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Child Molestation - A study in Developmental Victimology

Child abuse is a major problem in India which can no longer be overlooked, since the impact is uncertain – for the children, the impact can either be immediate, or on the other hand, it can also display its effects in the later stages of life.1

There are plenty of instances where the instances of child sexual abuse (CSA) can actually cause irreparable damage to the child.2 Indeed, there are several instances where the studies showed that the victims are capable if demonstrating signs of growth even subsequent to undergoing these traumatic events, it is a must that the cause of these events should be nipped at the bud.

This is no longer a problem which is only whispered about and never dealt with, the judiciary has not accepted it to be one of the most pervasive problems in the Indian society – one which has a profound and deeply traumatic effect on the life of the person undergoing such events.3 Any form of harm or activity which leads to the infringement of the most basic human rights of a child – that is how the World Health Organisation has defined Child Abuse to be.4

A study which was conducted by the Ministry of Women and Child Development in 2007 recorded some astonishing statistics – that about more than half of the children which were covered in the study had fallen victim to the traps of child abuse, and of that total, close to a quarter was subjected to severe levels of child sexual abuse.5

However, that is not what the surprising part about this is – what is astonishing yet is the fact that a remarkably low number of cases have been registered with the police, whether be it under the Indian Penal Code, or the Protection of Children from Sexual Offences Act. There is a stark contrast in the number of cases that are brought to light, and the actual number of child victims in the country.

The consequences are apparent:
the faith in the criminal justice system has dwindled down to a place where the community does not trust it enough to actually bring justice to the aggrieved children. It won't be wrong to say, that from one perspective, the criminal justice system may have gotten its priorities backwards.

Whilst at one hand, the safeguards have been ensured under the laws to ensure that an innocent accused would not be condemned wrongfully, but on the other hand, the victim in the instance has little or no rights whilst the criminal justice mechanism operates, lies forgotten.6 The Indian Criminal Judicial System pays little or no concern to the victim after the proceedings have been initiated, nor is the victim allowed to affect the prosecution.7

Stuck in a place where relief is limited, and the consistently piling up neglect would regardless have led to the crumbling away of the trust in the Indian Criminal Justice System. More so, if the victim happens to be a child. Where the efforts are wasted away being criminal-centric, the rehabilitation, treatment and the punishment for the crime, the victim stands victimized, and the treatment and rehabilitation of the victim is overlooked.

From the perspective of victimology, children are inevitably the most victimized segments of our population, something which is common around the world.8 Victimization is not healthy for a developing tender brain. Coupled with the trauma of child abuse, the effects of victimization subsequent to the cruel acts can seriously derail the growth of a child, such as altering the development of personality, or major health disorders, or worse, development of delinquent tendencies.9

However much like the issue with adult victimization, in the field of criminal psychology, childhood victimization has not been accorded the level of concern which it deserves, and much more studies need to be done so as to establish mechanisms which lead to proper dealings with the child victims and proper efforts are spared so as to ensure successful rehabilitation of the victims, adult and children alike.

This research article has been divided into four major parts – Part I deals with the prevalent social sentiments which act as a hurdle to avoid child victimization and Part II delves into the aspect of victimology, and how child victimological development takes its roots. While the Part III takes a look at the Indian scenario and the legislative and judicial steps to ensure avoiding victimization, the Part IV conclusively suggests a path forward.

The Struggle To Come Forth

One of the major reasons why the number of child sexual abuse cases in India linger on the lower end of the table, is because children at large are unable to voice their concerns and plights.

There are a variety of reasons why this happens:
majority of the children are hesitant, and are unable to talk to the authorities, or the responsible adults, provided they speak at all. Helplessness is one of the contributing factors which causes this, combined along with the fact that eventually, they bottle it up, and their pain never comes to light.10 The societal structure also contributes greatly in this stigma which has formed around child sexual abuse.

