dictated by
the Constitution and the UNCRC. In addition, the Commission produces and disseminates
information about child rights, takes suo-motu cognizance of violation of rights, and compiles
and analyses data on children. Recent statutory obligations under the 2009 and 2012 special
statutes include the monitoring of the fundamental right to free and compulsory education, as
well as monitoring and coordinating the institutions that deal with protection of children
against sexual offences, respectively. As per the Commission for Protection of Child Rights
Act 2005, the states have legal obligation to set up state commissions for the protection of
child rights in each state. In 2007, the states of Karnataka and Goa established their state
commissions. In 2013, Kerala established the Kerala State Commission for the Protection of
Child Rights.

Nilabati Behera v State of Orissa AIR 1993 SC 1960; D.K. Basu v State of W.B AIR 1997 SC 610; People’s
23

Union for Civil Liberties v. Union of India AIR 1997 SC 1203 etc.

Page | 24
 CHAPTER-3

INDIA: THE SOCIO-CULTURAL CONTEXT OF CHILD

SEXUAL ABUSE

In India, child sexual abuse occurs both within and beyond the family system. The problem
of child sexual abuse extends into India's early history and is considered a deep-rooted
societal concern. Although child sexual abuse is a major concern in India, there is an
inadequate amount of research that has specially examined child sexual abuse in Indian
children and the relevant cultural factors. A significant number of India's children are at-risk
for sexual trauma or already suffering the negative ramifications of abuse.

Reviews of Indian publications by Carson et al. (2014) on the factors which help
perpetrate child sexual abuse show eight results. First, sexual abuse does not always occur in
isolation and may include other forms of child maltreatment. Second, although girls have
higher prevalence rates of sexual abuse and may be unprotected by their family members,
boys are also victims of sexual abuse and may experience significant difficulty disclosing
their experiences due to feelings of shame. Third, some studies have noted the correlation
between sexual abuse and poverty, yet child sexual abuse occurs in families of all socio-
economic levels, and social isolation may be an even greater risk factor. Fourth, studies
indicate that many victims of child sexual abuse are traumatized by their experiences and
may suffer both short and long-term ramifications of their abuse.

Fifth, counselling is usually effective in helping children reduce their trauma-related

symptoms and improve their well-being. Sixth, adults must be mandated to properly report
sexual abuse, as family secrecy about child sexual abuse is harmful to victims. Seventh, the
rights of children should be made a priority by the government and individual citizens, so
prevention initiatives that include education about child maltreatment must occur on multiple
levels (family, community, state, and national). Seventh, laws need to be improved to protect
children and hold offenders accountable. Eighth, government organizations and non-
governmental organisations must make both intervention and prevention services a priority.

Page | 25
The 2007 MWCD Report states that harmful traditional practices like child marriage, the
caste system, discrimination against the female child, child labour and the Devadasi
tradition24 increase the vulnerability of Indian children to abuse and neglect. Beinart (2011)
reviews publications that state different cultural practices have been developed to protect a
girl’s virginity because female virginity before marriage is prized in India. These cultural
practices include child marriage, segregating the sexes except in situations that can be
observed by elders, and opposing marriage with a non-virgin female. Most Indians believe
that families and communities – as opposed to the government – are responsible for the care
and protection of children.

A review of 44 publications, including publications on India, regarding the incidence

and characteristics of all forms of child sexual assault in low and middle income countries
since 1980 identified child sexual abuse at all levels of society in nearly every region and
continent of the world.

The difficulty in researching and discussing child sexual abuse were due to the
sensitive and taboo nature of the topic, difficulty of accurate measurement, barriers to
reporting, barriers to justice, and the false perception of child sexual abuse as a new
phenomenon. Early marriage, human trafficking, sexual coercion, forced first sex, and males
as victims were identified as characteristics and topics placing individuals at risk for child
sexual abuse, with poverty and its resultant social or family strain as exacerbating factors.

The existing studies indicate crimes against children in India, as in other parts of the
world, are vastly underreported. Current estimates assert that between 18% and 50% of
India’s children have experienced some form of child sexual abuse, with girls reporting
higher incidence than boys. The statistics are conservative as many children do not disclose
their abuse, and those who do may not be protected or believed. Thus, there is general
agreement that child maltreatment, including sexual abuse, is much more widespread than
what is commonly reported or recognized.

24
Devadasi system in India is a religious practice in the states of Maharashtra, Karnataka, and Andhra Pradesh,
Orissa and Tamil Nadu, whereby parents dedicate a daughter to worship and service of a Hindu deity for the rest
of her life. The marriage usually occurs before the girl reaches puberty and requires the girl to become a
prostitute for upper-caste community members. They are forbidden to enter into a real marriage.

Page | 26
1-The 2007 MWCD Report on Child Abuse in India: a socio-cultural
context

The first government effort to identify child abuse statistics nationally was the National Study
on Child Abuse conducted in 2007 by the Ministry of Women and Child Development, with
the support of UNICEF, Save the Children, and Prayas. This study covered 13 states in India
and a sample size of 12,447 children, and is considered to be one of the largest empirical in
country studies of its kind in the world. The study aimed at developing a dependable and
comprehensive understanding of the phenomenon of child abuse, in order to facilitate
forming appropriate policies and programmes for curbing and controlling of the problem.
This report was able to garner strong public opinion which helped to propel the enactment of
special legislation pertaining to sexual offences against children in India in 2012. The key
findings of the 2007 MWCD Report are as follows:

1. 53.22% children reported having faced one or more forms of sexual abuse that included
both “severe” and “other forms”.

2. Statistics on the gender percentage of children reporting sexual abuse show that 52.94%
were boys and 47.06% girls. Nine out of 13 states reported higher percentage of sexual abuse
among boys as compared to girls, with Delhi reporting 65.64% boys to 34.36% girls. Kerala
had statistics of 55.04% boys to 44.96% girls, while Goa had statistics of 52.27% boys to
47.73% girls.

3. The age distribution of children reporting sexual abuse showed that although the abuse
started at the age of 5 years, it gained momentum 10 years onward, peaking at 12 to 15 years
and then starting to decline.

4. 21.90% of children faced severe forms of sexual abuse and 50.76% faced other forms of
sexual abuse.

5. 5.69% of children reported being sexually assaulted.

6. Children on the street, children at work and children in institutional care reported the
highest incidence of sexual assault.

7. 50% abuses are persons known to the child or in a position of trust and responsibility.

8. Most children did not report the matter to anyone.

Page | 27
The MWCD Report identified children between the ages of 5–18 on the basis of five
categories of children: children in family environment, not attending school; children in
schools; children in institutional care; working children; and street children. Chapter IV of the
MWCD Report deals with the profile of the respondents and their socio-demographic
background. It extensively provides for gender and age distribution of data. But examination
of the nature of child sexual abuse in the socio-cultural context of class and religion is
difficult, as adequate data regarding these is unavailable in this Report or elsewhere.

2-Gender and age

The study sample of 12,447 children was almost equally divided between boys and girls:
51.9% were boys and 48.1% were girls. The Report provides clear data regarding child abuse
from a gender and age perspective with regard to the five categories identified: children in
family environment, not attending school,25 children in schools,26 children in institutional
care, 27 children at work28 and children on the streets.
25
Out of the total sample, 18.04% of children were in this evidence group. 52.38% of these children were boys
and the remaining girls. 50.59% children in this evidence group were in the age group of 5–12 years; 2.54% in
the age group of 13–14; and 26.77% in the age group of 15–18 years. In the age group of 5–12 years, 53.95% of
these children were boys, while 54.15% of children in the age group of 13–14 years and 47.92% children in the
age group of 15–18 years were boys.
26
Out of the total child respondents, 25.41% were children in schools, of which 49.76% were boys and 50.24%
were girls. Across the states, the sample size of boys and girls was approximately 50:50 with a 10% variance.
41.54% of children in this evidence group were in the age group of 5–12 years, while 32.98% of children were
in the age group of 13–14 years and 25.48% of children were in the age group of 15–18 years. In the age group
of 5–12 years, 50.61% children were girls, while 55.80% of children in the age group of 13–14 years and
42.43% of children in the age group of 15–18 years were girls.
27
Out of the total sample, 18.04% of children were in this evidence group. Among the child respondents in
institutions, 29.54% were from children's homes (46.33% boys, 53.67% girls) followed by 25.97% from shelter
homes (57.04% boys, 42.96% girls), 24.89% from other homes (50.09% boys, 49.91% girls), 10.75% special
homes (52.52% boys, 47.48% girls) and 8.85% (72.45% boys, 27.55% girls) were from observation homes.
45.48% of children in this evidence group were in the age group of 5–12 years, while 29.84% of children were
in the age group of 13–14 years and 24.68% of children were in the age group of 15–18 years. In the age group
of 5–12 years, 54.16% of children were boys, while 50.45% of children in the age group of 13–14 years and
53.61% of children in the age group of 15–18 years were boys. From the sample size, the gender and age-wise
break-up of the number of children in need of care and protection in institutions (children's homes, shelter
homes and other homes) showed that children as young as 5, 6, 7 and 8 years old were languishing in
institutions. The number of girls in institution rose in the early teenage years. The Report attributes this fact to
girls in this age group being more vulnerable and also trafficked for commercial sexual exploitation and child
domestic work. Analysis shows that, barring the ages of 11 and 12 years, the number of boys in conflict with the
law was much higher than that of girls.
28
Out of the total sample, 19.90% of children were in this evidence group. 50.30% of these children were boys
and the remaining girls. 34.68% of children in this evidence group were in the age group of 5–12 years,
while2.85% of children were in the age group of 13–14 years and 42.47% of children were in the age group of

Page | 28
Interestingly, the MWCD Report states that the gender and age distribution of children on the
street indicated two significant findings: first, that girls of all age groups are also living on the
streets rendering them vulnerable to abuse and exploitation; second, the number of boys
living on the streets is larger than that of girls. 29 As discussed earlier, the Report shows that
boys had a higher rate of sexual abuse than girls.

3-Religion and caste

Of these child respondents, 71.4% were Hindus, 14.2% Muslims, 12.7% Christians and 1.7%
from other religious backgrounds. Among Hindus, 25.4% children were from Scheduled
Castes (SCs), 15.1% from the Scheduled Tribes (STs) and 29.2% from the Other Backward
Classes (OBCs).

The MWCD Report does not provide data regarding its respondents on the basis of
caste and religion. Hence no analysis about the nature of child sexual abuse based on religion
is possible.

4-Class

The MWCD Report does not make any reference to the economic background of the
identified child respondents based on the five identified categories mentioned previously. The
Report does not give any sociological data on non-school going children who live within a
family environment. Hence it is impossible to determine their socio-economic background.

With regard to children who go to schools, the total percentage of children going to
government schools was 55.54%, private schools was 26.29%, NGO-run schools 14.91%,
and 3.26% in other schools (namely, schools run by charitable organizations and religious

15–18 years. In the age group of 5 to 12 years, 51.92% of children were girls, while 52.30% of children in the
age group of 13–14 years and 46.48% of children in the age group of 15–18 years were girls. Among all the
children in this evidence group, 23.16% were child domestic workers, 11.21% were working in tea kiosks and
restaurants, 7.83% were engaged in bidi rolling and the remaining were working in 'other' occupations such as
lock making, carpet weaving, construction, shops, artisans, etc.
29
60.94% of children in the evidence group were in the age group of 5–12 years, while 19.90% children were in
the age group of 13–14 years and 19.16% children were in the age group of 15–18 years. In the age group of 5–
12 years, 53.97% of children were boys, while 55.31% of children were in the age group of 13–14 years and
59.68% of children in the age group of 15–18 years were boys.

Page | 29
bodies).It is clear from the data provided by this Report that demarcation of the respondents
based on socio-economic class is not possible here, either.

The same applies to data regarding children in institutional care. However, this
researcher would categorise this group of child respondents to belonging to the lower
economic strata of society. It is usually neglected children from poverty stricken backgrounds
with no protective familial network who end up being in conflict with law. Children from
middle class and upper middle class families in India are never allowed by the protective
social network to face the criminal justice system. The institutions for children in conflict
with law are the observation homes and special homes. The institutions for children in need
of care and protection are called shelter homes and children’s homes, which house children
who are rescued from child trafficking for prostitution or domestic work. These children are
generally trafficked with the active consent of their family members, who belong to
impoverished backgrounds, and sell their offspring for economic enrichment. The MWCD
Report fleetingly refers to this aspect. Children at work as well as children who live in streets
are the last two categories mentioned in the Report. Thus a perusal of data provided from the
Report leads to the inference that these respondents belong to the lowest economic strata of
society.

5-Statistics on Chhattisgarh

Though Chhattisgarh hugs fourth rung in rogue's gallery on crime against children in 2014
contributing to 4.9% to all-India figure, shocking numbers of incidents have been registered
under Protection of Children against Sexual Offences Act (POCSO) since its inception. On an
average, three children are sexually molested everyday in Chhattisgarh. Times of India
accessed data of incidents registered under POCSO in state from November 2012 to March
2015, according to which 2,708 cases were reported from 27 districts for child molestation.
State capital recorded maximum number of 288 cases under POCSO, followed by Durg with
256 cases while 190 incidents were reported in Raigarh district. Among the vulnerable
remote districts, Koriya recorded 165 cases, followed by Jashpur district with 157 incidents
of child assault. Incidentally, of 2708 cases registered, accused in only 193 incidents have
gone behind the bars while, of 2,377 cases presented before court, 1,732 are still pending and
alleged accused in 452 cases have been acquitted. The situation not only calls for justice

Page | 30
through fast-track courts, but creating awareness about newly formed Act among children
and parents. Besides, proper training to police officials for imposing appropriate sections of
the Act is also essential.

According to data compiled by NCRB for 2015, 8,800 cases of rape on children were
registered across the country under the Protection of Children against Sexual Offences Act
(POCSO). The number of cases registered for child abuse raised from 8,904 in the year 2014
to 14,913 in the year 2015, under the POSCO Act. Sexual offences and kidnapping  account
for 81% of the crimes against minors Indicating the extent of exploitation involved in child
labour, latest government statistics show that over 25 per cent of rapes on children last year
were committed by their employers and co-workers. According to data compiled by the
National Crime Records Bureau (NCRB) for 2015, 8,800 cases of rape on children were
registered across the country under the Protection of Children against Sexual Offences Act
(POCSO). In 2,227 cases, or 25.3 per cent, the offenders were found to be employers or co-
workers. This is the first time that NCRB has tabulated data in terms of the relationship of the
victim and the accused in cases involving rape. The data also shows that less than two per
cent of rapes committed on women in 2015 happened at the workplace. In the case of
children, the data reveals:

Page | 31
 Neighbours were the biggest abusers in such cases in 2015 — 3,149 (35.8%).
 In over 10 per cent of cases last year, children were subjected to rape by their own family
members or relatives.
 In 94.8 per cent of cases, children were subjected to rape by someone known to them.
 14,913 cases were registered under POCSO in 2015.

A similar set of data on women in 2015, compiled by the NCRB, shows that they were most
vulnerable to assault by neighbours and those promising marriage.
 In 27.4 per cent of rape cases, the offenders were neighbours.
 In 22 per cent of cases, the offenders promised to marry the women but did not.
 In nine per cent of cases, women were subjected to rape by close family members and
relatives.
 In 95.5 per cent of rape cases, the offenders were known to the women.

In a state-wise break-up, Tamil Nadu (55 per cent) and Gujarat (over 49 per cent) had
the most number of cases of sexual abuse against children at the workplace. The data also
shows law enforcers in poor light. In 2015, only 251 cases of child labour were registered
across the country in which 449 children were rescued. The data on overall crime against
women shows Delhi at the top with 17,104 cases, and a crime rate of 184.3, and Assam with
23,258 cases and a rate of 148.2. Crime rate refers to the number of incidents per one lakh
population of the subject group. In the case of children, too, Delhi leads the way with 9,489
cases and a crime rate of 169.4. Among larger states, Madhya Pradesh comes close with
12,859 cases and a rate of 42.8. Uttar Pradesh led the highest number of child abuse cases
(3,078) followed by Madhya Pradesh (1,687 cases), Tamil Nadu (1,544 cases), Karnataka
(1,480 cases) and Gujarat (1,416 cases).

Page | 32
Mr. Satyarthi said of the 15,000 criminal cases in the State, nearly 4,800 cases have been
registered under the Protection of Children from Sexual Offences (POCSO) Act. There is
90% pendency of such cases across India. Only in 4 per cent cases have the perpetrators been
awarded a punishment. In six per cent cases, perpetrators have secured release. The
remaining 90 per cent cases are pending.

Page | 33
As many as 557 women were subjected to rape at the hands of their employers or co-workers.
In 705 cases, victims accused their live-in partners or former separated husbands of having
raped them, the data shows. Last year also witnessed an overall dip in crime against women
and an increase in the case of children. There were 3, 27,394 cases registered under crimes
against women as compared to 3, 37,922 cases in 2014, a dip of 3.1 per cent. But crime
against children spiked by 5.3 per cent, from 89,423 in 2014 to 94,172 in 2015. Kidnapping
and abduction constituted 44.5 per cent of crimes against children last year. According to the
NCRB data, 34,651 rape cases were registered across the country in 2015. In 488 cases, the
victim was raped by her grandfather, father, brother or son. Close family members were the
offenders in 891 cases and relatives in 1,788 cases.

Page | 34
 CHAPTER-4

CHILD SEXUAL ABUSE AND THE LAW IN INDIA

Historically, child sexual abuse (CSA) has been a hidden problem in India, largely ignored in
public discourse and by the criminal justice system. Until recently, CSA was not
acknowledged as a criminal offence; rape was the main, if not the only, specific sexual
offence against children recognised by law in India. In the absence of specific legislation, a
range of offensive behaviours such as child sexual assault (not amounting to rape),
harassment, and exploitation for pornography were never legally sanctioned. In the past few
years activists, Non-Governmental Organisations (NGOs) and the central government’s
Ministry of Women and Child Development have actively engaged in helping break ‘the
conspiracy of silence’ and have generated substantial political and popular momentum to
address the issue. The movement, spearheaded by the Ministry of Women and Child
Development, led to the enactment of new legislation called the Protection of Children from
Sexual Offences (POCSO) 2012. This commentary highlights the distinguishing features of
POCSO and focuses on three issues that might have consequences for how the law operates
in reality. In this reflexive piece, we begin by briefly discussing the prevalence of CSA in
India and the legal response to it.

