03 / 2011
53% of children in India face some form of child sexual abuse. To what extent will the new Protection of Children from Sexual Offences Bill help? And is it time for campaigners to replace ‘vulnerability’ with ‘oppression’ and ‘protection’ with ‘empowerment’ in the battle against CSA?
The recent sentencing of Alan Waters and Duncan Grant to six years’ imprisonment for the sexual abuse of young boys who were in their care at the Anchorage shelter in South Mumbai has once again drawn our attention to the need for stringent legislation and action against those who exploit children for sexual purposes.
Earlier this year, the central government did draft such a legislation: the Protection of Children Against Sexual Offences Bill was sent to the various states for consideration. One version of the Bill became available to the press through sources at the Ministry of Women and Child Development. One clause in particular (regarding the decriminalising of non-penetrative sexual exploration between children older than 12) was much discussed in various public and media forums. Prior to this, the sexual abuse of children became a matter of public interest following publication of the report by the MWCD entitled ‘Study on Child Abuse India 2007’ which revealed that more than 53% of children in India have probably been sexually abused and many have never shared the fact of this abuse with anyone.
Periodically therefore, when there is a report that generates public interest or a high-profile case of paedophilia, the sexual abuse of children becomes a matter of public concern and often of anger and indignation. As Chris Jenks points out in his essay published in 1996, Suffer Little Children: A Sociological Analysis of Changing Attitudes to Child Abuse in the Late-Twentieth Century’ child abuse is one of those topics/issues in response to which “normative assumptions inherent in the notions of ‘decency’ and ‘right-mindedness’ are automatically invoked”.
The present article focuses on the issue of child sexual abuse in India as a sociological one. There are several arguments made in the field of childhood studies on the linkages between the notions of Child and Nation and the overloading of nostalgia and romance that surrounds the trope of Childhood. In that discourse the public furore and the similarity of response among various stakeholders is read as an automatic defence of discourses concerning “stability, integration and the social bond”. In itself, this approach contains much to learn from and take cognisance of for all those who engage in various ways with this issue. However, this makes for a separate argument and article altogether. For the moment, it is necessary to understand the extent of the problem of CSA in India and the ways in which child protection mechanisms of the state and civil society engage with it.
What is child sexual abuse?
According to the World Health Organisation, child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or that violates the laws or social taboos of society.
It is important at this stage, to separate the broader issue of child abuse from the specific one of child sexual abuse. Child abuse may be emotional, mental, physical or sexual and encompasses a much wider gamut of actions. Child sexual abuse is that which targets sexuality and/or sexual organs, involves sexual gestures, words, pictures, actions.
While releasing the report on child abuse in India, Women and Child Development Minister Renuka Chowdhury said, “Child abuse is shrouded in secrecy and there is a conspiracy of silence around the entire subject.” This is only one of the many problems faced by those working in social development, legislation and justice, both in government and non-government bodies. The above-mentioned report for instance says, “One of the major problems in understanding the scope of the subject of ‘child abuse’ is that it is extremely difficult to get responses from children on such a sensitive subject because of their inability to fully understand the different dimensions of child abuse and to talk about their experiences. It is therefore difficult to gather data on abused children.” Child rights activists argue that the problem may not be the child’s inability to speak about sensitive subjects, as much as the lack of skills on the part of the questioners to create the environment and the trust required to enable the child to share his/her experiences.
Child sexual abuse in India
Currently, the Indian Constitution recognises various crimes against children that are linked to their sexual abuse – The Immoral Traffic (Prevention) Act that protects children below the age of 16 from being used for the purposes of commercial sex. The Juvenile Justice Act Section 26 (Exploitation of Juvenile or Child Employee) provides for punishment if a person procures a juvenile for hazardous employment. The Prohibition of Child Marriage Act also makes punishable the practice of marrying girls under the age of 18 and boys under the age of 21. In addition to these legislations there is also a commission for the protection of the rights of children which inquires into various violations of child rights and recommends initiation of proceedings as seen necessary.