More often than not, the instances, if ever are brought to light, are curbed and kept low by the family members, or the authorities discourage the reporting of such instances by offering negotiations and compromises with the perpetrator of the abuse. No wonder the rate of reporting has declined rapidly.

However, such disregard of plight of the victims is not simply attributable to the society – the judicial system deserves equal blame. The portrayal of the plight by the Judiciary in their judgements depicts a scenario where it is communicated to the society that the ones who dare to bring to light the instances of abuse or those of rape, then they must have readied their minds to face the whole world around them.11

The suffering differs too, as when you view this crime from the perspective of a male child, the suffering multiplies:
that is partly due to the prevalent stigma in the patriarchal society we reside in.12 The consciousness around the males of the society make it even harder for them to step forth and allow their suffering to come to light, and as expected, the number of cases of child abuses reported by male children were significantly low as compared to those reported by the female children. However, this does not portray the true picture – statistically, the male children are sexually abused more than the young girls.13

Stigma can take several forms, and the worse case scenario comes about when the abuse of the child is done at the hands of someone from within the family – the conflicting emotions of the victim make it difficult for the perpetrators to be punished properly. In the name of the secrecy of the family, the perpetrators of the offence are kept safe from being put behind bars.14

Lack of knowledge in the victims also plays a role. As there is little or no initiative by the adults in educating the children as to what counts as sexual abuse, and what does not, the children do not no whether they are being wrongly treated by an adult. Often, simply due to the lack of cognition of the act being that of sexual abuse, the children are unable to properly express their sufferings, and eventually fail to report such abuse. However, the troubles simply don't end there. The worse and the ultimate issue with reporting such instances comes with the eventual consequence of  victim-blaming.

The most troublesome stigma Indian society faces right now is the tendency to shove the blame on to the victim for having played role in the eventuality where such abuse befell them.15 The fact that they may be innocent, and were actually subject to unjust cruelty and sexual abuse, is discarded at a very early stage,16 and the disbelief at the hands of the responsible people often leads to further trauma for the children, probably worsening the situation before even the procedure of Justice has been enabled. Not only that, the requisite mental help which the child would need at this stage is also denied.17

In light of such societal constraints limiting the alleviation of the plight of the children, a lot needs to be done so as to initiate a change in the direction where the future of the children is not burdened with such abuses, and if they are subject to such treatment, there are not unwarranted hurdles to act in the way of them receiving proper justice.

The fact stands that in the year 2016, no more than 19,765 cases under the Section 376 were registered under the Indian Penal Code, and under POCSO, only 36,022 cases were brought to light. Against the staggering number of children in the country under the age of 18 who are subject to unjust sexual abuse, these are meagre numbers, and the majority of the cases are wrapped under the covers, and the pain of these children fails to even see the faint glimmer of justice.

The Victimological Development And Children

When it comes to children, it is needless to say the fact that the victimization in children is obviously different from the victimization that adults undergo. On one hand, in general forms of other violent acts, the children obviously suffer through the same type of victimization.

Even in acts of acts of sexual abuse, the nature of victimization essentially remains the same, save for one addition. That is to say, the status of the child adds one aspect to their victimization which is not commonly found in the event of adults – that is the aspect of dependency.18

In the case of a child, the lack of emotional and physical maturity brings about the condition of dependency on their surroundings, which is a common trait of childhood, and in the event when such dependency is violated, the child is subject to another form of victimization, which is not commonly undergone by most adults. Dependency can be an attribute which is essentially specific to the conditions of the children and their surroundings.

Needless to say, the variance in the dependency of the child creates different other forms of victimizations, and their vulnerability is also greatly dependent on this dependency on their surroundings. However, not all forms of child victimization can be categorized solely on the bases of being-dependency related or in not being so. There are some forms of victimization which actually fall at the very midst of this categorization – sexual abuse and physical abuse of children.