1-CSA in India

Growing concerns about female infanticide, child rapes and institutional abuse of children led
to the commissioning of the first large scale government sponsored research study to assess
the extent and nature of child abuse in India. The study, based on a well-designed
methodology, covered 13 states (two states from each of the six geographic zones in the
country) including states with the highest through to the lowest crime rates in offences
against children. The sample was purposive and included 12,447 children, 2324 young adults
and 2449 stakeholders representing five different evidence groups: children in the family, at
the workplace, in schools, on the streets and in institutions. The study reported widespread
emotional, physical, and sexual abuse prevalent in all the states surveyed.

Page | 35
While every second child reported emotional abuse, 69 % (n = 12,447) reported physical
abuse, and 53 % (n = 12,447) reportedly experienced some form of sexual abuse. Half of
sexual abuses reported were committed by “persons known to the child or in a position of
trust and responsibility”. Carson et al. (2013) survey of the current state of knowledge on
CSA in India concluded that empirical studies report a much higher incidence of CSA than
previously acknowledged by authorities or by families. The paper summarises the findings of
several studies and reports that 18–20 % of CSA occurs in the family and around 50 % in
institutional settings. Further, there is regional and rural–urban variation in the rates and
extent of CSA in the country. Girls are more vulnerable to sexual abuse, although boys too
reported a high percentage of victimisation and are subject to greater social stigma.

Finally, Carson et al. (2013) suggest that although sexual exploitation and abuse is
strongly correlated to poverty, it occurs in families across the socioeconomic and religious
spectrum. However, factors that facilitate CSA, such as poverty, overcrowding, extended
family living arrangements, abundance of street children, and lack of recreational facilities in
families are by no means exclusive to India. Admittedly, their impact might be exaggerated
or intensified given the population density and size in India. Thus, a complex mix of
individual, ecological and situational factors that are said to facilitate CSA might account for
its prevalence in the Indian context. However, the absence of empirical research precludes
definitive conclusions.

Sexually abused children are severely let down by systemic failure of the criminal
justice system to redress their grievances and by social ostracism associated with such abuse.
Only 3 % of CSA offences uncovered by Kacker et al. (2007) study were reported to the
police. It is unsurprising that CSA is severely underreported given the shame and associated
socio-cultural stigma, especially if the abuse is in the context of the family. This phenomenon
is not unique to India but common to collectivist cultures in other Asian countries where an
individual’s experience is ignored so as to protect the family from shame associated with
sexual abuse.

Page | 36
2-Is Child Sexual Abuse a reality in India?

It is difficult to come out as a survivor of sexual abuse in a society where blaming the victim
is the norm. In this light, child sexual abuse is an issue which is usually not paid much
attention to. This is evident from the fact that there was no law in India against Child Sexual
Abuse until 2012 and the law in itself remains quite ineffective in addressing this sensitive
issue. It is appalling to see that in a report by Ministry of Women and Child Development in
India, 53% of children are victims of child sexual abuse in India. Globally speaking, India
ranks second in terms of the highest rate of child sexual abuse. What is more worrying is the
fact that mostly child sexual abuse is incestuous in nature which means that it is committed
by a person who is a family member and has an easy access to the child. In order to examine
the incidence of sexual abuse among child respondents, the questionnaire was administered to
12,447 children belonging to the five different categories including children in family
environment, children in schools, children in institutions, children at work and street children.

Page | 37
1. One in every two children interviewed (53.22%) reported being victims of one or more
forms of sexual abuse that included severe and other forms. More than half (52.94%) of
those who reported abuse were boys while 47.06% were girls.
2. 90% of children reported being subject to severe forms of sexual abuse that included
sexual assault, making the child fondle private parts, making the child exhibit private
body parts and being photographed in the nude. Of these, a majority (57.3%) were boys.
3. Half (50.7%) the children were subjected to other forms of sexual abuse that included
forcible kissing, sexual advances made during travel and marriages and exposure to
pornographic materials. Once again, more than half the survivors (53.07%) were boys.

Of all the children reporting sexual assault (penetration of the anus, vagina or oral sex),
54.4% were boys.

Children Reporting Forms of Sexual Abuse – Gender wise Breakdown:-

1. Out of the total child respondents, 14.5% reported incidents when someone made them
fondle or touch their private body parts. Among these children, a majority (58.40%) were
boys.

Page | 38
2. 12.6% of children reported that someone forced them to show or exhibit their private
body parts. Of these, a majority (60.25%) were boys.

When asked about whether anyone has shown or exhibited them his/her private body parts,
16.97% out of the total child respondents admitted such incidents taking place with them.
Once again, a majority (55.58%) were boys.

3-Key Studies of Child Sexual Abuse in India

This section provides a review of major findings from five recent investigations of child
sexual abuse in India which are presented in chronological order. The first study conducted
by Pagare (2003) investigated the maltreatment histories of 72 boys in an Observation Home
in Delhi, which is 1 of over 700 juvenile justice homes in India. In the study, 38.1% of the
boys disclosed a history of sexual abuse, with most perpetrators unknown to the victims.
Signs of physical abuse were observed in 23.8% of the sample, and behavioural and
emotional challenges were evident in 16.3% of the boys. The relatively few symptoms noted
might be explained by boys' efforts to conceal their symptoms to avoid the stigma and social
ostracism that can be experienced by male victims.

The second study, conducted by Chatterjee, Chakraborty, Srivastava, and Deb (2006)
in Kolkata examined characteristics of sexually trafficked children. The authors stated that
these children experienced a host of mental, physical, and social challenges. Specifically,
depression, loss of interest in daily living, and loneliness were noted. Furthermore, 14.6% of
the children in the study had HIV/AIDS. Many children faced rejection by their family
members and communities. Previous research has documented that due to the lack of
adequate medical and mental health care; many children do not receive treatment and thus
experience the long term ramifications of severe psychological trauma, which can impact
multiple domains.

The third study, the national Study on Child Abuse India, was supported by the
Government of India and initiated so that a more accurate and comprehensive understanding
of child abuse and neglect could be gained. Various forms of abuse, including child sexual
abuse, were examined in two states from each of the major geographic regions of India
(North, South, East, West, Central and Northeast, as well as the city of Mumbai). The study

Page | 39
included children (5-18 years) and young adults (18-24 years). This report provides a great
deal of specific descriptive information about various forms and expressions of sexual abuse
among children and youth in India.

Two-thirds of children served disclosed sexual abuse (205,438). Nearly 20% of children

served disclosed physical abuse (60,897). 211,831 children received on-site forensic
interviewing at a Children’s Advocacy Centre

Page | 40
Of those alleged to have abused children, nearly a quarter were themselves children. Almost
40% were a parent or caregiver of the child victim. Fully 90% of alleged abusers were
related in some way to the child.

Eight significant findings about child abuse and neglect emerged from the Study on
Child Abuse in India. To start, the youngest children in the sample (ages 5 to 12) reported the
highest levels of abuse; (2) there was no differences in incidence of physical abuse in boys
compared to girls; (3) persons who committed sexual abuse were frequently trusted
individuals who held positions of authority; (4) 70% of victims of CSA never disclosed their
abuse; (5) nearly half (53.2%) of the sample had experienced CSA; (6) 20% of the children
had experienced what was termed severe CSA; (7) the most vulnerable children for CSA
included street children, working children, and children in institutional care; and (8) Andhra
Pradesh, Assam, Bihar and Delhi reported the highest incidences of CSA overall. The
findings are important as they may lead to “..... The formulation of appropriate policies and
programs meant to effectively curb and control the problem of child abuse”.

The fourth study investigated the experiences of sexually abused girls and their families
in Western Madhya Pradesh. The researchers reported that their actions of the girls' families
to the discovery of CSA often caused re-traumatization and hindered their healing process.
Many families, wanting to avoid the stigma of sexual abuse, forced the girls to remain silent
about their experiences. Furthermore, girls were expected to deny their need for medical or
mental health services. Even if legal actions were taken against the perpetrators by law
enforcement, families still expected their daughters to forgive the offender and “forget” the
abuse. Yet, according to Sahay, the girls in the study felt it was impossible to “forgive and
forget”. This study highlighted the complex familial and social factors that influence the well-
being and healing process of female victims of child sexual abuse.

The fifth and final study conducted by Deb and Mukherjee (2011) examined the
psychological, social and emotional adjustment of 120 sexually abused girls (ages 13-18)in
Kolkata, West Bengal who were living in either Observation or Rehabilitation Homes. Of the
girls in the study, 93% were from families living in rural poverty with little education. The
majority (73.3%) of the girls left their homes believing they were going to be married or
provided with a job, only to be sold as sexual slaves (also referred to as child sex workers,
prostitutes, bar girls, dancers). More than half of the sample had been sexually assaulted by
strangers, and one-third reported sexual abuse by their families. Only two girls in the study

Page | 41
reported their sexual abuse to law enforcement, which resulted in no protection or conviction
of the perpetrators.

The experience of abuse correlated with violence in the home, substance abuse, and
maternal employment status (not working).Over half of the girls no longer had
communication with their families. Many of the girls’ families wanted them to return home
upon finding them, yet the majority of girls’ stated that they did not want to return home.
Mental health inventories indicated high levels of depression and anxiety as well as low self-
esteem in the sample. Yet, many of the girls believed that counselling was helpful. The
authors asserted that every rehabilitation and observation home necessitates counsellors with
specialized training in childhood trauma, including sexual abuse. Additionally, programs
must provide children with tools needed for a successful future including vocational and
social skills training.

4-Why is it important to “break the silence” around Child Sexual Abuse?

This issue gained visibility when media hype was created around it. Kalki Koechlin was one
of the first celebrities to break the silence on this issue when she talked about how she was
sexually abused as a child and her biggest fear was that her mother would find out about it
and it will be a cause of utter embarrassment and disgrace for her. This is where the problem
is. Most of us have been sexually violated as children but have always feared coming out in
the open about it because we associate “embarrassment” and “humiliation” with such acts.

The main task is to break away from the taboo to talk about such issues which lead to
violation of basic human rights of children within the so called ‘safe’ vicinity of their homes.

In India, RAHI is an organisation that is involved intensively with mental healing of the
survivors of incest and child sexual abuse. It is involved at various levels that enable the
survivors to have a support mechanism and also to spread awareness regarding CSA. It is a
feminist group that has created a supportive environment for survivors. It goes beyond
‘breaking the silence’ and has developed a powerful voice that strives to mainstream the
discussion about incest and CSA in India and include it in social dialogue. Addressing the
long-term impact of incest and CSA on adult women, RAHI not only forms the backbone of

Page | 42
work on this issue in India but has also brought this issue to light and inspired other groups
working in this area.

It is not only physically traumatic for a child to be abused sexually but also, mentally.
All children are vulnerable to sexual abuse regardless of their age, gender, or where and
whom they live with. This is because children are trusting of all adults and in our society they
are less powerful, less informed and taught to obey elders.

Children try to hide their dreadful ‘secret’ and suffer in silence but usually experience
very strong feelings inside: fear, depression, guilt, shame, betrayal, anger, confusion,
helplessness and despair. As a result of sexual abuse, children also inherently feel dirty,
damaged and different. They are often unable to verbalize these feelings. This is mainly
because they do not know the appropriate language to tell their close ones about it. However,
it is necessary to understand that there should be mechanisms provided by the state in order
for the healing of the survivor since it is something that shapes their sexuality, behaviour and
emotions for life. Following are the ways in which CSA has a long lasting effect on the
survivor:

 Emotional reactions: The survivor could blame themselves for being abused and not
being able to stop it. This often leads to anger around abuse being directed at themselves
or elsewhere, rather than at the abuser. Feelings could also be numbed down. It usually
shows up in anxiety and panic attacks, depression, phobias, body aches and other
ailments. Severe abuse can also sometimes lead to personality disorders.
 Self-perceptions: They tend to believe they are worthless, have very low self-esteem
and are unable to take compliments. They appear to be extremely confident on the
surface but perceive themselves as not good enough. They feel the need to constantly
prove themselves and all this often leads to further victimisation.
 Self-harm: They tend to get into self-destructive behaviours in order to cope. Some of
these behaviours are over-eating, depriving themselves of food, self-mutilation, suicide
attempts and alcohol and drug abuse.
 Powerlessness: They are usually gripped by the feeling of being powerless and not in
control over their surroundings. Therefore, they use a variety of ways to be in charge.
They could be super organised, hyper active and vigilant.
 Physical Effects: Stomach disturbances, frequent illness, gynaecological problems,
aches and pain.

Page | 43
  Sexual Effects: Abuse also leads to a disturbed sexual life for the survivor. Associating
feelings of pain, shame and humiliation with sex and any kind of physical intimacy is
common. It can lead to avoidance of sex as they may experience flashbacks of the abuse
during sex. On the other hand, they can get into indiscriminate sexual activity and also
use their bodies as a way to get power, love and attention.
 Relationships: They feel threatened, so they tend to withdraw from or are
uncomfortable in close relationships or become extremely dependent and clingy. It
makes them vulnerable to further exploitation of themselves and their children.

If children, who are survivors of abuse, are not given the right guidance to get over that
phase of their life, they may turn out to be individuals who would not be able to realize their
full potential in so many ways.

5-Legal response to CSA

Until 2012, the only sexual offences against children recognised by the law were covered by
three sections of the Indian Penal Code (IPC) not specific to children. The only crimes
registered were rape (sexual intercourse without consent—section 376), outraging modesty of
a woman (unspecified acts—section 354) and unnatural acts defined as “carnal intercourse
against the order of nature with any man, woman or animal” (anal sex, homosexuality or
bestiality—section 377). Consequently, other forms of non-penetrative sexual assaults,
harassment and exploitation were not explicitly recognised as crimes and therefore not
recorded (assuming they were reported). Increased activism around child protection issues in
the media and public discourse might partly account for the Government of India passing a
special law called, ‘The Protection of Children from Sexual Offences (POCSO) 2012’. This
Act criminalises sexual assault, sexual harassment, and pornography involving a child (less
than 18 years of age) and mandates the setting up of Special Courts to expedite trials of these
offences.

Table 3 indicates recorded child rape cases nationally and for the state of Maharashtra
as a case study.1 Maharashtra is one of the most developed states in India and is among the
top three states with the highest recorded child rapes from 2001 to 2013 (NCRB 2015).

Page | 44
 Since 2001, there has been a gradual but steady rise in recorded incidents of sexual
abuse i.e. child rape. Although there is no evidence to indicate that globally the prevalence of
CSA has been going up over the years, we might hypothesize that increased reporting in India
over this period might be the result of greater public awareness, education and a more
sensitive criminal justice response to CSA. Following the enactment of POCSO, the number
of offences registered under rape itself went up 44 % nationally and 68 % in the state of
Maharashtra within a year, lending support to the hypothesis.

Further, detailed figures from Maharashtra provided by the second author indicate that
total registered crime under POCSO was 2540 offences in 2013 and 3858 offences in 2014,
amounting to a 51 % increase in 1 year.

Before the Bill was passed, cases of child sexual abuse were dealt under the following
sections under IPC:

 Section 375 that defines rape.

 Section 376 of the Indian Panel Code provides for the punishment of rape which shall not
be less than seven years but which may extend to ten years, unless the women raped is his
own wife and is not under twelve years of age in which case, he shall be punished with
imprisonment for a term which may extend to two years or with fine or both. When the

Page | 45
 girl is under 12 years or where the rapist is a person in authority (in a hospital, children's
home, a police station etc.), the punishment is greater.
 The other IPC provisions that are invoked is relating to unnatural practices is Section 377
This is generally invoked when boy children are sexually abused. Although forcible sex
with a boy is an act of rape, the rape law of the country under IPC does not cover it.
 Outraging the Modesty of a woman or a girl is dealt with in Section 354
 For insulting the modesty of woman is in Section 509
 Obscenity and pornography are dealt under the Young Persons (Harmful Publications)
Act, 1956. .A young person means a person under the age of 20 years. It is an offence to
sell, let, hire, distribute or publicly exhibit harmful publications.
 Under Section 67 of the Information Technology Act, 2000, publication and transmission
of pornography through the internet is an offence.

6-Inadequacies in IPC Laws

The ordinary criminal laws are totally inadequate to protect the children, who are victims of
sexual abuse. These sections do not include the common forms of child sexual abuse nor their
impact on the children. The restrictive interpretation of "penetration" in the Explanation to
Section 375 is an obstacle to cases of CSA. Explanation to Section 375 does not treat forced
sexual intercourse by a husband against the wife (above 15 years) as an offence. Section
376(A) also has the same reasoning. The Indian Penal Code needs to be reviewed.

The existing definitions of rape and molestation should be suitably amended to

adequately address the various types of sexual assault on children. In fact, sexual assault on
children should be made a specific offence requiring stringent punishment. There is no
provision to deal with the trauma of the child. The testimony of the child victim is not
recorded sensitively by the police/judge/prosecutor magistrate. The recording of the
statements of child victims need a special provision in the Cr.P.C. There is no such provision
at present.

Trained personnel should interview the victim children. The language of the child is
to be understood by the legal system. Under the present system the natural habitat of the
victim is generally disturbed, which is a source of trauma to the child. The delays in the
system at every stage further add to the trauma of the child victim. There are several cases

Page | 46
pending in the courts as the trial goes on for years. In several cases the girls have become
adults by the time the final judgment comes through. The investigation of trial of sexual
offences have to be made time bound. Special courts need to be set up. There is a need for a
special provision relating to medical examination of child victim in the Cr.P.C. The absence
of a proper medical report in the case of a sexual assault goes against the child assaulted the
mental health of victim needs to be attended to, as the trauma has to be reduced.