It is important to understand that sexual offences against children can and are committed in all the above situations – marriage, trafficking, employment – and in many more. It is equally important to understand the kinds of social and legislative circumstances that allow for and may even be a reason for sexual abuse. Interactions with people in slums in urban centres for instance, reveals that many get their children married young to protect them from sexual abuse. Once a girl attains puberty she begins to be seen as sexually available. For some parents marriage is the only way to ensure that the girl is ‘unavailable’ to others for abuse.
Among the Naths of Bihar, prostitution is a way of life. When a family doesn’t have a daughter, girls are purchased from other parts of the state and pushed into sex work so that the family can live off their earnings. Children who work as domestic labour, or help in hotels and restaurants, are susceptible to sexual abuse at the hands of employers and customers. In addition to these situations, children across caste and class lines are vulnerable within their families, to abuse from relatives and friends of the family.
A number of children go missing every year – some are sold by their families, some are kidnapped, others lured by the promise of a better life both for themselves and their kin. According to CRY (Child Rights and You)
8,945 children go missing in India every year
500,000 children are estimated to be forced into the sex trade every year
Approximately 2 million child commercial sex workers are between the ages of 5 and 15 years
Approximately 3.3 million child commercial sex workers are between 15 and 18 years
Children form 40% of the total population of commercial sex workers
80% of these children are found in the five metros – Delhi, Mumbai, Kolkata, Chennai and Bangalore
71% of them are illiterate.
It is thus apparent that a network of deprivations and vulnerabilities – poverty, age, gender, caste, lack of safe spaces, lack of schools, lack of proper institutional care for children without functional families – create situations where children are sexually exploited. While some psychologists do argue that violators are ‘psychopathic’ or ‘dysfunctional’ in various ways, it is important to identify and engage with the many ways in which children become disempowered in our society so that they are seen as easy targets of sexual oppression.
Vulnerability or oppression?
Jenny Kitzinger (Defending Innocence: Ideologies of Childhood) critiques the over-emphasis on children’s vulnerability and the resulting lack of control that children have over their bodies. According to her, “…the notion of children’s innate vulnerability…is an ideology of control which diverts attention away from the socially constructed oppression of children…” She suggests that as a first step we replace notions of ‘vulnerability’ with ‘oppression’ or ‘powerlessness’ and discourses of ‘protection’ with those of ‘empowerment’. Going a step further, she denounces the practice of telling a child that s/he “can say ‘no’”. At best she feels that this is an individualist solution. At worst, it is giving the child a sense that s/he can resist a power that in reality, s/he can probably not.
As a society, it is important to recognise that the sexual exploitation of children is fundamentally about power. For instance, the case of a 15-year-old girl who was raped by a policeman in Mumbai shows clearly how both power and the lack of it collude to render children vulnerable. The victim is from a poor family and was to be ‘helped’ by the person who took her to the policeman for sexual exploitation. Her assaulter was not only male and adult, but also a policeman – someone considered very powerful by the aam aadmi in the city.
Those who target children realise that they are less likely to speak about the incident/s, that even if they do few will believe them, that even if they are believed there may be little that community members will do about it, that even if some action is taken there are loopholes in court processes that can be availed of. In the Anchorage case for instance, despite several articulate lawyers and activists being involved in the entire process on behalf of the children who were abused, the High Court saw the children as ‘unreliable witnesses’.
Legislation to protect children from sexual abuse
In order to address various circumstances and degrees of sexual offences against children, in 2005, the Offences Against Children Bill was drafted. In 2007, the law ministry rejected the bill saying that there was no reason for a separate enactment since the various issues the bill focussed on were already covered by other legislations. In 2009 discussions anchored by TULIR Centre for the Prevention and Healing of Child Sexual Abuse led to the framing of a specific bill for sexual offences against children. The Protection of Children from Sexual Offences Bill has currently been sent to the state governments for consideration.