While at one hand, consensual sexual acts with children are considered victimization because of the fact that the child concerned lacks maturity and of course dependent. However, on the other hand, acts of sexual abuse with a child would be considered child victimization, even when the case is with that of an adult on which the child is not dependent.

Of the types of victimizations that a child can be subject to, the acts of child sexual abuse fall under the category of being 'acute' victimizations, which are less frequent as opposed to the majority of other forms, but tend to be severe as compared to the weaker forms of victimizations.19

Victimology is still pondering over the different manners in which the children find themselves victimized as a result of their circumstances. Immense developments have been witnessed in the study of child victimology in concern to sexual against children, and the changing ways and processes are being incorporated – the recent being the incorporation of internet victimization.

This type of victimization, as of now, majorly revolves around sex crimes which are done over the internet, exposure of children to pornographic material by force, as well as cyber-bullying.20 Different perspectives are evolving as research continues, such as the fact that child sexual abuse, child sexual assault and child molestation, which were terms used interchangeably, have developed different meanings over the period of time where new data continues to be incorporated.

Child Sexual Abuse, when defined in the sense accorded to its words, incorporates into it the acts of sexual abuse done by the ones taking care of the children, while the definition does not include such acts when committed by strangers. Likewise, when child molestation is talked about, the meaning immediately is connected with acts of sexual abuse done by adults, however, the acts which done by other underage children are excluded from the meaning accorded to this phrase.

Child sexual assault also is usually taken to mean violent sexual acts done against children, but the nonviolent acts still remain from the scope of this phrase.21 However, the understanding int his field is still shaky, and the room of restructuring is rampant, even more so than the need for development.

The Indian Legal Structure For Victims

Undeniably, the way the Indian Criminal Justice System works, is not exactly oriented towards the victim. Rather, the entire focus of the system is centralised around the establishment of the guilt of the offender, and punishment or acquittal of the same, depending on the circumstances.22 But in the midst of this rush, the cries of the people who have suffered the most in these instances remain forgotten i.e. the victims.

It is only natural that the ones who have had to undergo unspeakable misery would want to have some representation in the process which is meant for the incarceration of the person responsible for their suffering. Such empowerment of the child victims is necessary to initiate the restoration process of their psyches.

By being heard by the system meant to provide justice to them, the same should let them regain control over their minds and body, that which they had lost when they were cruelly violated against their will and consent.23 However, such a concern is not properly represented in the Indian Criminal Justice System.

Undeniably, India has undertaken steps to ensure that a measure of control can be exercised over the acts of sexual abuse against children, which was the POCSO, 2012. But despite such legislation, the number of children facing sexual abuse keep on the rise, and are mounting number which were hitherto unseen.=

It was implausible for the Indian Judiciary for simply take the back seat and let the tragedy unfold, and thus, several changes were later introduced to the Indian Penal Code with the Criminal Amendment Act, 2019. The purpose of POCSO Act is to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse.

The sanguine purpose is to safeguard the interest and wellbeing of the children at every stage of judicial proceeding. It provides for a child friendly procedure. It categorically makes a distinction between a child and an adult.

These concerns which the Indian legal system faces currently were also voiced by the Malimath Committee which was formed in 2003 under the leadership of Justice V.S. Malimath. The committee put forth the idea that the century-old legal justice system which operated in India was a drag instead of being an asset. Quite foresighted, the committee appropriately suggested that the system which was too centric on the accused while ignoring the pleas of the victim would be detrimental to the future of the legal system. Several recommendations were made at the time, all of which intended to allow the victim to be more pro-active in the criminal justice system.