7-Distinctive features of POCSO

POCSO 2012 does not use the term ‘rape’ more commonly used and also does not confine
penetrative sex to penile penetration. Instead, it broadens the offence termed ‘penetrative
sexual assault’ (section 3) to include oral sex, as well as, insertion of any object into anus,
mouth or vagina, in addition to penile penetrative sex. In State of Haryana vs. Pankaj
Choudhary 201130 (pre-POCSO) the accused could only be prosecuted for ‘outraging the
modesty of a woman’ for digital penetration of the anus and vagina of a 5 year old child. The
prosecution was unsuccessful in proving rape as the High Court ruled that digital penetration
was not recognised as an offence under the India Penal Code (Delhi High Court 2011). The
addition to the definition of penetrative assault has increased the cover of protection for
children.

POCSO also criminalises a range of behaviours as being sexual assaults, short of

penetration (section 7).

Additionally, the offences of ‘aggravated’ penetrative and non-penetrative sexual

assault is made more serious and attract stronger penalties (sections 5, 9) when committed by
a specified range of perpetrators, in a wide array of situations or conditions, and/or has a
severe impact on the victim. This includes sexual assault committed by persons in authority
or position of power with respect to a child, committed by persons in a shared household with
the child, in conditions such as: gang rape, causing grievous bodily harm, threatening with
firearm or corrosive substances, during communal or sectarian violence, assaulting a child
under 12 years of age, or one who is physically or mentally disabled, causing a child to
become pregnant, or knowingly assaulting a pregnant child, or infecting the child with HIV,

30
(2011) 15 SCC 380

Page | 47
repeated assaults, or accompanied by public degradation. The definition is very
comprehensive and covers a range of possible scenarios.

POCSO is also forward thinking in many aspects, in that, the definition of sexual
harassment includes repeatedly or constantly following, watching or contacting a child either
directly, electronically or through other means [section 11(iv)]—thus, covering incidents of
child harassment via sexting or sexual cyber bullying. However, the interpretation of what
might constitute ‘repeatedly’ or ‘constantly’ following or contacting a child with sexual intent
(with the law specifying sexual intent being a ‘question of fact’) is unspecified in POCSO
2012 and consequently is potentially contestable.

The Act is quite distinctive in that it penalises abetment of or attempt to commit any
of the offences listed in the preceding sections (section 16). Another ‘extraordinary clause’
(section 29) in the Act is the presumption of guilt of the accused, until proven innocent. This
matter of jurisprudence lends itself to problems in the light of some of the points raised
below.

The provision of Special Courts (section 35) where trial proceedings may be
conducted in a more sensitive manner with the victim’s testimony given either ‘in camera’
(i.e. privately), via video-link, or behind curtains or screens, is intended not only to reduce
trauma but also protect the identity of the child. The Special Court plays a pivotal role in how
the law and the evidence may be interpreted.

Implementation of POCSO 2012 involves various criminal justices, state and third
sector agencies and is very resource intensive.

Various problems arising from resource scarcity and lack of appropriate training
which affect how investigations, prosecution and medical examinations are conducted in
cases of CSA in have been identified by stakeholders in a state wide consultation in
Maharashtra (Maharashtra State Consultation 2014). Instead of revisiting those problems
which impact the implementation of the Act, this paper focuses on three issues—namely, age
of consent, obligatory reporting and age determination—embedded in the provisions of the
Act that might cause unintended negative consequences individually and in combination.

8-Juvenile Justice (Care and Protection of Children) Act, 2015

Page | 48
Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by Parliament
of India. It aims to replace the existing Indian juvenile delinquency law, Juvenile Justice
(Care and Protection of Children) Act, 2000, so that juveniles in conflict with Law in the age
group of 16–18, involved in Heinous Offences, can be tried as adults. The Act came into
force from 15 January 2016. It was passed on 7 May 2015 by the Lok Sabha amid intense
protest by several Members of Parliament. It was passed on 22 December 2015 by the Rajya
Sabha. To streamline adoption procedures for orphan, abandoned and surrendered children,
the existing Central Adoption Resource Authority (CARA) has been given the status of a
statutory body to enable it to perform its function more effectively. There is a separate
chapter on Adoption which provides detailed provisions relating to adoption and punishments
for not complying with the laid down procedure. Processes have been streamlined with
timelines for both in-country and inter-country adoption including declaring a child legally
free for adoption.

Juvenile can be defined as a child who has not attained a certain age at which he,
like an adult person under the law of the land, can be held liable for his criminal acts. The
juvenile is a child who is alleged to have committed /violated some law which declares the
act or omission on the part of the child as an offence. Juvenile and minor in legal terms are
used in different context. Juvenile is used when reference is made to a young criminal
offenders and minor relates to legal capacity or majority. To make the meaning more clear
resort can profitably be made to some other source. The concept of the juvenile varies from
State of State for convenience. In India, until passing of Children Act, 1960 there was no
uniformity regarding age limitation of juvenile delinquent. Bombay Children Act 1948
defined “Child” to mean a boy who has not attained the age of sixteen years or girl who has
not attained the age of eighteen years. The U.P. Children Act defined “Child” as a person
under the age of sixteen years. The East Punjab Act, Andhra Pradesh (Telangana Area)
Children Act also prescribed the sixteen years age limit but included the children who are in
certified schools, though they have attained the age of 16 years. Under A.P. Children Act
1920 “child” means a person under 14 years and when used to reference to send to certified
school applies to that child during while period of detention notwithstanding that the child
attains the age of fourteen before expiration of that period. The Saurashtra & West Bengal
defines a 'child” a person who has not attained the age of eighteen years.

The JJA Act, 1986 was repealed by 2000 Act and the distinction with regard to age
between male and female juveniles has been done away with by the Government of India in

Page | 49
performance of its obligation to the international obligations. Now age of juvenile in conflict
with law for male and female has been fixed at 18 years. A juvenile in conflict with law
under the JJ (C & P) Act, 2000 is a juvenile who is alleged to have committed an offence and
has not completed 18 years of age as on the date of commission of such offence. Recently
under the new Juvenile justice act, 2015 In case of a heinous offence alleged to have been
committed by a child, who has completed or is above the age of sixteen years, the Juvenile
Justice Board shall conduct a preliminary assessment with regard to his mental and physical
capacity to commit such offence, ability to understand the consequences of the offence and
the circumstances in which he allegedly committed the offence.

After the 2012 Delhi Gang Rape it was found that one of the accused was a few
months away from being 18. So, he was tried in a juvenile court. On 31 July 2013,
Subramanian Swamy, a BJP politician filed a Public Interest Litigation in the Supreme Court
of India seeking that the boy be tried as an adult in a court. The Court asked the juvenile court
to delay its verdict. After the Supreme Court allowed the juvenile court to give its verdict, the
boy was sentenced to 3 years in a reform home on 31 August 2013.The victim’s mother
criticised the verdict and said that by not punishing the juvenile the court was encouraging
other teenagers to commit similar crimes. In July 2014, Minister of Women and Child
Development, Maneka Gandhi said that they were preparing a new law which will allow 16-
year-olds to be tried as adult. She said that 50% of juvenile crimes were committed by teens
who know that they get away with it. She added that changing the law, which will allow them
to be tried for murder and rape as adults, will scare them. The bill was introduced in the
Parliament by Maneka Gandhi on 12 August 2014. On 22 April 2015, the Cabinet cleared the
final version after some changes. The government introduced the Juvenile Justice Bill in
August 2014 in Lok Sabha and gave various reasons to justify the need for a new law. It said
that the existing Juvenile Justice Act, 2000 was facing implementation issues and procedural
delays with regard to adoption, etc. Additionally, the government cited National Crime
Records Bureau (NCRB) data to say that there has been an increase in crimes committed by
juveniles, especially by those in the 16-18 years age group. NCRB data shows that the
percentage of juvenile crimes, when seen in proportion to total crimes, has increased from 1%
in 2003 to 1.2% in 2013. During the same period, 16-18 year olds accused of crimes as a
percentage of all juveniles accused of crimes increased from 54% to 66%.A PRS analysis of
the statistics on incidence of crimes by children:

Page | 50
 Juveniles between 16-18 years apprehended under IPC  
Crime 2003 2013
Burglary 1,160 2,117
Rape 293 1,388
Kidnapping/abduction 156 933
Robbery 165 880
Murder 328 845
Other offences 11,839 19,641
Total 13,941 25,804
Note: Other offences include cheating, rioting, etc.  Sources: Juveniles in conflict with law,
Crime in India 2013, National Crime Records Bureau; PRS.

9-Changes made under this Act

(1) The bill will allow a Juvenile Justice Board, which would include psychologists and
sociologists, to decide whether a juvenile criminal in the age group of 16–18 should tried
as an adult or not.
(2) The bill introduced concepts from the Hague Convention on Protection of Children and
Cooperation in Respect of Inter-country Adoption 1993 which were missing in the
previous act.
(3) The bill also seeks to make the adoption process of orphaned, abandoned and surrendered
children more streamlined.
(4) The bill introduces foster care in India. Families will sign up for foster care and
abandoned, orphaned children, or those in conflict with the law will be sent to them. Such
families will be monitored and shall receive financial aid from the state. In adoption,
disabled children and children of physically and financially incapable will be given
priority. Parents giving up their child for adoption will get 3 months to reconsider,
compared to the earlier provision of 1 month.
(5) A person giving alcohol or drugs to a child shall be punished with 7 years imprison
and/or 1, 00,000 fine. Corporal Punishment will be punishable by 10,000 or 3 months of
imprisonment. A person selling a child will be fine with 1, 00,000 and imprisoned for 5
years.
(6) The bill allows for juveniles 16 years or older to be tried as adults for heinous offences
like rape and murder. Heinous offences are those which are punishable with
imprisonment of seven years or more.

Page | 51
(7) The bill mandates setting up Juvenile Justice Boards and Child Welfare Committees in
every district. Both must have at least one woman member each.
(8) The decision to try a juvenile 16 years or older as an adult will be taken by the Juvenile
Justice Board, which will have a judicial magistrate and two social workers as members.
If the board decides against it, the juvenile will be sent for rehabilitation.
(9) The Child Welfare Committees will look at institutional care for children in their
respective districts. Each committee will have a chairperson and four other members, all
specialists in matters relating to children.
(10) Any child that found committing any crime will now be send for a preliminary
assessment for a period of three months, up from the earlier one month. A clarification is
added that the preliminary assessment is not a trial, but to assess the child’s capacity to
commit the crime.
(11) There will now be proper training of special juvenile units in the police force.
(12) NCPCR and SCPCR will be the nodal authorities to be responsible for monitoring
implementation, the publicity of the amended act, and to look into cases that arise out of
the Act.

10-Age of consent

All sexual acts described under POCSO are, without exception, considered to be criminal
offences if they involve a ‘victim’ under the age of 18 years. This holds true regardless of the
issue of consent or the age of the ‘perpetrator’. In cases of consensual sex between two
minors the concepts of victim and perpetrator become interchangeable as the law inexorably
criminalises sexual behaviour for under-18 year olds. The Act does not confer any sexual
autonomy to children who may then be liable for committing sexual acts under the law.
POCSO invariably criminalises a juvenile ‘perpetrator’ of CSA to be “dealt with under the
provisions of the Juvenile Justice (Care and Protection of Children) Act 2015.

However, in 2013 a Special Court judge rejected the notion that the human body of a
person under 18 years is the property of the State, whereby it can restrict individual autonomy
on sexual behaviour. While ruling in a case where a 15 year old willingly eloped with and
married a 22 year old man, the judge held that criminalising such behaviour would not serve
the purpose of the enactment (TOI 2013). There is thus a tension between the letter of the law
and its spirit. Determining whether an allegation involving underage sex was forced or

Page | 52
consensual would depend greatly on individual interpretation of the circumstances. The law
allows for abuse in either direction: being too restrictive of children’s autonomy or too
permissive of CSA.

Finally, lack of proper support and professional help to the victim and their family can
sometimes cause greater psychological harm and trauma. Child Welfare Committees are to
provide this support in India but are not really functioning satisfactorily (Maharashtra State
Consultation 2014). It therefore creates difficulties for ‘victims’ as well as ‘perpetrators’
under 18 years, the latter are criminalised but not provided with professional help they might
need.

11-Obligatory reporting

Mandatory reporting of CSA by any citizen, but especially those working with children and
young people in the education, social, religious and heath sectors is enshrined in POCSO.
Failure to do so carries legal sanctions of imprisonment up to 6 months and/or fines intended
to encourage compliance with the law.

Evidence in other countries (USA, Australia) shows that mandatory reporting of child sexual
abuse has had mixed success. The Report for the Royal Commission into Institutional
Responses to Child Sexual Abuse reported that since the aim of mandatory provisions is to
encourage reporting not police it, failures to report are rarely prosecuted in some
jurisdictions. As a result, in New South Wales (Australia) the law has been amended to
remove sanctions for failure to report CSA. However, mandatory reporting obligation under
POCSO raises three problems specific to the Indian context:

1. Criminalising sex less than 18 years virtually pushes it beyond the purview of health
professionals and school counsellors who might be reluctant to impart safe sex advice or treat
effects of unsafe or reckless sexual practices without breaching patient confidentiality and/or
getting involved with reporting it to the authorities.

2. The law raises many issues for institutions, charities and organisations working with poor
and backward communities and children and who are deeply committed to building
relationships based on trust with young people. Breach of trust would seriously jeopardise
their efforts to communicate with and work with young people if they are legally bound to

Page | 53
report any knowledge of consensual, albeit underage sex. Lack of training for professionals
(doctors, teachers, psychologists, social workers, counsellors etc.) working with children on
how to deal with knowledge of sexual activity and to respond appropriately can be an
additional problem.

3. Mandatory reporting raises the issue of who is or should be responsible for enforcing this
legal obligation. The police are overworked and scarcely possess the capacity to do so.
Prescribing a legal obligation with penal and financial sanctions, without thinking through the
mechanism for its enforcement, and the resulting lack of accountability, might mean that
cases of failure to report fall through the cracks. There is a danger that the law may be used
only retrospectively to punish transgressions, rather than ensure prospective reporting of
suspected CSA by competent authorities in appropriate cases.

A possible solution to the problem would be for a competent authority to distinguish between
acts of crime and consensual sex at an early stage. Thus, the incident ought to be reported, but
decisions regarding registering an offence and investigating may be discretionary.

12-Age determination

Determining the age of the victim and the perpetrator is fraught with problems. The Special
Court is authorised to determine age [section 34(2)] but there are no clear guidelines as to
how they are to do so. It is generally acknowledged that forensic means of establishing age of
a living person can be inexact and quite complicated. The Supreme Court of India ruled in the
case of Babloo Pasi vs State Of Jharkhand 31 and Anr that age determination is very difficult
in the absence of birth certificates or other official documentation and while the opinion of a
specially constituted Medical Board may be useful in determining age, it cannot be the only
or conclusive factor to do so (Supreme Court of India 2008).

The Supreme Court further states that a hyper-technical approach should not be
adopted and the Court should lean towards giving the benefit of the doubt to the juvenile
while ensuring that the law is not being misused. Under POCSO the ages of both, victim and
perpetrator are pivotal in determining whether and how the Act would apply and influencing
the outcome at the charging and trial stages. In developing countries like India where a large
proportion of births are just not registered and therefore substantial sections of the population
31
(2008) 13 SCC 133

Page | 54
do not have documents like birth certificates or school leaving certificates to provide proof of
age, this could be problematic.

13-Interaction between the three issues and its impact on child marriages

Laws do not operate in isolation and often real life situations can confound even the noblest
of intentions enshrined in law. In this case, the legal age of consent and mandatory reporting
obligations of POCSO combined with the difficulty in determining age could cause more
problems than anticipated for the criminal justice system. POCSO in conjunction with
Prohibition of Child Marriage Act 2006 is intended to protect girls from being forced into
early marriages.

While this is a worthwhile goal to pursue, cultural and social norms supporting early
marriages in India combined with the individual’s right to sexual autonomy might present
impediments to the fulfilment of that aim. A recent report on the census data indicates that in
India one in six women were married before they were 18 years of age, of which 17.5 % (6.5
million) women had been married within 4 years prior to when the census was conducted.
Thus, there are possibly 6.5 million (and growing) potential law suits under POCSO.

It could lead to enormous waste of time and resources of the criminal justice system
in cases of consent to marriage by a girl between the ages of 15–18 years. Ignoring the role of
consent in underage sex combined with the inexact science of age determination in a climate
of mandatory reporting can potentially lead to abuse of the legal system or miscarriages of
justice.

A possible solution to this problem may be the mandatory linking of Unique

Identification with victim and offender data in cases involving underage parties at the time of
reporting to help determine the age of the victim and perpetrator. However, this could
potentially raise a number of ethical issues and might be at cross purposes with the original
intention of the UID project in India.

Page | 55
 CHAPTER-5

ADDRESSING CHILD SEXUAL ABUSE IN INDIA THROUGH SEX

EDUCATION

National level research such as the Government of India’s 2007 survey in 13 states across the
country suggests that child sexual abuse (CSA henceforth) has reached epidemic proportions
in India with one in two children surveyed, reporting abuse 32. Despite the GOI study of all
forms of child abuse and a more recent national qualitative study by Human Rights Watch
(2013) specifically on CSA, there was little impact on the public discourse on sexual abuse of
children, until the increased English media reporting of CSA in Indian private schools.

The latter brought the issue into sharp focus at least in the minds of middle and upper
middle class parents. As a consequence, there have been various forms of online and offline
activism and greater pressure on schools to increase vigilance on their campuses via CCTV
cameras and police verification of teachers and other school employees. In this chapter we
argue that rather than merely increasing vigilance, we need to provide sexuality education to
children and train teachers to effectively address CSA.

While recognizing that schools are not the only site or even the primary site perhaps
where CSA occurs, we argue that schools have the potential to become sites of social change
where the patriarchal attitudes and cultures of gender based violence that encourage CSA are
interrogated. For this, both in-service and pre service teacher training needs to prepare
teachers to recognise the warning signs of CSA and to provide age-appropriate sexuality
education to students. This training should be part of a more generalized curriculum on
gender equity education and the creation of a caring and child-friendly environment in
schools.

