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An Analysis of the Law for the Protection of Juveniles from Sexual Offences

By Nilabha Sharma July 27, 2016

  By Nilabha Sharma Advocate, New Delhi

Movies whether good or bad always leave an impression on the viewer. The scene from the film “Highway” which portrayed the actress’s outburst about being sexually abused as a child by her uncle kept haunting me for days. I tried imagining the trauma and the misery of an innocent child subjected to abuse. Sexual abuse of any kind on any person is a monstrous act in itself; more so if a child is subjected to it; who often cannot even comprehend what is happening to him or her.

The problem of child sexual abuse in India and USA at a glance:

The problem of sexual abuse of children is prevalent in the world at large. Even in a country like USA, a study by David Finkelhor, Director of the Crimes Against Children Research Center indicates that 1 in every 5 girls and 1 in every 20 boys is a victim of child sexual abuse.Over the course of their lifetime, almost 28% of U.S. youth aged between 14 to 17 years had been sexually victimized.[i] In India the statistics are indicative of a catastrophe under which the whole society is reeling. A survey undertaken by the Human Rights Watch, an International organisation in 2013 reflected startling numbers - 53% of the children interviewed had suffered one or the other kind of sexual abuse of which 72% of the cases had never been reported to anyone. Only 3% of these cases had been reported to the police.[ii]

Examples are many like Ruchika Girhotra, a 14 year old girl who was sexually abused by a police officer. The police officer was never punished but her family’s harassment and the fact that they were ostracised by the police; drove her to suicide. Other cases include the infamous Nithari killings and the case of Apna Ghar in Haryana, a residential care institution for orphans; where the residents were incessantly raped not only by the authorities, but the children were also coerced into having sex with strangers. The most recent example is the gang-rape and the brutal murder of two teenage dalit girls in Badaun district, UP. Three of the seven culprits involved are still absconding. These are only four of the several hundreds of cases that happen every year, of which only few are reported and the people who report them are subjected to the abysmal behaviour of the authorities that discourage others to report such cases.

Scholars often treat this as a sociological menace, which is true. But it is also a legal failure. Sexual offences against children have been treated under the IPC (Sections like 375, 376 etc.); however no special reference is given to children as such. Under the Juvenile Justice (Care and Protection of Children) Act, 2000, primarily Section 23 - a penal provision deals with cruelty towards children.

The Protection of Children from Sexual Offences Act, 2012 (POCSO):

In 2012, the Indian Parliament passed the Protection of Children from Sexual Offences Act. The Act was drafted as early as 2002 but passed as late as in 2012. The implementation of the Act is still to be seen. The Act on paper seems infallible. It is comprehensive and covers almost all kinds of sexual abuse, be it assault, harassment even pornography. It provides for establishment of special courts and in camera proceedings so that the victim does not feel intimidated. Section 19 elaborately provides for reporting of offences. Section 21 provides for punishment if, after possessing the knowledge of such an abuse, a person doesn’t report it. Though the punishment is not very stringent, however it might be effective for the time being. Special provisions have been provided for recording of statements, etc. which has to be done at home or any other place where the child feels comfortable. The identity of a child is to be protected at all costs, though no penalty is provided for the authorities if they leak out the name of the victim.

The Act establishes the National Commission for Protection of Child Rights as the monitoring body for the proper implementation of the Act. The loopholes that exist are that the Act does not at any instance provide for a child with special needs or one suffering from a physical or mental disability. Moreover the provisions that would ensure that the Act is properly implemented are almost negligible. The penalties provided are severe but changes have to be made in the manner of obtaining of evidences. What has to be made certain is that the victim does not suffer further and the belief of the people in the justice delivery mechanism is strengthened.

Child sexual abuse is shrouded in secrecy and more often than not it is kept buried due to the social stigma attached to it. The victim suffers in silence. The devastating effect it has on a child is incomprehensible. It shatters the soul of an innocent being. The psychological effects are numerous; the victim keeps on reliving that trauma for almost his or her entire life- dragging the burden alone, never sharing it with anyone. The most surprising thing is that the perpetrators of this crime are mostly those people on whom the child has utmost faith like a relative, a close domestic help etc.

Epilogue:

Apart from the implementation of the Act, my personal opinion is that the best way to combat child sexual abuse is through awareness. As soon as the society embraces this problem, understands it, stops ostracising people who talk about it or who come forward with it; the menace of child sexual abuse would be dealt with to a great extent. The further victimisation of the child has to be stopped. The social stigma attached to it has to be done away with. Instead of penalising the perpetrator, the focus should be on how to prevent sexual abuse of children; how to nurture them in an environment where there is no such fear. As a society we have to ensure that justice is done to these innocent victims and not only do we need to ensure that this monstrosity is stopped, but also that other innocent children are not persecuted. If we cannot do this, it shall mark the failure not only of society, but humanity as a whole.

[i] Data as retrieved from http://www.victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics

[ii]Human Rights Watch Report “Breaking the Silence Child Sexual Abuse in India”, 2013, retrieved from www.hrw.org/sites/default/files/reports/india0113ForUpload.pdf.

TAG: Protection of Juveniles from Sexual Offences , Protection of Children from Sexual Offences Act , 2012 , POCSO , child sexual abuse , Juvenile Justice (Care and Protection of Children) Act , Section 23


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