More so than in the case of adults, in the instance of child victims of sexual abuse, the consideration of the stance of the victim is indispensable. The victims of child sexual abuse are faced with a fundamental need to remain under the assurance that the suffering they have undergone once shall not be repeated to them ever again. This assurance is more important in their rehabilitation than most other things.24

The present Indian System has incorporated means to provide compensation to the victim, which in the opinion of the system, is a sufficient assurance in itself. The Criminal Procedure Code (Amendment) Act, 2008 has in it provisions which provide for compensation to the people who are victims of crime.25

Earlier, in the case of K.A. Abbas H.S.A. v. Sabu Joseph, the court came to the conclusion as to the essence of this provision – going so far as to say that the provision was to accommodate the interests of the victims into the criminal justice system.26 However, the Indian Judiciary has to realise, that mere monetary compensation is a means to rehabilitate the victim, but that is not the end in itself. Incorporating the stance of the victim into the system does not end here. Rather, such measures are merely the starting line for such efforts.

In line with the suggestions made by Malimath Committee, the decision of the Supreme Court in Nilahati Behera v. State of Orissa 27, and the Chandrima Das Case 28, depict the trend which is now being adopted by the judiciary to provide proper justice to the victim to the crime, rather than keeping them oblivious to the proceedings completely. However, there is still some time before the same can be said for the juvenile victims.

Conclusion
Juvenile victims get neglected, and although the situation is not peculiar to India, the situation is still admittedly much worse. The major reason can be attributed to the social stigma prevalent here. Before the crime can be addressed, it is necessary that it be brought to light. However, the social conditions are such worse in the Indian society, that due to a variety of reasons, the same is curbed into hiding and never reaches the open.

Child sex abuse has become rampant, and the criminal justice system is not being effective enough in dealing with the situation such that the plight of the victims can be alleviated. The needs of the child victims are futile as the are falling on unperturbed ears of the legal framework. The role of the victims has been diminished far beyond what it should be, and the measures need to be taken at the earliest possible in order to ensure that the escalating crimes are addressed.

The minimal measures taken by the Indian Judicial System are incomplete:
they do not address the needs of the victim. What the victim needs is punishment to the perpetrator, and further, assurance that they shall not come in harm's way again, once the judicial system has run its course, and in the process of achieving so, they also want to be a part of the process which leads to their satisfaction. However, none of these needs have been incorporated into the process. If the legal framework in India were to be reviewed in hindsight, aside from the provision assisting compensation to the victims, there has been no statutory development which could be said to assist the victims of the crimes. Due to the absence of any legislation on this

aspect the sufferer of crime i.e. the victim is seemed to be ignored. Many victims do not go to the police out of fear of adverse publicity and unnecessary harassment. But in case of child, he is unknown to the justice system of the country which results into the increase in the unregistered cases which leads to the failure of restoration of the child into the society. Apart from the delay or even absence of justice, the victims face similar incidence every now and then and they do not find any safe place in society and do not see any future prospects for living their life with dignity.

With the system being as it is, the victims feel discouraged more so than anything else to participate, since with the proceedings moving forward, the victims are not encouraged to add new information to the proceedings. The reason being, that the credibility is lost gradually as new information is presented. However, this conception is flawed. Children are volatile brains, and the processing of their brains, which leads to the disclosure of truth in a chronological gap is important to note.

However, the current system does not agree to open their minds to this. A child victim demands a much greater level of care, otherwise, the conditions and circumstances around them, and the factor of dependency ultimately bring them to a position where the trauma refuses to subside.

Victims in the Indian Criminal Justice System have never been treated well, however, the times demand a change. The approach towards the victimization is already taking a new leaf, with the judiciary realizing that being a silent spectator to the predicament is not viable anymore. Child victims, and all other victims in general, deserve their role in the criminal justice system, such that they are able to influence the outcome and have their plight acknowledged.

Accountability and restitution:
on the basis of these two pillars, the approach towards the child victims needs to be formulated afresh. Where at one hand, the people responsible for making the children suffer need to be held accountable for their wrongdoings, on the other hand, the restitution and rehabilitation of the child victim should be tended to with utmost care.