1-Implications for schooling and teacher professional development

With this background we now consider how CSA can be addressed within schools in India.
We argue that schools need to be viewed as having both short-term and long-term impacts on
preventing and mitigating CSA. In the short term, schools can create a more caring and

Loveleen Kacker, Srinivas Varadan Pravesh Kumar, Study on Child Abuse in India. Ministry of Women and
32

Child Development, Government of India, 2007.

Page | 56
sensitive environment that may diminish the incidence of CSA and increase the chances of
reporting it. In earlier sections, we have already highlighted the need to consider CSA
alongside other forms of abuse perpetrated on children and have advocated for the creation of
a more non-threatening environment in schools, which recognizes the personhood of children
that should take the form of respecting their physical boundaries and their right to study in an
environment where they are not subjected to any form of physical or emotional punishment,
amongst other behaviours. When adults routinely respect children’s right to bodily integrity
the chances that children are able to recognize sexual abuse and articulate it are enhanced.

In the long-term, we need to consider the ways in which both formal (written)
curriculum and the hidden curriculum (which includes unintended lessons that are embedded
in interactions between teachers and students, school processes and allocations of roles and
responsibilities to boys and girls), can reinforce gender equity and undermine hegemonic
forms of masculinity and femininity. An instance of embedding gender equity in the written
curriculum would be the inclusion of a chapter such as ‘Women, Caste and Reform’ in the
class 8 textbook or ‘Growing Up as Boys and Girls in the Class 7 textbook of social science
published by the NCERT (National Council of Educational Research and Training). An
example of gender equity in the hidden curriculum would be encouraging girls to participate
in sports that are usually associated with boys (football and boxing) and encouraging boys to
undertake cooking and similar ‘feminine’ subjects.

Sexuality education is an important component of a curriculum aimed at gender equity.

Nirantar’s 2008 report, Sexuality Education for Young People proposes that we recognize
children’s right to information about sexuality which requires compulsory age-appropriate
sexuality education as part of children’s schooling for reasons of child’s safety and wellbeing,
rather than for instrumental purposes of population control and disease prevention (the
agendas that drove sex education in the 1980s and 90s).33

Contrary to popular anxieties, research indicates that imparting sexuality education does
not increase sexual activity, but enables the development of a strong sense of self and
equitable relationships.

Both Nirantar (2008) and the highly progressive Justice Verma Committee Report on
Amendments to Criminal Law (2013) recommends that we move away from sex education

Nirantar “Sexuality Education for Young People” (2008) http://www.eklavya.in/pdfs/annual%20report

33

%200708/Appendix%2015%20Sexuality%20Education%20for%20the%20Youth.pdf

Page | 57
focussed primarily on biology towards sexuality education, which addresses the social,
psychological and cultural aspects of sexuality and enables students to understand gender
discrimination34. Viewing sexuality education in this manner, allows us to construct sexuality
education curricula that enable children to understand their bodies, develop a healthy body
image, overcome feelings of shame, be physically healthy, make safe choices, recognize
abuse and violence and treat others with respect both in the present and the future.

Recognizing the cultural and social aspects of sexuality means understanding that we
live in a highly inequitable society, in which women’s health, education and physical safety
are seriously undermined. It also means acknowledging the existence of a highly aggressive
form of masculinity as hegemonic within Indian culture. As argued in the introduction,
schools have an important role in interrogating extant inequitable and oppressive gender
norms and in social transformation. Previous research indicates that schools often reproduce
gender hierarchies in both the written and the hidden curriculum 35. Therefore, engaging
schools in actively promoting gender equity as the NCF’s (2006) position paper on Gender
Issues in Schooling recommends, would require not only curricular reform and pedagogical
strategies but also education and sensitization of teachers36.

In addition to training in sexuality education and recognizing signs of CSA, teacher

professional development needs to take a three pronged approach to gender equity education:
First, teachers need to be trained to question the normalization of gender inequities through
teaching strategies and the written curriculum.

Most disciplines including science, social science, language, literature and mathematics
have historically been taught in ways that privilege the male elite learner but can be remained
in ways that include female students37. As the examples of NCERT textbooks discussed
34
The Justice Verma Committee came into existence after the brutal rape and murder of a physiotherapy student
in Delhi in Dec 2012 .Source: http://www.prsindia.org/parliamenttrack/report-summaries/justiceverma-
committee-report-summary-2628/
35
Bhattacharjee, Nandini. 1999. “Through the looking glass: gender socialization in primary school.” Pp. 336-
355 in Culture, socialisation and human development: theory, research and applications in India, edited by T.S.
Saraswathi. New Delhi: Sage Publications; Position Paper of National Focus Group on Gender Issues in
Education, 2006.
36
National Focus Group Position Paper on Gender Issues in Education, NCERT 2006.
http://www.ncert.nic.in/rightside/links/pdf/focus_group/gender_issues_in_education.pdf
37
For instance a history teacher should be primed to find ways in which women’s histories that have been
marginalized can be included in the curriculum, a science teacher can engage students in a discussion of why a
large number of inventions and discoveries of the 19th and early 20th century tend to be attributed only tomen.
A language teacher can engage student in a discussion of the gendered nature of words such as ‘mankind’ or
‘sportsmanship’.

Page | 58
above suggests, curricular reform has already been initiated. Teachers now need to be
sensitized to how emerging gender equitable curriculum can be implemented effectively in
the classroom. This requires teachers to be trained to use more participatory pedagogical
strategies and foster critical thinking by encouraging students to engage in ‘reading against
the grain’ question taken for granted knowledge claims and value personal experience and
insight alongside textual knowledge.

Secondly, training opportunities need to be designed to enable teachers to reflect on

their own cultural biases which impact the hidden curriculum of the school. Given that
teachers are not immune to the cultural influences of the wider community, they often carry
patriarchal attitudes into the classroom. A study located in primary schools finds gender
biases being reflected in tasks assigned, types of behaviours encouraged or inhibited and the
manner in which girls and boys engage with each other. Teacher educators need to create
non-threatening sensitization programmes that enable teachers to identify these (largely
unconscious) biases and experiment with new, gender equitable behaviours. Addressing
long-cherished and deep rooted cultural attitudes and social norms is not an easy task and
require in-depth and long-term engagement. The process might be slow and meet with
limited success in the initial stages but is likely to gain momentum over time.

Finally, we need to create opportunities for teachers to examine their own

socialization and reflect on the influence of gender on their own personal and professional
lives. Hegemonic masculinities and femininities constrain the social lives of both men and
women. Just as women’s access to opportunities are severely circumscribed by their gender,
the confining roles of men as providers and the consequent expectations placed on them to
achieve financial and professional success can create high levels of stress and may set most
men up for failure. Further, the privileging of this form of masculinity contributes to male
aggression and violence.

As teachers become more self-reflexive about gender hierarchies and oppressions in

their own lives, it is likely that they will begin to find ways to engage critically with students
on gender issues both within and outside the classroom.

We currently have progressive laws that address different forms of abuse, which
children could face both within and outside schools. However legislation can only address
individual crimes and is not effective without a concomitant change in culture. On the other
hand education is an important site for cultural change.

Page | 59
 Educational interventions which address CSA must acknowledge the links between
different types of abuse and view CSA as one of the many forms of gendered oppression and
violence. Drawing from progressive policies and judicial reports we can construct liberal
sexuality curricula that recognize children’s right to information about their bodies and
sexualities and promote equitable relationships between the sexes. If this is done alongside
the creation of a psychologically safe environment in schools, incidents of CSA are more
likely to be mitigated and reported.

The role of teachers is central to this process. On the one hand teachers need to be
sensitized to recognize CSA, to impart sexuality education and to engage students to think
about gender inequities and oppressions in wider society. On the other, they need to be
educated to be self-reflexive about their own gender biases which are reflected in their
behaviour and pedagogy. This self-reflexivity needs to be extended to their own socialization
and their own social positions to empower them to truly adopt gender equitable values.
Achieving this goal is arguably challenging and time-consuming but also likely to yield rich
dividends in terms of lasting social change.

CHAPTER-6

ANALYSIS OF INDIAN LEGAL POSITION ON CHILD

SEXUAL ABUSE

Page | 60
India is home to 430 million children which is approximately includes one in every five
children below the age of 18 years, in the world. 38 They face staggering challenges from the
day they are born. Malnutrition, illiteracy, trafficking, forced labour; drug abuse, sexual
abuse pornography etc. are not uncommon among the children in India.39 The paper
particularly deals with the problem of child sexual abuse in India. Child sexual abuse
includes physical or psychological maltreatment of a child usually by a person who is in a
position of trust and confidence in relation to the child.40

The person uses the child for sexual stimulation or for sexual gratification. National
study undertaken by the Ministry of Women and child development defined ‘sexual assault’
as making the child fondle with his/her private parts or making the child exhibit private body
parts and being photographed in the nude. However, the report did not exhibit the true reality
because most of the cases go unreported because of the stigma attached to it in our society. A
study conducted by the UNICEF after the 2012 Delhi gang rape revealed that one in every
three rape cases, the victim is a child and these incidences are increasing at an alarming rate.

Approximately 7200 children including infants are raped every year which is an issue
of serious concern. Before May 2012, various sections of the IPC dealing with sexual
offences were also applied to the cases of child sexual abuse resulting in serious miscarriage
of justice as the provisions were not reasonably sufficient for their application to cases of
child sexual abuse. Section 354 IPC punishes a person for outraging the modesty of a woman
by use of criminal force but if we apply this section to case of say sexual assault of an infant
the serious problem which would arise is what modesty does a child of 2 years have?

The application of provisions dealing with adults created numerous problems when
applied to cases of child sexual abuse. Therefore, to solve these problems parliament enacted
a special legislation POSCO Act in May 2012. Under this law, all forms of child sexual
abuses are specific offences with specific punishments for the perpetrators. Earlier, there was
no law covering any non- penetrative sexual act committed against boys which is now clearly
defined. The new law has also laid down certain guidelines for police and court authorities to

38
The Planning Commission, Government of India, “Report of the Working Group on Child Rights for the 12th
Five Year Plan (2012–2017),”
http://planningcommission.nic.in/aboutus/committee/wrkgrp12/wcd/wgrep_child.pdf , p.8
39
United Nations Children’s Fund, “The Situation of Children in India – a profile,” May 2011,
http://www.unicef.org/india/The_Situation_of_Children_in_India -A_profile_20110630_.pdf
40
The Problem of Child Sexual Abuse in India Laws, Legal Lacuna and the Bill PCSOB-2011,
http://medind.nic.in/jal/t12/i2/jalt12i2p170.pdf

Page | 61
deal with the victims. Special child courts are also setup to deal with the issue however the
effective application of these guidelines still remains a point of concern. The problem of
implementation has highly hampered the protection of children from sexual abuse in the
country. Furthermore, National Commission for the Protection of Child Rights which was
established as an independent body in 2007 which ensures that all such laws, policies, and
programmes, are in agreement with the child rights enshrined in the Constitution of India and
the UN Convention on the Rights of the Child. 41 The Commission has also been assigned the
task of overseeing the implementation of the POSCO Act.

Perpetrators of sexual violence are less likely to go to jail or prison than

other criminals. The Majority of Sexual Assaults Are Not Reported to the Police. Only 310
out of every 1,000 sexual assaults are reported to police. That means about 2 out of 3
go unreported.42

 Individuals of college-age43

41
“Home”, National Commission for the Protection of Child Rights, http://www.ncpcr.gov.in
42
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization
Survey, 2010-2014 (2015); ii. Federal Bureau of Investigation, National Incident-Based Reporting System,
2012-2014 (2015); iii. Federal Bureau of Investigation, National Incident-Based Reporting System, 2012-2014
(2015); iv. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Felony Defendants in
Large Urban Counties, 2009 (2013). (This statistic presents information together which originated from
separate studies. RAINN presents this data for educational purposes only, and strongly recommends using the
citations to review any and all sources for more information and detail.)
43
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Rape and Sexual Victimization
Among College-Aged Females, 1995-2013 (2014)

Page | 62
 Female Students: 20% report
 Female Non-Students: 32% report

 The elderly: 28% report44

 Members of the military: 43% of female victims and 10% of male victims reported.45

 Reasons Victims Choose Not to Report -

Of the sexual violence crimes reported to police from 2005-2010, the survivor reporting gave
the following reasons for doing so.46
 28% to protect the household or victim from further crimes by the offender
 25% to stop the incident or prevent recurrence or escalation
 21% to improve police surveillance or they believed they had a duty to do so
 17% to catch/punish/prevent offender from reoffending
 6% gave a different answer, or declined to cite one reason
 3% did so to get help or recover loss

Of the sexual violence crimes not reported to police from 2005-2010, the victim gave the
following reasons for not reporting:
 20% feared retaliation
 13% believed the police would not do anything to help
 13% believed it was a personal matter
 8% reported to a different official
 8% believed it was not important enough to report
 7% did not want to get the perpetrator in trouble
 2% believed the police could not do anything to help
 30% gave another reason, or did not cite one reason

Apart from these domestic laws, India is also a party to various international human
rights treaties and covenants, including the International Covenant on Civil and Political
Rights and the Convention on the Rights of Child, which provide specific protection for the
44
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Crimes against the
Elderly, 2003-2013 (2014).
45
Department of Defence, Fiscal Year 2014 Annual Report on Sexual Assault in the Military (2015).
46
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Female Victims of Sexual
Violence, 1994-2010 (2013)

Page | 63
rights of children. They demand various effective measures to prevent and punish abuses and
ensure that the government adopts and implements effective measures to prevent such abuse.
Human Rights network makes it mandatory for the Indian government to adopt and enforce
policies that will prevent and redress sexual violence against children effectively and which
will ensure justice.

1-International laws

Apart from its domestic laws, India is a party to the core international human rights treaties
that protect children, including the International Covenant on Civil and Political Rights
(ICCPR), the Convention on the Rights of the Child (CRC) and the Convention on
Elimination of All Forms of Discrimination against Women (CEDAW).

2-Abuses in Schools

Teachers and other school staff hold positions of trust and authority. Yet, when cases of
sexual abuse are exposed, schools sometimes choose to deny or discredit the victims. In
2012, for example, officials ignored serious complaints made by 11 girls staying at a hostel
attached to primary schools in Kanker district of Chhattisgarh state, in central India. The
girls, aged 8-12, said they had been repeatedly raped by one of their teachers and a
watchman. An investigation by Tehelka magazine found that the girls had told other school
staff members about the abuse, as well as district education officials, and the village council.
But even though the allegations were investigated, no action was taken for months. 47
Eventually the district administrator heard the allegations and the police were finally called
in. At the time of writing, they had arrested the two men accused of rape and six others, who
had not acted on the girls’ complaints. 48 This was a particularly shocking case, but schools
across India need to introduce rigorous child protection measures. Teachers and managers
need to do much more to ensure that all schools are safe. This includes the proper vetting of
all adults who have access to students, including support staff like school bus drivers. In one
of several recently reported cases, a driver and conductor were accused of raping a seven-
year-old girl in Ghaziabad, near New Delhi, for months on a regular basis after they had

47
Anil Mishra, ―Kanker and its sordid tale of rapes and abuse,‖ Tehelka, January 10, 2013,
http://tehelka.com/kanker-and-its-sordid-tale-of-rapes-and-abuse/# (accessed January 11, 2013.
48
S.S. Navarji, ―Two officials arrested for inaction in Kanker incident,‖ Times of India, January 15, 2012,
http://timesofindia.indiatimes.com/city/raipur/Two-officials-arrested-for-inaction-in-Kankerincident/ articles
how/18027072.cms (accessed June 16, 2012).

Page | 64
dropped off the other children. According to press reports, the girl‘s parents complained to
the school, which did nothing.

 Ryan murder case -

Pradyuman Thakur was an Indian student at Ryan International School, who was

found murdered inside the ground floor washroom of the school under mysterious
circumstances on 8 September 2017 in Gurgaon, India. The death was controversial as it
appeared that the murder happened to hide another unknown crime. The local police and
the state government did not continue investigating the murder. However, after
persuading the victim's parents, an intervention by the Supreme Court of India, Central
Bureau of Investigation took over the probe of the case on 23 September 2017. According to
police reports, Pradyuman Thakur was murdered within half an hour after he and his elder
sister were dropped off by their father at the school they both attended. Their father reached
the school at 7:55 AM and claimed that he received a call at approximately 8:10 AM
regarding Pradyuman condition; the child had been rushed to the hospital by the school staff.
Various local media reports claim that the school's management had destroyed, or attempted
to hide evidence before the police arrived. Local media also claimed that the school
management allegedly asked the students to wash away spilt blood and other evidence, so
that the fingerprints and other marks could not be identified. Pradyuman was slashed in the
neck with a knife twice; doctors said he died two minutes after the attack from excessive
bleeding. Reports stated that he was unable to cry for help due to his severed windpipe. The
school authorities claimed that the child was alive when he was taken to the hospital.
Witnesses supported this claim when they said that they saw two teachers ordered one of the
school's bus conductors, Ashok Kumar, to carry the child in a car to the hospital. The
conductor carrying the child was substantiated to have hidden the blood marks on his shirt.
Within minutes of police questioning, allegedly Ashok Kumar confessed while Saurabh
Raghav, another school bus driver, claimed that he was a scapegoat. Gurgaon police informed
the district court that the crime scene had been tampered with, and they had suspected a third
person was involved. On 21 September 2017, senior police officer Biren Singh stated: "Only
Ashok has murdered Pradyuman, no other person is involved". However, Ashok Kumar later
told the media, through his lawyer, that he was forced to confess due to the torture techniques
of the police. The murder triggered massive protests by parents at various branches of Ryan
International Schools across India. The incident shocked the public and made headlines in all

Page | 65
the leading newspapers across the globe. The Ryan International Group's founding chairman,
Augustine Pinto, his wife, and Managing Director, Grace Pinto, were both granted protection
from arrest by a court until 13 September 2017. Their son, the group's Chief Executive
Officer, Ryan Pinto, also applied for anticipatory bail in Bombay High Court. Ryan
International School management made a motion to the Supreme Court to transfer the case
outside Haryana for a fair trial. The court began hearing the case on 18 September 2017. The
Juvenile Justice Board, ruling on an application of the victim’s father, said the accused will
be produced before the session’s court on December 22. The 16-year-old student of Ryan
International School accused of murdering a junior will be tried as an adult, the Juvenile
Justice Board (JJB) in Gurugram. The Board, ruling on an application of the victim’s father,
said the juvenile would be tried as an adult and produced before the session’s court on
December. Mr. Tekriwal said the verdict meant that the juvenile, if convicted, would not be
set free after three years and could be sentenced to even 14 years in jail. “In case of
conviction, the juvenile will stay in the Observation Home till the age of 21. But as per
Section 21 of the JJ Act, he cannot be sentenced to death or life imprisonment.”