The draft of the Prevention of Sexual Offences Against Children Bill 2011 delineates various kinds of sexual abuse and the prescribed response to each under the law. It clearly distinguishes between sexual assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault and sexual harassment. In each case, the kinds of actions that fall under the section are specified, and minimum and maximum punishments given. In the final section of the Bill, there is a detailed section that lists responsibilities of various dutybearers to the child – police officers, child support services, medical officer and case worker. It also lists the protocol to be followed by police and medical practitioners, as well as during court processes.
1. It acknowledges and engages with sexual crimes of all kinds – real/virtual; penetrative/ non- penetrative; homosexual/ heterosexual/ bestial; verbal/ physical.
Pro: This is a major improvement on the earlier situation, when child sexual abuse was clubbed with sexual abuse of adults. It acknowledges that sexual violations can be of various kinds and that in the case of children, the state must take a clear punitive stand on any kind of sexual violation.
Con: People who provide support to victims of CSA often prefer that the distinction be between contact and non-contact sexual offences. They feel this detailing may offer loopholes in implementation that are not being foreseen currently.
2. It is gender-inclusive, accepting that the perpetrators as well as the victims may be either male or female.
Pro: It is otherwise commonly assumed that sexual abuse can only be initiated by a male upon a female child. The recent study on CSA by the Government of India indicates that boys possibly face more sexual abuse than girls.
3. It puts the onus of innocence on the accused
Pro: Under this Bill, the person accused of CSA would need to prove his innocence rather than having to be proven guilty. This would imply that a person once accused of CSA would be assumed guilty until proven otherwise. Some activists feel that this provision is necessary to protect victims and to ensure that the process focuses on procuring justice for children.
Con: While the intent behind the provision is probably to ensure that the pressure of proof does not rest on the victim, many have raised objection to it stating that it is in violation of a fundamental principle of justice in India - that a person is innocent until proven guilty.
4. It specifies timeframes within which each state must have the required mechanisms and bodies in place to enable it to be responsive towards cases of child sexual abuse
Pro: The length of the legal process has been a recurrent problem especially with criminal cases where children are victims. Under this Bill, there will be separate courts in place within six months, and these courts will have a set of child support systems in place to ensure that the judicial process is responsive.
Con: This puts additional pressure on an already overburdened judicial system, creating yet another parallel track for them to cater to. Instead of facilitating justice, it might be another excuse to delay it.
5. It puts guidelines in place for major stakeholders in the process, in an attempt to ensure processes that are sensitive to the child but that also respect the right of the child to state her/his case/ experience.
Pro: The Bill’s attention to detail leaves no room for abdication of responsibility by those involved in the process of protection of children.
Con: The excessive focus on processes and requirements for specialists duplicates much of what is in the Juvenile Justice Act and only ensures that the process of getting the Bill passed will overwhelm the reason for its existence.
Several civil society actors have given their feedback on the Bill. HAQ: Centre for Child Rights welcomes the Bill but requests that it be opened up for consultation by the parliamentary committee dealing with it as there is still scope for strengthening it. FACSE (Forum Against Child Sexual Exploitation) believes that it might be preferable to introduce changes to the IPC rather than formulate an entirely new legislation. This stand comes from their experience of the challenges posed for implementation, especially in smaller cities/ towns and villages where basic judicial processes are flawed and systems missing. “In Mumbai, there will be pressure to ensure implementation. But what will happen in other cities, where often police and other stakeholders are not even aware of provisions for children under the JJ Act, which is now 10 years old.”
Despite this concern regarding operationalising the Bill, almost all stakeholders accept that the current legislation is insufficient to deal with the many circumstances in which children are sexually abused. There is also an acknowledgement that social workers, superintendents of residential homes, wardens, counsellors, teachers and family members all need training and sensitising to the issue and that a minimum set of actions be put in place enabling people to help a child who is being sexually exploited. It is only by continuing to hear what children say and develop more ways of hearing them and enabling them, that mechanisms can be created to address their exploitation and punish their violators.
This article is available in French: Enfants victimes d’abus sexuels en Inde : la loi du silence
Articles and files
Havovi WADIA, The sounds of silence: Child sexual abuse in India, in InfoChange, March 2011