There is also a need for uprooting the social stigma regarding sexual abuse – which demands a social movement involving acquainting the youth to sexual education, and also removing from their hearts the fear of social condemnation. Only with the balance of these two, and a socially aware society, can the menace known as child molestation be curbed.

End-Notes:
  1. S. DEB, CHILDREN IN AGONY. (2006, New Delhi: Concept Publishing Company)
  2. Cicchetti, D., & Toth, S. L. (2006). Building bridges and crossing them: translational research in developmental psychopathology. Developmental Psychopathology, 18, 619–622.
  3. Ankush Kumar v State (para 8) Crl. M.C. 4046/2015 & Crl. M.A. Nos. 14412-14413/2015 (Delhi High Court, Sept 30, 2015).
  4. World Health Organization. Child Maltreatment (Available at - http://www.who.int/topics/child_abuse/en/).
  5. 2, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, STUDY ON CHILD ABUSE: INDIA, 74-75 (2007).
  6. Raina S.C., Evolution of victimological Jurisprudence in India Law, JUDICIARY AND JUSTICE IN INDIA, (New Delhi: Deep and Deep Publications), (1992), 82
  7. V.N. RAJAN, VICTIMOLOGY IN INDIA – AN INTRODUCTORY STUDY, (1995, New Delhi: A.P.H Publishing Corporation).
  8. Hashima, I'., & Finkelhor, D. (1999). Violent Victimization of Youth Versus Adults in the National Crime Victimization Survey, J INTERPERSONAL VIOL., 14(8), 799-820.
  9. Margolin, G., & Gordis, E. B., (2000), The Effects of Family and Community Violence on Children, Annual Review of Psychology, 51, 445-479
  10. Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 CHILD ABUSE & NEGLECT 177-93 (1983).
  11. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 3 SCC 217 (1983), 10.
  12. Tewksbury, R., (2007), Effects of Sexual Assaults on Men: Physical, Mental and Sexual Consequences, 6 INT.OF MEN'S HEALTH, 31.
  13. Supra nt. 5.
  14. Carson, D., Foster, J., & Chowdhury, A. (2014), Sexual Abuse of Youth and Youth in India: An Anthropological Perspective, 14 The Oriental Anthropologist, 160.
  15. Ahrens C. (2006), Being Silenced: The Impact of Negative Social Reactions on the Disclosure of Rape, 38 AMER. J. COM. PSYCH., 31-34.
  16. roni berger, stress, trauma, and posttraumatic growth (2015).
  17. Priyabadini, S., Child abuse in Indian families, in Carson D.K. et.al. (Eds.), Indian Families At The Crossroads: Preparing Families For The New Millennium, (2007, New Delhi: Gyan Pub. House), 107-121.
  18. Finkelhor, D. (2007), Developmental Victimology: A Comprehensive Study of Childhood Victimizations, in DAVIS R.C., LUIRIGIO, A.J. (Eds.), VICTIMS OF CRIME, (2007, 3rd edn., Thousand Oaks CA).
  19. Finkelhor, D., & Dziuba-Leatherman, J. (1995), Victimization prevention programs: A national survey of children's exposure and reactions, in CHILD ABUSE & NEGLECT, 19(2), 125-1 35.
  20. Wolak, J., Mitchell, K. J., & Finkelhor, D. (2006), Online Victimizations: 5 Years Later, National Centre for Missing and Exploited Children Bulletin. #07-06-025. Alexandria, VA.
  21. Supra nt. 18, 13-14.
  22. Howard zehr, changing lenses: a new focus for crime and justice, 69 (2015).
  23. oudshoorn, j., amstutz, l.s. & jackett, m. (2015), the little book of restorative justice for sexual abuse, 27.
  24. tali gal, child victims and restorative justice (2011), 44.
  25. Section 357A, Code of Criminal Procedure, 1973.
  26. (2010) 6 SCC 230.
  27. (1993) 2 SCC 746.
  28. (2000) 2 SCC 465.

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