The lawyer said he was yet to receive the copy of the order, but the court had
broadly based its decision on the findings of the Social Investigation Report and the
Psychological Report of the juvenile and the amendments carried out in the Juvenile Justice
(Care and Protection of Children) Act, 2015 with effect from January 15, 2016. The two
reports had indicated that the juvenile was hyper-aggressive, upset and restless.

 GD Birla School child sexual assault incident –

A four-year-old girl was allegedly sexually assaulted by a PT teacher in a prominent Kolkata

school. The student was allegedly abused inside a toilet during school hours. A physical
education teacher at the high-profile GD Birla Centre for Education in Ranikuthi allegedly
lured the girl into the toilet where the sexual assault happened. The girl returned home with
blood stains on her uniform and was reportedly crying. Her mother noticed her bleeding from
genital area. The child was then rushed to the SSKM hospital, where doctors told the parents
about the sexual assault. The child identified the physical education teacher from a photo. She
has undergone tests, results of which are expected soon. On 2 December 2017, two teachers
of this school, Abhishek Roy and Md. Mofizul were arrested for sexually assaulting 4-year-
old student of this school. They were booked under the Protection of Children from Sexual
Offences Act. Moreover, it came to be known that the school did not implement an earlier

Page | 66
recommendation by CBSE of installing CCTV inside the school. The CBSE circular
mentioned, “Any violation or lapses with regard to safety and well being of children in school
campus would invite appropriate action including the disaffiliation of the school as per the
provisions under affiliation bye-laws of the board.” In 2014, a girl student was sexually
assaulted and the school authorities didn’t take any action. The two men had allegedly lured
the girl into the toilet with chocolates. “This is for the second time that such an incident has
happened at GD Birla School. In 2014, a girl student was sexually assaulted and the school
authorities didn’t take any action,” The management of Kolkata’s MP Birla Foundation
Higher Secondary School, on 4 December, suspended a staff member accused of having
sexually assaulted a student. After the GD Birla School child sexual assault incident. The
mother of a former student of MP Birla School told NDTV that her daughter was molested,
“not once but at least twice by school staff.” The school then suspended Manoj, who was a
part of the school’s non-teaching staff in connection with the case. He was later arrested by
the Kolkata police under sections of POCSO. In a statement, the school authorities said, a
complaint was received from parents of a girl student about alleged sexual misconduct
against her in September, 2017, but the complaint did not point out any individual. As per the
mother’s statement, her daughter was less than four years old when she was sexually assaulted at the
MP Birla School in Kolkata. Soon after, the girl was removed from the school by her parents.

 Case of a Government School in Chikkaballapur District, Karnataka -

In Karnataka, the South India Cell for Human Rights Education and Monitoring (SICHREM)
investigated allegations that a headmaster at a public school was molesting pupils. SICHREM
was asked to intervene by a parent sitting on the school's management committee who felt
that the state‘s education department had ignored the complaint. A SICHREM team visited
the school and interviewed the school authorities and more than 20 students. The mother of
the 12-year-old girl who made the allegations did not want to involve the police and so did
not have her daughter speak to SICHREM. The girl's sister, however, did speak to the
organization, and said that, “He [the headmaster] asked all the children to go to another
classroom, and told her [the sister] to come into his room. He hugged her and kissed her and
touched her private parts.”49

Other children said that the headmaster asked them do odd jobs for him, and if they
refused he used to “pinch their cheeks and breasts.” Following SICHREM's intervention, the

49
Interview with the child, recorded by SICHREM. Translation on file with Human Rights Watch

Page | 67
local education department sent a committee to investigate, but it found there was no
evidence against the teacher and cleared him of any wrongdoing. Gangadhara Reddy of
SICHREM believes that education officials have covered up the incident. He said the
department report, is biased and far from reality. We are urging the state commission for
protection of child rights to look seriously into this issue and take appropriate actions against
the accused.”

3-The flaws in the justice system

It is very critical to say anything about what happens after a child has been sexually abused
which holds significance not only for his/her well-being but also for the protection of other
children, because if the perpetrator is never identified or if/she allowed to move free, there
are high chances of further abuse. Sometimes, the complaints of the children are simply
rejected by the family members, Police and the medical experts. In most of the cases, the
perpetrator is often a family member or a person entrusted with care and custody of the child.
In such cases, the child would refrain from speaking up because of constant threat of the
family members. In a case before the Delhi court, the accused was convicted for having
abducted and raped a 6 year girl who was member of his family. The accused has earlier
raped another girl of his family but the case was not reported because of the stigma attached
as the family members believe that reporting a case will bring shame to their family. Also,
there have been cases where the mothers didn’t take any action because of fear of being
thrown out of the house by the in-laws. In other cases, the family members fear of being
ostracized from the society.

One of the most significant reasons why families don’t come forward to report the
cases of child sexual abuse because they think that they will not be treated sympathetically by
the police and the medical experts which further adds to their trauma. Many doctors in India
lack the competence to take such sensitive cases. Their role should include treating child well
and counselling him/her. Police officials also try to persuade the parties to take back their
cases. Sometimes courts also drag cases for years. This shows the inability of our criminal
justice system to deal with the sexual offences including minor which is a highly sensitive
issue. Furthermore, children are also abused in institutions like NGOs for orphans etc. which
are primarily established for the protection, welfare and development of a child.

Page | 68
4-Protection of Children from Sexual Offences Act, 2012

POCSO which was enacted in 2012 is gender neutral, makes it mandatory for the victims to
report the abuse, lists all kind of sexual offences against children and provides for their
protection during the judicial process. Some of the mandated lay down under POCSO are-

 The police officers in every circumstance must bring a case to the attention of the Child
Welfare Committee within 24 hours of receiving a report.
 The police officers must also be in civil clothes while recording the minor’s statement so
that the child does not get intimidated.
 The statement of the minor must be recorded in presence of the person whom he/she
trusts.
 The medical examination of the child for the collection of forensic evidence should only
be conducted by a lady doctor in presence of a person that the child trusts.
 Special courts have been set up under the act to conduct speedy and in-camera trials. It is
the duty of these court to ensure that the minor is not exposed to the accused while
recording his/ her statement, the identity of the minor remains undisclosed, the minor is
not asked to repeat his/her testimony in court and that minor can also give his/her
testimony through a video, the cases are not delayed and are disposed of within a year
from the date of it being reported, an interpreter, translator, special educator or any other
expert should be present in court if the minor needs any assistance, and the family of the
minor should be awarded compensation for medical treatment and rehabilitation.

5-Punishments under the Act

1. Penetrative sexual assault

The penetration can either be penile-vaginal, penile-oral, penile-urethral or penile-
anal, or object penetration. Section 4 of the act provides for punishment not less than
7 years which may extent to life imprisonment and a fine.
2. Aggravated penetrative sexual assault committed by a person of trust or authority
Section 6 of the act lays down the punishment which should not less than 10 years; it
may also extend to rigorous life imprisonment, and a fine.
3. Non-penetrative sexual assault committed with a sexual intent

Page | 69
 Non penetrative sexual assault includes touching the vagina, penis, anus or breast of
the child or asking the child to touch the vagina, penis, anus or breast of the
perpetrator or any other person or any other act done with sexual intention. In such
cases, Section 10 provides for punishment for not less than 3 years which may extend
to 5 years and a fine.
4. Aggravated non-penetrative sexual assault done by a person of trust and authority
Section 10 lays down the punishment which should not be less than 5 years and it may
also extend to 7 years, and a fine (Section 10).
5. Sexual harassment
Sexual harassment is caused by indecent and sexually explicit remarks, emails or
telephone calls; taunting, jeering, or posing a request for sexual favour. The
punishment is 3 years and a fine (Section 12).
6. Using a minor for pornographic purposes
It includes producing or distributing any pornographic content via print or
electronically. The punishment is 5 years and a fine and in case of second conviction,
the punishment would be 7 years and a fine (Section 14 (1))
7. Attempt of offence
Section 18 of the act provides for 1 year punishment and fine.
8. Abetment
The definition of abetment is same as defied under Section 107 and 108 of the IPC.
The punishment is same as that of the offence which is provided under Section 17 of
the act.
9. Failure to report an offence
The punishment is six months and a fine provided under Section 21 of the act.
CHAPTER-7
ANALYSIS OF JUDICIAL PRONOUNCEMENTS

Pre POCSO, 2012

1-Sakshi v. UOI 50

This was the case filed by an NGO called ‘Sakshi’ raising concern about the dramatic
increase of sexual violence against women and children and the implementation of the
50
AIR 2004 SC 3566

Page | 70
provisions of IPC namely 377, 375/376 and 354. The petitioners raised the problem of
confining rape cases only to penile-vaginal penetration which has now been amended by the
2013 Criminal Law amendment as it was violative of Article 21 of the Constitution. A
number of statistical data has revealed that children are often abused in manner other than the
penile/ vaginal penetration. It is often by means of penile/anal penetration, penile/oral
penetration, finger/vaginal penetration or object/ vaginal penetration. Also, putting these
cases within the ambit of Section 377 would be highly unjust. Petitioners had put emphasis
on Article 15 (3) of the Constitution which provides for special provisions for women and
children which necessarily implies ‘adequate provisions’.

2-Bachpan Bachao Andolan v. UOI 51

A PIL was filed in the Supreme Court on the wake of serious violations of child rights. The
petition was filed specifically to discourage child trafficking from circuses all over India.
Children are very frequently sexually abused at these places, which is a violation of Juvenile
Justice Act and other international treaties and covenants.

After POCSO:

POSCO, 2012 was implemented to make it easier for the victims of sexual abuse to get
justice. The Act directs the use of more humane ways to deal with victims and prohibit
victimization of the child at the hands of the judicial system. Because of which, the reporting
of such cases has doubled due to increased awareness.

1-Nishu v. Commissioner of Police, Delhi and ors. 52

Petitioner was a minor girl, kidnapped and repeatedly raped by a group of nine people. One
among the nine people was a police constable In Haryana Police. The prosecution failed to
present any medical reports or a copy of the FIR under Section 376D of the IPC and relevant
provisions of the POSCO, Act. The Court in this case said that it would be inappropriate to
exercise its jurisdiction under Article 32 as the case has been investigated by the Haryana
Police.

51
AIR 2011 SC 3361
52
2014(3)ACR2516(SC)

Page | 71
2-Avinash v State of Karnataka 53

The appellant kidnapped the victim and had multiple sexual intercourses with her. A charge
sheet was filed against the victim under Section 366 of the IPC and Section 4 of the POCSO,
Act. The honourable High Court emphasized on the age of victim as it is the major deciding
factor and the court set aside the conviction in support of getting reliable evidence and
disposing the case in accordance with law.

The courts have showed an inclination towards giving maximum punishment to the
convicts under Section 12 of the POCSO Act, 2012 to give strong message to society because
crimes of child sexual abuse are on continuous increase. However that is possible only when
reliable evidences without any distortion are presented by the Police and the medical experts.
In a case before the Delhi district court where the accused was charged with Section 8, 12 and
11 of the POCSO Act and Section 506 of the IPC for misbehaving with the victim, the court
said though proper evidences are not disclosed by the investigative agency, the testimony of
the child victim inspired trust and confidence

In another case, a girl was abused by her father since she was 12 years of age. The
court acknowledged that the investigation was done in a most casual and irresponsible even
though the girl was abused for around five years. The court refused to proceed with the
matter until further examination is done by the investigation agency and the Police since the
medical report and the charge sheet had numerous loopholes. This is a classic case where the
victim became more vulnerable because of the inadequacy of investigative agency and the
police and the matter was delayed.

3-Marimuthu v. The Inspector of Police, Ayakudi Police Station and Others

(2016) 54

This case was decided by Justice Dr. S. Vimala of the High Court of Madras (Madurai
bench).The father of a minor girl aged 17 years 8 months complained that his daughter had
been kidnapped by the accused, aged 17 years 6 months. Investigation found that the girl
married the accused out of her own free volition and became pregnant with his child. Her
father presented a writ petition before the High Court asking for the abortion of his
daughter’s foetus, while she herself did not wish to terminate her pregnancy. The Court

53
2004 (13) SCC 375
54
MANU/TN/2236/2016.

Page | 72
examined the matter and found that the marriage was not void under section 12 (a) to (c), of
the Prohibition of Child Marriages Act, 2006, which nullifies marriages when a minor: (a) is
taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled or
deceitfully induced to go from any place; or (c) sold for the purpose of marriage and made to
go through a form of marriage or if the minor is married after which the minor is sold or
trafficked or used for immoral purposes. Hence, the request of the father to terminate the
pregnancy of the daughter without her consent was not permitted by the Court.

The Court referred to the study by the National Law School, Bangalore where it stated
that the tragedy of POCSO lies in the fact that under the guise of protecting children, minors
are being dragged into the criminal justice system, which results in trauma. The Court quoted
the National Commission for Protection of Child Rights which had proposed in 2010 that any
consensual sexual act should not be an offence when it involves two persons who are both
above 14 and are either of the same age or the age difference is not more than three years.
The Court stated that the Prohibition of Child Marriage Act 2006 is silent on sexual relations
in a child marriage, and extends legitimacy to children born of child marriages, thereby
indirectly acknowledging sexual intercourse within a child marriage. Under the IPC, sexual
intercourse by a man with his wife above 15 years is an exception to rape. The Criminal Law
(Amendment) Act 2013 raised the age of consent to 18 years but did not disturb this
exception. As a result, sexual intercourse with a wife above 15 years and below 18 years of
age will not amount to rape under the IPC.

The Courts stated that it is time that child marriage be prohibited, but it is unclear what
happens to the marriage which is already performed due to lack of awareness. The Court
dismissed the petition stating that this case has ramifications which touch upon the
constitutional validity of the POCSO and hence cannot be decided by the single bench of this
Court.

4-Satpal v. State of H.P. and Others (2015) 55

This case was decided by Justice Rajiv Sharma in the High Court of Himachal Pradesh at
Shimla. The petitioner was in love with a woman named Pooja who was below the age of 18.
55
MANU/HP/1079/2015.

Page | 73
A case was charged against the petitioner under section 363 IPC (punishment for kidnapping)
and 366 IPC (kidnapping, abducting or inducing woman to compel her marriage, etc.), as
well as section 4 (penetrative sexual assault) of the POCSO. A baby daughter was born to
them the following year. The petitioner was before the High Court to invoke section 482 of
the Code of Criminal Procedure 1973 in order to quash the pending criminal proceedings
before him. The High Court upheld the principle enunciated by the Supreme Court in
Jitendra Raghuvanshi and others v. Babita Raghuvanshi & Another56 that even in non-
compoundable offences pertaining to matrimonial disputes, if the Court is satisfied that the
parties have settled the disputes amicably and without any pressure, then criminal
proceedings with respect to offences can be quashed in order to secure the ends of justice.
Hence it allowed the petition.

5-Yunusbhai Usmanbhai Shaikh v. State of Gujarat and Others (2015) 57

This case was decided by Justice J.B. Pardiwala of the High Court of Gujarat. The daughter
of the complainant, a 16-year-old girl, got married to the accused according to Muslim rites.
The accused was 12 years older than her. He was charged under section 363(punishment for
kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage, etc.)
and 376 (punishment for rape) IPC and section 18 (attempt to commit an offence) POCSO.

It was found that the daughter of the complainant admitted she had accompanied the accused
of her own free will. It could not be proved that she had received any promise or assurance or
any tempting offer from the accused for which she was forced or enticed to leave her parental
home. Hence it could not be proved that he had kidnapped her, nor could rape be proved.
Pending criminal proceedings against him were liable to be quashed. In paragraph 30, the
Court stated that the object of enacting the Prohibition of Child Marriages Act 2006 was to
curb the menace of child marriages, which is most common among the Muslim community
and in rural areas.

It quoted the case of Association for Social Justice and Research and Delhi High
Court which cited poverty, culture, tradition and values based on patriarchal norms as reasons
for child marriage. Low level of education of girls, lower status of girls, considering girls as a

56
MANU/SC/0239/2013.
57
MANU/GJ/0876/2015.

Page | 74
financial burden, social customs, and a mixture of these causes result in the imprisonment of
girls in marriage without consent. The Delhi High Court cited some of the ill- effects of child
marriage:-

(i) Girls who get married at an early age are often more susceptible to the health risks
associated with early sexual initiation and child bearing, including HIV and obstetric fistula.

(ii) Young girls who lack status, power and maturity are often subjected to domestic violence,
sexual abuse and social isolation.

(iii) Early marriage almost always deprives girls of their education or meaningful work,
which contributes to persistent poverty.

(iv) Child marriage perpetuates an unrelenting cycle of gender inequality, sickness and
poverty.

(v) Girls who marry at an early age when they are not physically mature leads to highest rates
of maternal and child mortality.

It was held by the High Court of Gujarat that no case was made out for the offences
charged upon the accused husband. Instead, if during investigation it is found out that a
particular person had performed, conducted, directed or abetted the marriage, such person
would be accused under section 10 of the Prohibition of Child Marriage Act 2006.

