May 12, 2010

Times of India

SILENT VICTIMS need legal voice

Though A New Bill Targets All Crimes Against Children, Experts Say A Law Dedicated Specifically To Child Sexual Abuse Is The Need Of The Hour
Disturbing reports of child sexual abuse (CSA) have become alarmingly frequent.

According to home ministry data, Maharashtra was third in a nationwide list of sexual crimes against children in 2008. The state recorded 690 cases of child rape. In contrast, only 37 individuals were convicted.

A major reason lawmakers, academicians and activists cited for the low conviction rate is the absence of a law specifically dedicated to reining in child sexual abuse. Currently, a draft of the Prevention of Offences Against the Child Bill 2009, drawn up by the National Commission for Protection of Child Rights, is being debated. The bill targets all forms of violations against children, like trafficking, physical violence, child labour, use of children in armed conflict and sexual abuse. But observers said that while a comprehensive law is needed in the long term, a legislation that targets CSA in particular should be an urgent and immediate priority.

Asha Bajpai, professor at the Tata Institute of Social Sciences’ Centre for Socio Legal Studies and Human Rights, was one of the academicians invited to review the bill in January. “We found that this was a bill for all offences together—child labour, corporal punishment, sexual abuse, physical abuse,’’ Bajpai said. “One suggestion we can give is that there should be a specific law for child sexual abuse. All the child laws need to be looked at, but that is a long-term thing. The immediate need is for a law against CSA.’’


Bajpai pointed out that sex offenders often get away
with light punishments or acquittals by exploiting loopholes in existing laws. These could be plugged with a specific law.

At present, three provisions of the Indian Penal Code are usually applied to CSA cases.
• Section 354 criminalises outraging the modesty of a woman and gives a maximum sentence of two years;
• Section 375 punishes rape and carries a minimum prison term of ten years;
• and Section 377 criminalises sodomy and has a minimum penalty of ten years.

Much of the sexual abuse against children does not fit into Section 375, while Section 354 is too mild, said Bajpai. And none of the laws, except for 377, can be used in cases where boys are abused.

Lawyer Yug Chaudhry said offenders are acquitted or get minor penalties every day as many offences are simply not covered by the statutes. “The law trivialises offences as the title of the IPC section may not explain the actual act,’’ he said. For example, in the case of minor boys, forcible oral sex is tried under Section 377. “The courts have been forced to do this,’’ Chaudhry said.

In the new bill, the definition of child includes individuals who are up to 18 years and the definition of sexual assault has also been broadened. Whereas Section 375 limits rape to penetration, the bill introduces sexual assault, which includes manipulation of a child’s body, fellatio, cunnilingus and analingus.

The bill also talks of unlawful sexual contact, such as fondling and kissing a child on the lips, and non-contact offences, like exposing genitalia, masturbating before a child, showing pornography, exposing the child to sexual contact between two people and using sexually explicit language. However Bajpai believes that the bill should be more nuanced and have harsher punishments. The definition of pornography needs to be also included, she said. “Incest needs to be specifically int ro d u c e d . There’s also no provision for violating a child’s privacy. Suppose somebody watches a child undress?’’ she asked.


Apart from the laws themselves, Chaudhry said there’s a need to change the way in which children are exposed to trials. The manner in which a trial is usually conducted often doesn’t inspire victims to volunteer evidence, he said. One suggestion Bajpai made recently in Chennai, where the new bill was debated, involved introducing a child-witness protection programme, like there are in the UK and US. They offer legal assistance to the child, explain intimidating court proceedings in a child-friendly manner and also offer security.

Lawyer Flavia Agnes agreed. “How do you put a child in a witness box? What is the criteria of crossexamination?’’ she asked.


While a law could help secure more convictions, it’s debatable how far it would help tackle an essentially social problem. After all, countries with the most evolved laws have high CSA rates.

Pooja Taparia, founder of the NGO Arpan, said we must train children to spot CSA. “If you make children aware, they become their biggest protectors,’’ she said. “Only putting offenders behind bars is not a long-term solution.’’
Arpan has been running an awareness programme in two schools in Borivili and Malad. Students are taught to distinguish between appropriate and inappropriate behaviour, to report unpleasant behaviour and so on. The kids are also taught about the UN Convention on the Rights of the Child.
Getting kids to report abuse is a major challenge. That’s a reason why the number of actual cases is higher than official figures. Often family members are unsympathetic, embarrassed or disbelieve the kids. As a result, kids suffer silently for years. Bajpai said that one way to get adults to report CSA is to make it legally mandatory.
In the 2009-10 academic year, Arpan found that of 394 schoolchildren, 12% had experienced inappropriate behaviour or touching and 2% had been sexually abused. Taparia said that often the perpetrator is known to the child. She also noticed a rising number of cases involving boys.

Harish Iyer, a counsellor and blogger who was sexually abused as a child, said, “The bill is another thing. We need to start with awareness. Sex education is not pornography. How will a child tell his parents he has been touched inappropriately if that environment to talk doesn’t exist? We need to break the silence.’’


Laws in other countries:

United States |

The federal Child Abuse Prevention and Treatment Act prescribes minimum rules that states have to follow in their respective laws. The statutes cover a range of offences, from rape to sexual exploitation, which involves permitting child abuse. Texas has some of the toughest penalties, including lifers for some repeat offenders and voluntary castration

United Kingdom

The Sexual Offences Act punishes the rape of minors, which attracts a lifer, and other forms of exploitation. Contact is not necessary. A person can face ten years for performing a sexual act before a child

Thailand |

The country has tough laws as sex trafficking is a major problem. Individuals convicted of rape or molestation of a child under 15 years face seven to 20 years in jail. Anyone who has sex with a child aged 15 to 18 faces a fine and one to three years. Traffickers face up to 20 years

Recent incidents (2010)

April 28:
A minor escapes after she is kidnapped and molested on the terrace of the railway police quarters in Kurla

March 8:
A nine-year-old girl is raped and murdered and her body is dumped on the terrace of the police quarters in the same suburb

February 5:
The body of a fiveyear-old girl is found in a gunny bag dumped on the staircase of an under construction SRA building in Kurla

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