Brief Legal Overview on CSA By Supriya
Whkat is child sexual abuse?
World Health Organization (WHO) defines child sexual abuse as, ‘inappropriate sexual behavior with a child’ and ‘involving a child in sexually activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.’It includes fondling a child’s genitals, making the child fondle the adult’s genitals, intercourse, incest, rape, sodomy, exhibitionism, sexual exploitation, inducement or coercion of the child in unlawful activity, exploitative use of the child in prostitution or other sexual practices, exploitative use of the child in pornographic performances and materials. These acts are usually committed by a person responsible for the care of a child or related to the child – for example, a parent, a baby-sitter, a grandparent, a daycare provider, a servant, a family friend or an older cousin.
The legal age at which a child attains majority is 18 and is considered old enough to consent to sexual intercourse (though under the Immoral Traffic (Prevention) Act, 1986, child means a person who has not completed the age of 16).
India still does not have a law on child sexual abuse (other than the Goa Children’s Act, which is a state specific legislation). CSA might be prosecuted as:
• Outraging the modesty of a woman
• Unnatural offences
Existing legal framework
The Indian Penal Code, 1860, (“IPC”) does not recognise child abuse, neither does it offer any legal remedy and punishment for “child abuse”. It broadly lays out punishment for offences related to rape or sodomy or “unnatural sex”. The law relating to terms “sodomy” or “rape” are too specific and do not apply to acts like fondling, kissing, filming children for pornographic purposes, etc.
What is rape according to law: According to Section 375 of IPC, intercourse constitutes rape when:
- the act is conducted against the will of the victim
- without consent or if consent is obtained by fear or fraud
- consent is given by reason of unsoundness of mind or under intoxication or under the influence of any drugs and the victim is unable to comprehend the nature and consequences of the act
- with or without her consent, when the victim is under the age of 16
- penetration is sufficient to constitute intercourse necessary to the offence of rape. In laymen terms rape would basically mean intercourse with
Consent by a child under the age of 12 is not good in law: U/s 90 of the IPC, any consent given by a child under the age of 12 years is not considered as consent.Thus, even if a child under the age of 12 is coerced or influenced in any other manner to consent to any act which may be considered as CSA, such consent is not good in law. This is important because if the victim is a major, then if it can be proved that the act was consensual, it would not be considered as rape.
Penalty for rape: U/s 375 of IPC, the legal age of consent is 16. A male having intercourse with a female under the age of 18, regardless of whether the act is done with or without her consent would be considered as rape (this definition is wide enough to include consensual intercourse between teenagers as well). U/s 376 of the IPC, the penalty for a rapist of a female child under 12 is rigourous imprisonment for a minimum of ten years and a maximum of life sentence; when the victim is over 12, the penalty is a minimum of seven years, and a maximum of life sentence. It is a non-bailable offence as classified under the Code, which means that the accused is not entitled to bail as a matter of right. The granting of bail is upto the Court. However, intercourse bya man with his own wife, who is not less than 15 years of age shall not be considered rape.
Punishment for abuse by manager/ superintendent of jail or remand home: U/s 376C of the IPC, if a superintendent or manager of a jail, remand home or other place of custody established by or under law or of a woman or child’s institution takes advantage of his official position and induces or seduces a female inmate of such jail, remand home or institution to have intercourse with him, and such intercourse does not amount to rape, he shall be punished with imprisonment (rigorous or simple)of five years and fine.
Child Pornography: As per the Information Technology Act, 2000, Chapter XI Para 67, online pornography is a punishable offence. Section 293 of the IPC clearly states that whoever sells, hires, circulates or exhibits any obscene material (book, pamphlet, paper, writing, drawing, painting, representation etc.) to any person under the age of 20 years shall be punished with imprisonment for a term upto 3 years and fine of Rs. 2000/-. In the case of a second or subsequent offence, it is punishable with a fine of upto 7 years and fine of Rs. 5000/-.