6-Renu v. State of U.P. and Others (2015) 58

This case was decided by Justice Ajai Lamba and Justice Ashok Pal Singh of the Allahabad
High Court (Lucknow Bench).The petitioner had eloped with her husband and was pregnant
with child. She was detained by order of a magistrate to a protection home, by initiation of
criminal proceedings by her mother, stating that the petitioner’s husband induced and
kidnapped her into marriage. He was charged under section 363 (punishment for kidnapping)
and 366 (kidnapping, abducting or inducing woman to compel her marriage, etc.) of the IPC
and section 3 (penetrative sexual assault) and section 4 (punishment for penetrative sexual
assault) of the POCSO. The High Court directed the petitioner to be released from the
protection home and be reunited with her husband, as she did not want to go with her parents.
It was stated by the Court that a large number of cases occur when parents do not accept their
daughter’s choice of marriage on grounds of caste, financial conditions, social status, or
58
MANU/UP/1438/2015

Page | 75
religion. Even though the girl elopes voluntarily, criminal proceedings are initiated on
grounds of abduction, kidnapping or inducing the girl to get married. In most cases, the
complainant takes a ground that the daughter is a minor, for which school certificates are
relied upon.

7-Keerti Gupta and Others v. State of U.P. and Others (2016) 59

This was decided before the Allahabad High Court (Lucknow Bench) by Justice Ajai Lamba
and Justice Aditya Nath Mittal. The first petitioner, who was a minor girl just a few months
shy of 18, left her parental home and eloped with her boyfriend, the second petitioner. After
living together for a month, they got married in a temple. The parents of the first petitioner
charged the second petitioner with offences under section 363 (punishment for kidnapping),
section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc.), section
504 (intentional insult with intent to provoke breach of the peace) and section 506
(punishment for criminal intimidation) of the IPC as well as section 7 (sexual assault) and
section 8 (punishment for sexual assault) of the POCSO. The High Court stated that the
impugned proceedings have been initiated in abuse of process of the Court and process of the
law.

A personal grudge against the daughter’s marriage of choice was being settled by
virtue of initiating criminal proceedings, which would abrogate the constitutional right of the
petitioners to get married as per their discretion, especially since there is no evidence to
indicate that the marriage is void. The High Court quashed criminal proceedings against the
second petitioner.

8-Sunil Mahadev Patil v. The State of Maharashtra (2015) 60

This was decided by Justice Mridula Bhatkar of the High Court of Bombay. The 15-year-old
prosecutrix and the 20-year-old applicant were in love, so they eloped. They performed a
ceremony in lieu of marriage and started residing together in a relative’s home. The applicant
was charged by the prosecutrix’s father of having committed the offences of sections 376
(punishment for rape), 363(punishment for kidnapping) and 366A (procreation of minor girl)
of the IPC as well as offences under sections 3 and 4 (penetrative sexual assault), 5 and 6
59
MANU/UP/0464/2016
60
MANU/MH/3141/2015.

Page | 76
(aggravated penetrative sexual assault) of the POCSO. The High Court stated that
biologically, whenever a child reaches puberty, the child starts understanding his or her
sexual needs. Some sects and religions acknowledge this biological factor and perform early
age marriages in order to regularise sexual behaviour in the community. These social and
biological factors meant that the lawmakers used the age of 15 as the age of consent for
marriage. In such cases, the trial judges ought to pass orders of bail. The High Court allowed
the bail application and summed up the considerations regarding applications of bail as
follows:

When a boy and a minor girl are in love with each other and chose to live together
without consent of their parents, then the following factors are to be considered:

 What is the age of the prosecutrix’s, who is minor

 Whether the act is violent or not.
 Whether there are antecedents or not.
 Whether the offender is capable of repeating the Act or not.
 Whether there is likelihood of threats or intimidation, if at all the boy is released.
 Whether any chance of tampering with the material witnesses when their statements are
recorded.
 It is also to be taken into account in such cases that a boy in his early 20s deserves to get
employment and to plan, stabilize and secure his future.

Page | 77
 CHAPTER-8

COMPARATIVE ANALYSIS OF LAWS OF DIFFERENT

COUNTRIES

Internationally, child sexual abuse is recognized as a serious crime against children.

However, the laws vary from country to country by their local definition of who is a child and
what constitutes child abuse. Child sexual abuse is a violation of every child’s right when an
adult tries to have a sexual intercourse with a minor who is doli incapax for giving consent.
This is also called as statutory rape. The researcher has examined the laws of some countries
where rate of child sexual abuse is very high and others where the rate is relatively low.

1-South Africa
Page | 78
South Africa is one among the top five countries which have the highest rate of child sexual
abuse. According to a 2009 report by trade union solidarity helping hand, one child is raped
every three minutes in South Africa.

Chapter 3 of the Criminal (Sexual offences and related matters) Act, 2007 deals with
sexual offences against children.61 It envisages

 Statutory rape which includes acts of consensual sexual penetration

 Statutory sexual assault which includes acts of consensual sexual violation.
 Sexual exploitation and sexual grooming of children
 Exposing children to explicit pornographic content and using children for pornographic
purposes
 Forcing and casing child to witness sexual acts, self-masturbation and display of genital
organs.
 Sexual exploitation of disabled children in the ways mentioned above.

The South African Supreme also made it illegal for a person previously convicted of a sexual
offence to loiter near public places like schools, playgrounds etc. in order to protect children
from sexual assault.

2-United Kingdom

UK also witnesses very high rate of child sexual abuse. According to National Society for
Prevention of Cruelty to Children, in 2011/12 there were 36000 cases of sexual offences
against children were recorded.

The 2003 Sexual Offences Act deals with following sexual offences:

 Trafficking children for the purpose of sexual exploitation.

 Child sexual abuse by means of prostitution and pornography which includes encouraging
or facilitating prostitution or pornography.
 Sexual abuse of children with mental disorder.

61
http://www.justice.gov.za/legislation/acts/2007-032.pdf

Page | 79
 Voyeurism, exposure of ones genitals to the child and engaging in sexual acts in public
lavatory. Also, the accused can no longer argue that the child consented for the sexual act.
Any sexual intercourse and other non-penetrative activities like sexual assault, or causing
or inciting a child to engage in sexual activity. These cover a range of both physical and
non-physical contact.

3-Netherlands

Child abuse as form of maltreatment of children has the lowest rate (4%) in Netherlands. The
probable reason for this is the child sexual abuse policy in the country. In Netherlands,
various Advice and Reporting Centres on Domestic Violence and Child Abuse (AMHK) are
setup and children or adult who suspect sexual abuse are given a reporting code. These
centres are very child friendly with counselling centres. As soon as any case is reported at the
centre, it assumes the responsibility of investigating the circumstances and finding out if there
is a need of filing a case in law and in case of need, the centre ensures that the adequate
action is taken by the courts in order to protect child’s interest.

Child abuse in the country is primarily seen as a family related, medical or psychosocial
problem. The legal proceedings against child abuse can be instituted under these laws.

i. The UN Convention on the Rights of the Child which was ratified by the Netherlands in
March 1995. Articles 4, 5, 6, 18, 19 and 27 of the Covenant are relevant to deal with the
instances of child abuse.

ii. Dutch civil Law An important advancement in the area of child rights was the inclusion of
an additional reference in Article 247 which reads as “Parents are under an obligation to take
care of their children and to raise them without using either mental or physical violence or
any other type of humiliating treatment”. This has resulted in reduction of child sexual abuse
cases.

iii. Criminal Law Criminal law finds it reference in very serious cases of physical sexual
offences.

iv. Action plan ‘children safe’.

Page | 80
4-US Federal Law

All states in US have their different laws dealing with child sexual abuse. Federal Law is
applicable on the federal lands which include areas such as military base, Indian territories
and other government owned places. 18U.S.C. Section 2241, 2242, 2243, 2244 deal with
aggravated sexual abuse, sexual abuse, sexual abuse of a minor or ward respectively.
Offenders under these sections are fined as well as punished. An offender faces harsh
sentences if the crime that occurred is of aggravated nature for instance he/she abused the
children by posing threat of serious injury like death, he/she kidnapped the child for
committing child sexual abuse.

Section 2256 of title 18 U.S.C. provides for definition of child pornography as

visually depicting any sexually explicit conduct involving a minor (less tha18 years of age).
These representations include images, videos or computer generated images which
indistinguishable from the actual minor, any data stored on the computer which can be
converted into an image of child pornography. Any depiction of minor less than 18 years of
age is illegal irrespective of the child’s consent. Under Section 2251, persuading, enticing,
coercing and inducing child to engage in any sexually implicit act is illegal.

Any individual who attempts to conspire for such purpose is also subjected to punishment
under the federal law. Furthermore, Section 2251A of Title 18, United States Code,
specifically prohibits selling, buying or transferring the custody of minor for purposes of
producing child pornography specifically done by the parents or any legal guardian or other
person in custody or control of that minor under the age of 18.

Lastly title 18United States Code, Section 2260 makes it illegal for a person outside
the United States to produce, receive, transport, ship, or distribute child pornography with
the intention to import or transmit such visual depiction into the United States. Any violation
of federal law is a serious offence and the perpetrators are subjected to severe punishment
with fine. Convicted offenders may even face harsher punishment in case they have been
earlier convicted of the same crime. In addition to federal law, sexual offender can also be
punished under the state law.

5-Canada

Page | 81
The Criminal code and the Canada evidence Act are two federal laws covering criminal
justice matters in Canada. The amendment to these laws in January 1988 created child sexual
abuse offences thus expanding the opportunity for courts to take the testimony of child in
cases of their sexual abuse.62 These are the offences related to children covered under the
Canadian Criminal Code:

i. Sexual interference

ii. Invitation to sexual touching

iii. Sexual exploitation of young children

iv. Anal intercourse

v. Bestiality

vi. Offences involving parents or guardian in sexual activity of a child

vii. Exposing genitals to a child

viii. Vagrancy

ix. Offences in relation to child prostitution

x. Incest

xi. Indecent acts

xii. Sexual assault

xiii. Sexual assault with a weapon or with a threat of causing bodily harm xiv. Aggravated
sexual assault

The definition of these crimes under the Criminal Code reinforces the protection and mental
development of a child. Individual who sexual abuse a child cannot take a plea that a child
consented to such sexual activity. Under Canadian law, children above 12 years but below the
age of 14 years are considered incapable of giving consent to any sexual activity.
Furthermore, the consent given by persons above 14 years of age but below the age of 18 is

62
https://www.ncjrs.gov/pdffiles1/Digitization/128329NCJRS.pdf

Page | 82
considered invalid if the other person engaged in the sexual act is in a position of trust and or
authority over them.

An offender cannot take a defence that he believed that the child was older; this
defence can only sustain if he/ she took reasonable steps to find the age of the concerned
child. Child victims are also protected at the time of the prosecution. Corroboration of a
child’s testimony is not required for conviction of the accused. Publication of the information
about the child which would identify the child victim is prohibited. A child can also testify
outside the court room in presence of a judge or jury who will carefully observe the child
while he/she is giving the testimony. Video clips recorded by the child for testimony within a
reasonable time are also admissible.

Other institutions also exist for the protection of the child. The child welfare systems
protect children, while the criminal justice system protects the society from potential
offenders. Both of these institutions work side by side to carry out the dual responsibility to
ultimately achieve the same goal of protecting members of the society. Further, prosecution
under Criminal law is designed in a way not only to protect the child but also to safeguard the
rights of the accused in order to balance the interest of both the concerned parties.

6-Germany

Germany follows legal codes and procedures which give more protection to children as
compared to many other countries. According to the Section 176 of the German Criminal
law, children under 14 years of age are considered doli incapax for giving consent to any
kind of sexual activity. Under Section 174, engaging in sexual activity with a person below
18 years is also punishable in certain circumstances for e.g. when the child is adopted and is
in a state of dependence. The criminal procedure also guarantees maximum child protection.
Responsible police officers themselves interrogate the child as soon as they receive any
complaint.

7-Zimbabwe

According to the Zimbabwe Police reporting, 100 girls are sexually abused every day in
Zimbabwe. Mostly, children of the development workers are the victims of the abuse but the
issue is how should they confront such a menace?

Page | 83
 Zimbabwe has ratified the UN convention on the rights of the child and the African
Charter on the rights and welfare of the child. 63 These covenants recognize the fundamental
duties and responsibilities of the parents and legal guardians to work in the best interest of the
children. Children under legal framework are still considered as those who need protection.

To tackle the problem of increasing child sexual abuse, Zimbabwe has dual theory of
law comprising of Roman-Dutch Common Law statutes and the African Customary laws.
This dual theory of Justice System is sanctioned by the Constitution. Criminal Law
(codification and reform) Act and Domestic violence Act are the special legislations to
protect the children from sexual abuse. Acts resulting in child abuse are criminalized and are
made punishable with imprisonment or fine. The prosecution is generally done by the state
represented by its official attorney and in some cases there is also a provision for private
proceedings.

The primary aim of the state is to punish the accused and not to benefit the victim
however it is the duty of the victim to give genuine testimony otherwise she’ll be punished
for breaching such duty under the law.

The criminal procedure and evidence act which was amended in 1997 makes it
mandate for a criminal court to adopt protective measures for vulnerable witnesses. Such
measures would include appointing intermediaries and support-staff for the witnesses and the
state will ensure that the witness gives evidence in a position or place where the likelihood of
the witness suffering from any kind of stress and fear is very less. It may be in or out of
presence of the accused. The victim and the witnesses are given constant moral support by
the intermediaries hired by the state.

63
African Charter on the Rights and Welfare of the Child OAU Doc. CAB/LEG/24.9/49 (1990) (African
Charter)

Page | 84
 CHAPTER-9

CHILD SEXUAL ABUSE IN INDIA: CHEMICAL

CASTRATION A SUITABLE PUNISHMENT FOR
PEDOPHILES

Child sexual abuses are dark realities in Indian society like in any other nation. 53 percent of
our children are sexually abused, according to a statistic from a survey done by the
Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one
out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child
sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a
study among 348 girls. 15% were used for masturbation mostly by male relatives when they
were less than 10 years old. 75% of the abusers were adult family members. A report from
RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual
abuse titled Voices from the Silent Zone suggests that nearly three-quarters of upper and
middle class Indian girls are abused by a family member, often by an uncle, a cousin or an
elder brother.

Page | 85
1-Chemical castration for male pedophiles

Term ‘Chemical Castration' is a misnomer as no physical changes are made in the body. It is
a medical process of administration of FDA approved Depo-Provera that lowers testosterone
levels in males by reducing androgen level in blood and thus quelling the unusual sex drive. 64
Pedophilia is a psychosexual disorder when a person desires for sexual relations with
prepubescent children. Diagnostic and Statistical Manual of Mental Disorders gives a test of
pedophilia. There is another test called penile plethysmography.65 But it is very difficult to
prove pedophilia. As this psychological factor is very difficult to prove it makes it difficult to
distinguish it from other child molestations and gives rise to another question that why is it
necessary to have a different form of punishment that is chemical castration. It is necessary to
understand why to have chemical castration only for child molesters. South Korea felt that
sexual crimes committed against minors have more mental violence effect than that on grown
up adults. The child is certainly ignorant and sensitive than an adult. It has a greater divesting
impact on their lives than adults. And it is it is proved that generally those who become a
victim of sexual abuse in the childhood develop pedophilic tendencies. Thus, South Korea
intensified the punishment for those acts. Because chemical castration is a punishment of
higher degree than rigorous imprisonment which is the usual punishment available for child-
molestation.66 Thus, it is necessary to understand that pedophiles need treatment more
punishment and Chemical Castration is considered the same.

2-Intra-familial child sexual abuse

Rape is abominable and ghastly and worsens and becomes inhuman and barbaric when the
victim is a small female child, close relative of the abuser over whom the family has repose
faith as has happened in the present case where the minor has been subjected to unwanted
physical contact by a perverted male adult.

64
Christopher Meisenkothen, Chemical Castration - Breaking the Cycle of Paraphiliac Recidivism, SOCIAL
JUSTICE Vol. 26, No. 1, 75 (1999), available at http://www.jstor.org/stable/29767116.
65
Courtney Flack, Chemical Castration, an Effective Treatment for the Sexually Motivated Pedophile, an
Impotent Alternative to Traditional Incarceration, JOURNAL OF LAW IN SOCIETY 173 (2005), available
66
M. Glassey, Cycle Of Child Sexual Abuse: Links Between Being A Victim And Becoming A Perpetrator,
BRITISH JOURNAL OF PSYCHOLOGY, available at http://bjp.rcpsych.org/content/179/6/482.full.

Page | 86
 Due to her tender age, neither the body of the child was fully developed nor, she was
in a position to offer any resistance whenever violated. In most of the cases of child sexual
abuse by close relatives the accused has taken advantage of a helpless and defenceless child
who did not even understand the gravity of the offence or tried to escape and was an easy and
vulnerable prey. In spite of the tender age of the child, the accused went on to commit the
ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and
giving her a lifelong trauma.

Recent years have seen a spurt in molestation, rape and other sexual offences. Sexual
predators moving around the city spare none. Be it a child of few months or a senior citizen
in a twilight years. Young girls are not safe even in their own families where fathers and
brothers turn predators. It is sickening indeed. Rape is a growing menace which the
administration is finding hard to tackle. Even stringent punishments so prescribed under the
law do not appear to be having any deterrence.

World over Rape has been considered most abominable and most developed societies
provide for a stringent punishment for the same considering it as a grave offence but
punishment in most of the countries is imprisonment. In many developed countries Death
Penalty applies in cases of aggravated rape indicating the severity with which this crime has
been viewed. In fact many developed countries like USA, UK, Germany, and Israel have
experimented with alternatives such as Surgical and Chemical Castration of rapists and
molesters particularly serial offenders, child molesters and pedophiles.

3-What is chemical castration?

 Chemical Castration is the administration of medication designed to reduce libido and

sexual activity, usually in the hope of preventing rapists, child molesters and other sex
offenders from repeating their crimes, unlike Surgical Castration, where the testes or
ovaries are removed through an incision in the body.
 Chemical Castration does not actually castrate the person, nor is it a form of sterilization
and for this reason the term "Chemical Castration" has been called a misnomer.
 Castration has, from time to time, been used as an instrument of public and/or judicial
policy despite concerns over human rights and possible side effects

Page | 87
4-Global Scenario

Surgical and Chemical Castration is a punishment prescribed for rape and, controversially,
some U.S. jurisdictions allow shorter sentences for sex criminals who agree to Voluntary
Chemical Castration.

California was the first U.S. State to specify the use of Chemical Castration as a
punishment for child molestation, following the passage of a modification to Section 645 of
the California Penal Code in the year 1996. This law stipulates that anyone convicted of child
molestation with a minor less than 13 years of age may be treated with the drug Depo Provera
if they are on parole, if it is their second offense and offenders may not reject the treatment.
The most common drug used for Chemical Castration is Cyproterone Acetate which is used
throughout in European countries as compared to MPA (Medroxy Progesterone Acetate)
which is the preferred drug in America. The passage of this law led to similar laws in other
states, such as Florida's Statute Section 794.0235 which was passed into law in 1997 and as
in California, treatment is mandatory after a second offense.

Besides California and Florida, at least seven other states, including Georgia, Iowa,
Louisiana, Montana, Oregon, Texas and Wisconsin, have experimented with Chemical
Castration. In Iowa, as in California and Florida, offenders may be sentenced to chemical
castration in all cases involving serious sex offenses. On June 25, 2008 Louisiana Governor
Bobby Jindal signed Senate Bill 144, allowing Louisiana judges to sentence convicted rapists
to chemical castration. Poland had passed legislation for forcible Chemical Castration for
child molesters coupled with psychic treatment during the term. Germany and Israel are other
examples of developed countries where voluntarily chemical castration is a punishment for
child rapists. Similarly Madoza a province in Argentina passed a law in March 2010 which
rules the use of Chemical Castration for rapist but they must voluntarily go it.

Chemical Castration is a human alternative to lifelong imprisonment or surgical

castration. Many developed countries use it as a condition for probation or for the purpose of
imposing lesser punishment in case of Plea Bargaining. Although Chemical Castration is not
the perfect solution to inhibit child molestation, it certainly discourages sexual assault better
than incarceration.

Page | 88
5-How chemical castration works?

Injections of Depo-Provera, Cyproterone Acetate and MPA (Medroxy Progesterone Acetate)

decrease the aggressive tendencies that lead to rape in males. Castration also discourages
sexual fantasies and eradicates sexual obsessions.

Pedophiles are reduced to apathetic pacifists. Regulated chemical castration should be

encouraged as an alternative to prison for child molesters in order to stop recidivism and
decrease instances of sexual assault.

6-Indian Scenario

Ironically, the Indian legislatures are yet to take notice of this alarming situation and address
the issue with all seriousness by exploring the possibility of permitting the imposition of
alternative sentences of Surgical Castration or Chemical Castration particularly in cases
involving rape of minors, serial offenders and child molesters or as a condition for Probation,
or as an alternative sentence in case of Plea Bargaining. I am not oblivious of the fact that
arguments are bound to be raised against the above by some Rights Activists but that in my
view would be sheer hypocrisy given the damage the rapist and sexual predators do to their
victims. The jurist world over are undivided in their view that Chemical Castration is
required to be mandated for incestuous offenders, repeated sex offenders, pedophiles and
molesters.

Page | 89
 CHAPTER-10

COMMERCIAL SEXUAL EXPLOITATION

Commercial sexual exploitation of children is one of the worst forms of child labour and a
modern form of slavery. Sexually exploited children are often treated as criminals. As
defined in the Declaration of the First World Congress against Commercial Sexual
Exploitation of Children, held in Stockholm in 1996, commercial sexual exploitation of
children is sexual abuse by an adult accompanied by remuneration in cash or in kind to the
child or third person(s). The commitments made in Stockholm were reaffirmed in Yokohama,
Japan, in 2001 at the Second World Congress.

1-Facts and Figures

Page | 90
  According to a recent global estimate by the International Labour Organization, of the
12.3 million people who are victims of forced labour, 1.39 million are involved in
forced commercial sexual exploitation and 40–50 per cent are children.67
 An estimated 12,000 Nepalese children, mainly girls, are trafficked for commercial
sexual exploitation each year within Nepal or to brothels in India and other
countries.68
 From 28,000 to 30,000 children under the age of 18, approximately half of them 10–
14 years old, are used in prostitution in South Africa.69

2-Government commitment and capacity

Recognition and acknowledgement by governments of the existence of sexual exploitation is

crucial. Response mechanisms, including creating, enforcing and implementing appropriate
legal frameworks to protect children and punish the perpetrators, are essential.

3-Legislation and enforcement

Police, judiciary, officials and service providers who work with children should be aware of
the problem and equipped to address it. Neither the filing of a complaint nor prosecution of
an offence should require the permission of the child’s parents. Laws must punish those who
buy sex from children; children who sell sex are victims and should not be treated as
criminals.

67
International labour organization, A Global Alliance against Forced Labour: Global report under the follow-
up to the ILO Declaration on Fundamental Principles and Rights at Work 2005, report i (B), international labour
Conference 93rd session 2005, geneva, 2005, pp. 12, 15.
68
International labour organization, international Programme on the elimination of Child labour, ‘Facts on
Commercial Sexual exploitation of Children’, March 2003, available at <www.ilo.org/childlabour>.
69
International labour organization, international Programme on the elimination of Child labour, Unbearable to
the Human Heart: Child trafficking and action to eliminate it, ilo, geneva, 2000, p. 17.

Page | 91
4-Attitudes, customs and practices

These often enable, normalize and condone the demand for commercial sexual exploitation.
Communities are often reluctant to intervene in cases of sexual exploitation due to lack of
knowledge, lack of understanding about the harm to children, fear and intimidation, or for
economic reasons.

5-Open discussion

The media can help protect children by providing information on the dangers of sexual
exploitation and on penalties for exploiters. While avoiding reporting that violates children’s
rights, the media can be a valuable tool in mobilizing public opinion to participate in the
struggle against sexual exploitation.

6-Children’s life skills, knowledge and participation

Trafficked children often end up in situations of sexual exploitation, and their knowledge of
how to avoid the risks, of strategies to protect themselves and of where to obtain help is key
to making them less vulnerable. Teachers, coaches and community leaders can help inform
children about their rights and how best to protect themselves. Sexual health education is
important, because it enables children to protect themselves against sexually transmitted
diseases such as HIV/AIDS, also reducing the incidence of adolescent pregnancy.

7-Capacity of families and communities

Parents, teachers, social workers and community leaders should be able to provide
information to children and answer their questions. Law enforcement, including police,
judges and lawyers, should be trained and made aware that children who are sexually
exploited need assistance and should never be criminalized and prosecuted. The travel and

Page | 92
tourism industry can raise awareness about the illegality of sexual exploitation of children;
provide information on penalties, and train staff and employers on where to report cases.

8-Essential services, including prevention, recovery and reintegration

School attendance protects children and makes them less exposed and vulnerable. Children
may also need assistance in getting out of commercial sexual exploitation, accessing
appropriate medical and psychosocial care, finding long-term solutions and, whenever
possible and safe, returning to their families.

9-Monitoring, reporting and oversight

Tracking cases of sexual abuse, of arrests, or of disappearances of girls or boys is essential

since sexual exploitation often thrives on secrecy. Measures that have proved useful include
telephone hotlines, easy access to confidential counselling and recruitment of female police
officers

10-Examples of UNICEF in action

Internationally, UNICEF, the World Tourism Organization and ECPAT (End Child
Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes)
International launched a Code of Conduct for the Protection of Children from Sexual
Exploitation in Travel and Tourism. The project aims to involve the tourism industry in
actively combating child sex tourism.

In Indonesia, pilot interventions on the sexual exploitation and trafficking of children

carried out by UNICEF in 2005 in two selected districts in West and Central Java helped
raise awareness of the risks of sexual exploitation and trafficking. The projects helped build
the capacities of parents, community leaders, law enforcement officials, policy makers and
service providers to protect children.

Page | 93
 In South Africa, UNICEF contributed to raising awareness on child pornography by
lending technical and financial support to the National Child Pornography Conference held in
May 2005. The conference adopted an Action Plan for the Elimination of Child Pornography.

CHAPTER-11

LATEST LEADING CASES FOR SEXUAL ABUSE OF

CHILDREN

1. Independent Thought vs. Union of India (2017) 70

The Supreme Court of India delivered a landmark judgment and lead down Exception 2 to
Section 375 of the Indian Penal Code, 1860 to be meaningfully read as “Sexual intercourse or
sexual acts by a man with his own wife, the wife not being under eighteen years (instead of
70
W.P. (c) No. 382/2013

Page | 94
fifteen years as provided in the Indian Penal Code, 1860) of age, is not rape.” It was,
however, careful in recording that it had not dealt with the larger issue of “marital rape” of
adult women since that issue was not raised before it. The concurring judgment of the other
Learned Judge while reading down the impugned provision chose to clarify that Section
198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can
be taken only in accordance with the provisions of Section 198(6) of the Code. The
concurring judgment has also recorded that it was not touching upon the issue of “marital
rape”.
The challenge in the Writ Petition filed under Article 32 of the Constitution of
India was to Exception 2 of Section 375 of IPC which provides that sexual intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not
rape. Poignantly, the age of consent has been prescribed in description sixth to Section 375 to
mean 18 years. It was inter-alia contended that if a girl child was between 15 and 18 years of
age and was married; her husband could have non-consensual sexual intercourse with her,
without being penalized, in terms of Exception 2 to Section 375 of IPC. The Hon’ble
Supreme Court in an erudite and beautifully written judgment after analyzing the
recommendations of the Law Commission of India reports, detailed report submitted by the
Secretary General of the United Nations to the General Assembly called the “In-depth Study
on all forms of violence against Women”, reports submitted to the Human Rights Council,
Child Marriage Restraint Act, 1929, Protection of Human Rights Act, 1993, Protection of
Women from Domestic Violence Act, 2005 (DV Act).
Prohibition of Child Marriage Act, 2006 (PCMA), Protection of Children from
Sexual Offences Act, 2012 (POCSO), Juvenile Justice (Care and Protection of Children) Act,
2015 (JJ Act), various International Conventions and the Constitution of India come to a
conclusion that Exception 2 to Section 375 of IPC must be read down and the age of 15 years
mentioned therein must be read as 18 years. The Hon’ble Supreme Court has captured the
ethos and spirit of Articles 15(3) and 21 of the Constitution and held that an interpretation of
a provision must be in keeping with the best interest of the girl child. The judgment has also
reinforced the concept of bodily integrity and reproductive choice of the girl child.

2. State vs. Vijay @ Bittu (2010) 71

World Health Organisation (WHO) estimates that globally, 8 percent of boys and 25 percent

71
AIR S.C. 135/09

Page | 95
of girls below age 18 suffer sexual abuse of some kind every year. India has the dubious
distinction of having the world's largest number of sexually abused children with
a child below 16 years raped every 155th minute, a child below 10 every 13th hour, and one
in every 10 children sexually abused at any point in time. An estimated 6.00,000
7,00,000 children are sexually abused in India. Government of India, in report to the UN
Committee on the Rights of the Child, presented in this case. Sexual abuse of a child is the
involvement of a child in a sexual activity that he or she does not fully comprehend, is unable
to give informed consent to, or that violate the laws or social taboos of society. The data is
merely the TIP of an iceberg as child sexual abuse cases remain unreported and under-
reported, cloaked in secrecy, taboo and traditional patriarchal mind sets which
subsumes child's victimization to adult dominance. Contrary to popular belief that the threat
of sexual abuse is always from outsiders, the abuser in almost 90 per cent cases is someone
the child knows and trusts. He may be a member of the family - father, uncle, cousin older
siblings or servants, driver's gardeners, family friends or neighbours. In the present case, both
the prosecutrix’s is minor aged about 9 years at the time of commission of offence. The
convict shattered the dignity of the prosecutrix’s. Prosecutrix’s has to bear the burden of the
act committed by the convict throughout her life. The physical scar may heal up, but the
mental scar will always remain. Child sexual abuse is a serious and heinous offence against
the society and humanity. To show mercy in child sexual abuse case would be a travesty of
justice. The socio-economic status of the convict in child sexual abuse case is not a relevant
consideration in awarding punishment. 

3. Ms. Eera Through Dr. Manjula vs. State (Govt. of NCT of Delhi) and Anr.
(2017) 72

The data collected by the National Crime Records Bureau shows that there has been increase
in cases of sexual offences against children. This is corroborated by the ‘Study
on Child Abuse: India 2007’ conducted by the Ministry of Woman and Child Development.
Moreover, sexual offences against children are not adequately addressed by the existing laws.
A large number of such offences are neither specifically provided for nor are they adequately
penalized. The interests of the child, both as a victim as well as a witness, need to be
protected. It is felt that offences against children need to be defined explicitly and countered
through commensurate penalties as an effective deterrence.

72
AIR S.C. 1217 – 1219 of 2017

Page | 96
 The sensational case wherein a 38-year-old woman (suffering from cerebral palsy, a
major brain disorder) whose mental maturity was that of a girl aged three years was raped,
took a sudden twist with the death of the accused at a time when the Supreme Court, after
reserving verdict, was mulling a ruling on if a man who sexually abuses a mentally
challenged adult victim can be tried in a special child victim-friendly court under the
stringent provisions of Protection of Children from Sexual offences Act (POCSO 2012). In
ordinary course the case abates after the death of the accused. But on a plea by the victim’s
mother to look into the larger issue and lay down a ruling and also to issue directions
regarding relief and rehabilitation of the victim, a bench headed by Justice Dipak Mishra has
promised to consider the issues.

4. Chhatradhari vs. State of U.P. (2017) 73

Sri Pradeep Kumar Mishra learned amicus curiae for the accused-appellant, learned
Additional Government Advocate and perused the judgment as well as the record of the trial
Court.  In the present judgment, I do not propose to mention the name of the victim girl in
view of the provisions of Section 228A I.P.C. and in pursuance of the observations made by
the Hon'ble Supreme Court in para-4 in the case of State of Himachal Pradesh vs. Shree Kant
Shekari74 the prosecutrix’s (hereinafter referred to as 'victim'). The facts of the case is that the
the victim of the offence, allegedly committed by the appellant, was a child' within the
meaning of the expression defined in Section 2(1)(d) of Protection of Children from Sexual
Offences Act, 2012, hereinafter referred to as the "POCSO Act", she being below the age of
18 years at the relevant point of time. In view of the nature of offences involved, she is
entitled to the protection envisaged by law in Section 33(7) of POCSO Act. To put it simply,
the Additional Sessions Judge, Court No. 2 Kushinagar at Padrauna was duty bound to ensure
that her identity was "not disclosed at any time". However, this precaution was given a go-by
during the proceedings before the learned Additional Sessions Judge throughout the
judgement.  The present criminal appeal is directed against the judgment and order dated
15.11.2016 passed by the Additional Sessions Judge, Court No. 2, Kushi Nagar at Padrauna
in Session Trial No. 228 of 2013 (State vs. Chhatradhari), under Sections 376 I.P.C. and
Section 5(d)/6 Protection of Children From Sexual Offences Act, 2012, Police Station
Kotwali Hata, District Kushi Nagar. By the impugned judgment and order, learned trial judge

73
Allahabad H.C. 1597 of 2017
74
(AIR 2004 SC 4404)

Page | 97
has convicted the accused-appellant under Section 376 I.P.C. and sentenced him to undergo
rigorous imprisonment for 10 years along with a fine of Rs. 10,000/- and in default of
payment of fine, the appellant was further directed to undergo one year simple imprisonment.
Accused-appellant has also been convicted and sentenced to ten years RI and a fine of Rs.
10,000/- under Section 5(d)/6 of POCSO Act and in default of payment of fine, the appellant
was further directed to undergo one year simple imprisonment. 

5. Re: Exploi.Of Chiln.Inj Orph.In vs. Union of India and ors (2017) 75

This writ petition was taken up on the basis of an article published in the Hindi newspaper
“Hindustan” (Lucknow Edition) on 4th July, 2007. The article was written by Ms. Anjali
Sinha and the translated caption of the article is “Orphanage or Places for Child Abuse”. The
article was forwarded to this Court by one A.S. Choudhary along with a letter and that is the
genesis of this petition which was registered as a Public Interest Litigation (PIL) on 10th
September, 2007. Ms. Aparna Bhat was appointed as Amicus Curiae to assist this Court. At
the outset we must and do acknowledge the unstinting and excellent efforts put in by Ms.
Aparna Bhat over the last 10 years in rendering assistance in this matter.

Broadly, the article written by Ms. Anjali Sinha mentions that orphanages in
Mahabalipuram in Tamil Nadu, run by NGOs as well as government institutions were
reportedly involved in systematic sexual abuse of children. A sting operation indicated that
sexual services of children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were fixed over telephone
or in a meeting at the orphanage. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National Commission for
Women participated and it was acknowledged that government schools have become unsafe
for girl students due to sexual abuse. The incident of an eight year old girl who was harassed
by her Principal was mentioned and it was noted that the Principal was only transferred out
by way of punishment. Another incident was mentioned where the school teacher
misbehaved with students in the presence of other students in a closed room. The then
Ministry of Family and Child Welfare along with UNICEF brought out a report on the
condition of children in which it was reported that 53% of children suffered from sexual
abuse. Children were reported to be the subject of institutional abuse as well as by relatives.

75
WRIT PETITION (CRIMINAL) NO. 102 OF 2007

Page | 98
 On these broad facts Ms. Anjali Sinha suggested that the problem of sexual abuse of
children especially in government institutions has become a serious problem and requires
immediate redressal. She made some suggestions including a Counselling Cell in each school
where children are taught how to recognize abuse and providing a complaint mechanism
accessible to children in case of any such incident.

It was submitted that obviously the rights of children can be adequately secured only if
the monitoring and controlling provisions contained in statutes relating to children such as
The Commissions for Protection of Child Rights Act, 2005, The Right of Children to Free
and Compulsory Education Act, 2009, The Protection of Children from Sexual Offences Act,
2012 and The Juvenile Justice (Care and Protection of Children) Act, 2000 are fully
implemented. There was a lack of seriousness and more tragically a lack of empathy towards
the well being and welfare of children amongst some of the States and Union Territories and
complete apathy with respect to the disturbingly increasing instances of child sexual abuse,
often by someone in a position of authority and ineffective implementation of the laws passed
by Parliament virtually making parliamentary legislation irrelevant, we heard detailed
submissions of all the parties with the intention of passing appropriate directions so as to
ensure the meaningful implementation of the statutes already enacted by Parliament. It must
be appreciated that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a
medium for the State to honour the Directive Principles of State Policy particularly
under Article 39(f) of the Constitution by giving opportunities to children to develop in a
healthy manner and in conditions of freedom and dignity. Indeed, though the Directive
Principles of State Policy are fundamental to the governance of the country, they are not
enforceable.