Goa Children’s Act, 2005: In 2003, the State Government of Goa legislated and passed the only state level child welfare act in existence. This Act was brought about to with the objective to protect, promote and preserve the best interests of children in Goa and create a society that is proud to be child friendly. A child under this Act has been defined u/s 2(d) as a person who has not completed 18 years of age. The salient provisions of this Act are mainly:
- “Child abuse”has been defined to mean
- maltreatment, whether habitual or not, of the child which includes psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment or any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
- unreasonable deprivation of his basic needs for survival such as food and shelter;
- failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.
- “Sexual offences”have been defined to mean and include sexual assault, grave sexual assault and incest
- Sexual assault is punishable with imprisonment of upto 3 years and fine of Rs. 1 lac. Grave sexual assault is punishable with imprisonment of minimum 7 years and upto 10 years and fine of Rs. 2 lacs
- Testimony of a child victim shall be treated at par with that of a child rape victim u/s 375 of the Indian Penal Code.
- The onus for examination of a child to ascertain whether it is sexual assault or grave sexual assault lies with the investigating authority in consultation with a professional social worker/ counsellor.
- It has also been made mandatory that an adult who keeps a child not related by blood with him/ her, is required to report the same with the police.
- The owner/ manager of hotels and such establishments have also been made liable under this Act to ensure that children are safe and providing a safe environment to children in their premises.
- In all matters, the consent or willingness of the child to be a party to sexual abuse will not be taken into consideration.
- The State shall provide for the setting up of one or more Victim Assistance Units which shall facilitate the child to deal with the trauma of abuse and assist the child in processes involved with appearing as a witness before any Court or authority handling a case of abuse of a child.
- The State shall carry out child sensitisation for police officers at all levels and orient them with child laws.
- The Act has constituted and empowered semi-governmental bodies to look into the Act. Government personnel have been empowered to take action against an offender. Mamlatdars have been appointed as special officers to look into the violation and enforcement of the Act. A Children’s Court has been established under this Act.
Though an admirable piece of legislation, unfortunately this Act doesn’t have much teeth since there are some provisions which haven’t yet been enforced. A writ petition is also pending before the Bombay High Court (Panaji Bench) challenging various provisions of this Act as unconstitutional.
A landmark judgment is that of Sakshi vs. Union of India &Ors. (2004) where Sakshi, a NGO filed a PIL before the Supreme Court after the Delhi High Court declared that the case of an 8 year old child, abused by her father, could not be considered either rape or an unnatural offence.The existing trend of the authorities till then was to treat sexual violence, other than penile/vaginal penetration, as lesser offences and not as a sexual offence under Section 375/376 IPC. It was stated that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, was not considered as rape and was treated as an offences u/s 354 of the IPC, i.e, outraging the modesty of a women or u/s 377 IPC, i.e., unnatural offenses. It was also argued that most victims failed to report the incidents because of fear of society, embarrassment at being asked such intimate questions in public during cross examination and many a time, fear of facing the abuser. The petition was disposed of with the following directions:
- Trial shall be conducted in-camera, trial maybe conducted by lady judges and the anonymity of the victim shall be maintained as far as possible [this was the directions given by the Apex Court in State of Punjab vs. Gurmit Singh (1996)]. This shall be adopted in inquiry or trial of offences u/s 354 (outraging of woman’s modesty) and section 377 (unnatural sexual offence).
- In holding trial of child sex abuse or rape:
- a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
- the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
- the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
Loopholes in the existing law:
The existing law is an old legislation where the existing laws are adopted to include CSA. The existing law does not protect male children who are victims. Section 354 (outraging the modesty of a woman) is a compoundable offence, i.e, it can be settled by the Parties without the permission of the Court. Also the term “unnatural offences” u/s 377 has not been defined. There is no penalty for repeat offenders.
This existing law is inadequate and there is the need for a child – specific legislation which shall establish proper guidelines to tackle this issue, provide mandatory counselling to the child and the family, protect the child from the media and society etc.
This post is written by Supriya , passed out from Symbiosis Society’s Law College in 2006 and practised with a law firm for 4 years in the Bombay High Court and Delhi High Court. She is currently heading legal with a real estate company. Though she hasn’t handled any CSA matters so far, she got involved when approached to be a part of this Campaign, and has studied extensively about it.”
Cross posted here