6. Hans Raj @ Bhola vs. State (2017)76

This Criminal Appeal has been filed against the impugned judgment in Sessions Court
registered under Sections 376(2)(i)/511 of the Indian Penal Code, 1860 (in short 'IPC')
whereby the Trial Court convicted the appellant under Section 10 of the Protection of
Children from Sexual Offences Act, 2012 (in short 'POCSO Act'). The Trial Court sentenced
him to undergo rigorous imprisonment for five years and imposed a fine of Rs.5,000/. .
Learned counsel for the appellant had prayed that the appellant should be convicted under
Section 8 of the POCSO Act rather than Section 10 because the appellant is a first time
76
Delhi H.C. CRL.A 1061/2016

Page | 99
offender and has remained in jail. Section 7 and 8 of the POCSO Act deal with Sexual
Assault, they read as under : "Sexual Assault and punishment therefore.

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or
makes the child touch the vagina, penis, anus or breast of such person or any other person, or
does any other act with sexual intent which involves physical contact without penetration is
said to commit sexual assault. Whoever, commits sexual assault, shall be punished with
imprisonment of either description for a term which shall not be less than three years but
which may extend to five years, and shall also be liable to fine."

Section 9 and 10 of the POCSO Act which deal with Aggravated Sexual Assault and its
punishment, relevant portion of Section 9 and Section 10 read as under: "Aggravated sexual
assault and punishment therefore. Whoever commits sexual assault on a child below twelve
years; or is said to commit aggravated sexual assault. Whoever, commits aggravated sexual
assault shall be punished with imprisonment of either description for a term which shall not
be less than five years but which may extent to seven years, and shall also be liable to fine.

A plain reading of Sections 7 and 9 brings out the difference between 'sexual assault' and
'aggravated sexual assault'. It becomes clear after reading Section 9(m) that anyone who
commits 'sexual assault' on a 'child below the age of 12 years' is to be 'punished under Section
10' for "aggravated sexual assault". Admittedly, both the child victims "K" and "I" are 5 and
4 years of age respectively. Therefore, other factors which the learned counsel for the
appellant submitted are of no consequence as no criminal antecedents or exemplary
behaviour while in custody can entitle an appellant to punishment under a section which
defines a different crime than the one committed by the appellant. Therefore in light of the
facts and circumstances of the case, the judgment of the Trial Court sentencing the appellant
to rigorous imprisonment for a period of 5 years along with fine of Rs.5000/-for the offence
under Section 10 of the POCSO Act and the same is upheld.

7. Bijoy @ Guddu Das vs The State Of West Bengal (2017)77

The aforesaid scheme is, therefore, lays down the minimum limit for award of compensation
in cases of offences relating to rape, sexual assault (excluding rape), physical abuse of minor
etc. It also provides for a hike of 50% of the amount of compensation if the victim is below

77
Calcutta H.C. C.R.A. 663 of 2016

Page | 100
14 years of age. Although offences under POCSO are not specifically mentioned in the
Schedule, the cognate nature of offences of penetrative sexual assault or aggravated
penetrative sexual assault punishable under Sections 4 & 6 of POCSO when compared with
rape and that of sexual assault with sections 6 & 8 of POCSO, prompts me to hold that the
duty of the State to award compensation to victims under the aforesaid Fund would extend to
such offences also. The Special Court, therefore, while dealing with such offences may make
orders of interim or final compensation to victim from the Fund made available by the State.
It is further clarified that a conjoint reading of the Section 33(8) of the Act along with Rule 7
of the Rules made it amply clear that the power of the Special Court to award interim/final
compensation is not restricted to the terms of the Victim Compensation Fund promulgated by
the State but empowers the Court to award such reasonable and just amount as may be
determined by it in the facts of the case in the light of the parameters laid down in Rule 7(3)
of the aforesaid Rules to provide succour to a child victim. Upon orders being passed by the
Special Court relating to such compensation the State Government shall pay the
compensation so ordered by the Special Court within 30 days of the receipt of the order by
itself or through the State Legal Services Authority or the District Legal Services Authority in
whose hands the Victim Compensation Fund may be entrusted. It is also made clear that it
shall be open to the Special Court in appropriate cases to grant compensation over and above
the limit proposed under the scheme inasmuch as the scheme merely lays down the minimum
limits of such compensation and does not provide for a upper limit which is left open to the
judicial discretion of the Court to be determined in the light of the parameters laid down in
Rule 7(3) of the aforesaid Rules.

In view of the aforesaid discussion and in the factual backdrop of the case
particularly the nature and extent of injury and trauma caused to the victim by
the sexual assault perpetrated upon her and her age, that is, 11 years, I award compensation to
tune of Rs.75,000/- to the victim which shall be payable by the State through the State Legal
Services Authority to the parents of the victim, that is for the mental and physical trauma
suffered by her due to the crime committed on her within one month from date.

Page | 101
 CHAPTER-12

CONCLUSION AND SUGGESTIONS

This paper was intended to understand the magnitude and issues related to child sexual abuse.
The prevalence of CSA was found to be high in India as well as throughout the world. CSA is
an extensive problem and even the lowest prevalence includes a huge number of victims.
Three main issues have been identified that makes it difficult to estimate exactly how many
children are victims of CSA.

Firstly, the way abuse is defined plays an important role. Secondly, the cases reported
by the official organizations usually underrate the number of victims as many cases never get
reported to them. Thirdly, different studies report the prevalence for different time periods,

Page | 102
for e.g., few give data on number of children abused in one year, others give numbers based
on children ever abused in their lifetime, and few others involve adults who recall and report
their childhood abuses. The prevalence of CSA is alarming; hence, stringent measures should
be taken for its prevention and control.

1-Preventing Child Sexual Abuse through Community Capacity Building

According to Korbin (1994) and Korbin and Coulton (1996), the capacity of communities to
prevent violence, including various forms of child maltreatment, is contingent upon the
protective factors of community social control and collective efficacy. However, these
investigators argue that strong interpersonal ties are not the only contributor to collective
efficacy and violence prevention. Ties outside the community, including organizational ties,
are also critical. Violence and child abuse prevention programs should be structured in ways
that contribute to the community's own capacity to prevent these social ills.

In addition, widespread public education programs concerned with various forms of

child sexual abuse and exploitation need to be at the forefront of both governmental and
NGO efforts. Community awareness must also be generated at the community level, with
local citizens, families and schools taking ownership in playing a major role in education and
prevention efforts.

Baradha (2007: 210) discusses some steps toward lowering and preventing sexual abuse of
any kind in India, including the abuse of children. Some methods that might help lower the
occurrence of sexual abuse include:

 Moral and sex education should be made compulsory in schools and colleges.
 Pornographic literature and blue films should be banned.
 Sexual predators should be treated using psychological or medical techniques.
 Separate tribunals/courts should be constituted specifically for cases of sexual abuse.
Penalties should be severe to discourage those who might be contemplating such an act.
 Awareness of sexual abuse could be created through mass media.
 School officials could learn about signs and symptoms of childhood sexual abuse for
identification purposes. Further, specific action in reporting such cases should be
outlined.

Page | 103
 Finally, it is also important to consider the importance of socio-cultural factors in the
development of successful neighbourhood-based child protection strategies. Korbin (1994)
notes that the challenge of incorporating culture into child protection involves both the
accommodation of cultural diversity while assuring equitable standards of care and protection
for all children.
Neighbourhood-based strategies to reduce and prevent child maltreatment will be
enhanced by research that provides a better understanding of own neighbourhood conditions
act as stressors or supports for families at risk of child maltreatment. There is also some
empirical evidence that residents in neighbourhoods and communities are optimistic that they
can prevent child maltreatment more effectively than local, state, and national
governments .Furthermore, there is often less certainty about what various local and
government agencies can or should do. According to these researchers, while reporting of
child maltreatment is an important responsibility that can prevent serious harm and even
death, neighbourhood residents in their study believed that this responsibility included the
potential of retaliation from neighbourhood adults and children.
Although citizens should never take the law into their own hands, fear of legal
repercussions, and family and social incrimination or embarrassment, may play an important
role in reducing and preventing child sexual abuse. Since economic and social conditions are
inextricably bound together, child maltreatment prevention programs must be embedded
within comprehensive efforts to strengthen families and communities. In addition, the
presence of social networks and supports in the lives of children and families is a crucial
factor in child well-being and the prevention of all forms of child abuse. Healthy aspects of
social control, social cohesion, and social resources and social supports are central to capacity
building and collective efficacy all of which have a positive impact on the wellbeing of
children and youth. More attention has been focused on child sexual abuse during the past
two decades than on any other form of child maltreatment. It should not be surprising that its
decline would come before and be greater than that of other forms of maltreatment.
Prevention and intervention efforts have included school-based prevention education,
treatment programs for juvenile and adult offenders, and greatly enhanced resources for
criminal justice investigation and prosecution. It is reasonable to think that, given the scale of
these efforts, they have had some success in preventing or intervening in sexual abuse.

2-Individual counselling in cases of sexual abuse

Page | 104
 Long term goals -

Stopping every sexual victimization of children, understanding, controlling emotions and

behaviour as consequences of resolving the trauma related to sexual abuse, resulting in
abilities to establish and maintain close interpersonal relationships. Establishing appropriate
limits and general rules for the family to minimize the possibility of sexual abuse in the
future. Obtaining healing within the family system, proven by the verbal expression of
forgiveness, the desire of liberation and to overcome the situation, eliminating denial from
the girl and the family, placing the responsibility for the abuse to the aggressor and providing
support for the victim. Building self-esteem and self-confidence, by showing an increased
number of positive statements about herself and a wider participation in extracurricular
activities.

 Short term goals -

Full descriptions of the abuse, identifying the nature, frequency and duration of the abuse;
identifying and expressing feelings related to the abuse; renouncing of secrecy and informing
significant family members about the abuse; verbal demonstration of knowledge regarding
the sexual abuse and its effects; verbalization of how the sexual abuse has influenced the life
of the victim; decrease (intensity) of expressed feelings of shame or guilt and strengthening
the belief in her innocence relate to the sexual abuse; stabilized mood and emotional intensity
reduction of the sexual abuse. Greater support and acceptance from family, improving
socialization and increased number of friendly relations; the establishment and acceptance of
appropriate limits on privacy within the family.

 Specific interventions on sexual abuse (specific recommendations for the

case under study) -

 The sustained growth in the level of confidence of the child in individual sessions by
using eye contact, active listening, and unconditional positive glances, empathetic
acceptance, aiming to boost her ability to identify and verbalize her feelings.
 Encouraging and supporting the child to express and clarify feelings associated with
the sexual abuse, the use of individual therapeutic sessions to give the child the
opportunity to express herself and work with her feelings;
 Using dolls with anatomical details to allow your child to verbalize and show how
she was abused;

Page | 105
  Advising the family members to establish limits on privacy within the family;
 Identifying all ways in which significant family members will support the child;
 Guidance towards a group made up of children with similar experiences to get
support for internalizing the belief that she is not the only one who went through
what happened to her;
 Psychological evaluation of the child and / or other family members in order to detect
severe psychological disorders;

 SUGGESTIONS -

From my suggestion, we teach our young children all sorts of ways to keep themselves safe.
We teach them to watch the hot stove, we teach them to look both ways before they cross the
street. But, more often than not, body safety is not taught until much older -until sometimes,
it is too late. Sexual abuse can happen to children of any race, socioeconomic group, religion
or culture. There is no foolproof way to protect children from sexual abuse, but there are
steps we can take to reduce this risk. If something happens to our child, remember that the
perpetrator is to blame not you and especially not the child. Below we will find some
precautions you to help protect the children in their life. There are some ways to protect
children from sexual abuse:-

 Be involved in the child’s life

Being actively involved in a child’s life can make warning signs of child sexual abuse more
obvious and help the child feel more comfortable coming to you if something isn’t right. If
you see or hear something that causes concern, we can take action to protect our child.

 Show interest in their day-to-day lives - Ask them what they did during the day and
who they did it with. Who did they sit with at lunchtime? What games did they play
after school? Did they enjoy themselves?
 Get to know the people in your child’s life - Know who your child is spending time
with, including other children and adults. Ask your child about the kids they go to
school with, the parents of their friends, and other people they may encounter, such as
teammates or coaches. Talk about these people openly and ask questions so that our
child can feel comfortable doing the same.

Page | 106
  Choose caregivers carefully -Whether it’s a babysitter, a new school, or an
afterschool activity, be diligent about screening caregivers for your child.
 Talk about the media - Incidents of sexual violence are frequently covered by
the news and portrayed in television shows. Ask our child questions about this
coverage to start a conversation. Questions like, “Have you ever heard of this
happening before?” or “What would you do if you were in this situation?” can
signal to our child that these are important issues that they can talk about with
you. Learn more about talking to our kids about sexual assault.
 Know the warning signs – Become familiar with the warning signs of child
sexual abuse, and notice any changes with our child, no matter how small.
Whether it’s happening to our child or a child we know, we have the potential to
make a big difference in that person’s life by stepping in.

 Encourage children to speak up -

When someone knows that their voice will be heard and taken seriously, it gives them the
courage to speak up when something isn’t right. We can start having these conversations with
our children as soon as they begin using words to talk about feelings or emotions. Don’t
worry if we haven’t started conversations around these topics with our child - it is never
too late.

 Teach our children about boundaries - Let our child know that no one has the
right to touch them or make them feel uncomfortable — this includes hugs from
grandparents or even tickling from mom or dad. It is important to let our child
know that their body is their own. Just as importantly, remind our child that they
do not have the right to touch someone else if that person does not want to be
touched.
 Teach our child how to talk about their bodies - From an early age, teach our
child the names of their body parts. Teaching a child these words gives them the
ability to come to you when something is wrong. Learn more about talking to
children about sexual assault.
 Be available - Set time aside to spend with your child where they have your
undivided attention. Let your child know that they can come to you if they have
questions or if someone is talking to them in a way that makes them feel

Page | 107
 uncomfortable. If they do come to you with questions or concerns, follow through
on your word and make the time to talk.
 Let them know they won’t get in trouble - Many perpetrators use secret-
keeping or threats as a way of keeping children quiet about abuse. Remind our
child frequently that they will not get in trouble for talking to you, no matter what
they need to say. When they do come to you, follow through on this promise and
avoid punishing them for speaking up.
 Give them the chance to raise new topics - Sometimes asking direct questions
like, “Did you have fun?” and “Was it a good time?” won’t give you the answers
you need. Give our child a chance to bring up their own concerns or ideas by
asking open-ended questions like “Is there anything else you wanted to talk
about?”

BIBLIOGRAPHY

Primary Sources-
1. Prof. N.V. Paranjape, Criminology & Penology with Victimology, Central Law
Agency, Allahabad, 16th Edition, Reprint 2015
2. Jain, M.P., “Outlines of Indian Legal History" (3rd. Ed).
3. Child Labour (Prohibition and Regulation) Act 1986
4. Child Marriage Restraint Act 1929

Page | 108
 5. Code of Civil Procedure 1908
6. Code of Criminal Procedure 1973
7. Constitution of India 1950
8. Commissions for Protection of Child Rights Act 2005
9. Commission of Inquiry Act 1952
10. Criminal Law (Amendment) Act 2013
11. Dowry Prohibition Act 1961
12. Hindu Minority and Guardianship Act 1956
13. Indian Majority Act 1875
14. Indian Penal Code 1860
15. Information Technology Act 2000
16. Prohibition of Child Marriage Act 2006
17. Protection of Children against Sexual Offences Act 2012
18. Protection of Women against Domestic Violence Act 2005
19. Protection of Women from Domestic Violence Rules 2006
20. Juvenile Justice (Care and Protection of Children) Act, 2015

Articles-

1. Adenwalla, M. (2000). Child Sexual Abuse and the Law. India Centre for Human
Rights and the Law, Mumbai.
2. Campbell, R. & Raja, S. (1999). Secondary Victimisation of Rape Victims: Insights
from Mental Health Professionals Who treat Survivors of Violence.
3. Carson, D., Foster, J., & Choudhary, A. (2014). Sexual Abuse of Children and Youth
in India An Anthropological Perspective. The Oriental Anthropologist

Websites Referred

1. Townsend, C., & Rheingold, A.A., (2013). Estimating a child sexual abuse prevalence
rate for practitioners: studies. Charleston, S.C., Darkness to Light. Retrieved from
www.D2L.org.

Page | 109
2. International labour organization, international Programme on the elimination of
Child labour, ‘Facts on Commercial Sexual exploitation of Children’, March 2003,
available at <www.ilo.org/childlabour>.
3. http://unicef.in/Whatwedo/20/Child-Protection-Systems
4. https://blog.ipleaders.in/laws-related-child-sexual-abuse-india/
5. https://www.mapsofindia.com/my-india/government/the-protection-of-children-from-
sexual-offences-act-2012-pocso
6. https://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-
2012/articleshow/19718160.cms
7. http://pib.nic.in/newsite/PrintRelease.aspx?relid=113750
8. http://www.thehindu.com/opinion/op-ed/strong-provisions-weak-
implementation/article5470778.ece
9. http://arpan.org.in/protection-of-children-from-sexual-offences-act-pocso/
10. https://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-
2012/articleshow/19718160.cms
11. http://www.thehindu.com/opinion/op-ed/strong-provisions-weak-
implementation/article5470778.ece
12. https://www.rainn.org/articles/how-can-i-protect-my-child-sexual-assault
13. https://www.nsvrc.org/projects/child-sexual-assault-prevention/preventing-child-
sexual-abuse-resources
14. https://childmind.org/article/10-ways-to-teach-your-child-the-skills-to-prevent-sexual-
abuse/

Page | 110