"Safety and security don't just happen, they are the result of collective
consensus and public investment. We owe our children, the most vulnerable
citizens in our society, a life free of violence and fear." - - Nelson
Child sexual abuse (CSA) is a broad term that refers to a kind of child abuse in
which an adult or older adolescent exploits a child for sexual purposes. In
several situations, such as the home, school, or public locations, it can be
either touching or non-touching. The CSA is one of our society's most ubiquitous
societal issues. It has a significant impact due to the regularity with which it
occurs and the trauma that a child encounters.
The WHO considers CSA as sexual activity between a child and an adult or another
child, in which a child "does not fully comprehend, is unable to give informed
consent to, or for which the child is not developmentally prepared and cannot
give consent, or that violates the laws or social taboos of society" (WHO,
2003). While the Indian Penal Code (IPC) does not classify child maltreatment as
a sexual offence, it does punish a child sex offender under specific provisions.
For example, rape (Section 375), outraging a woman's modesty (Section 354),
'unnatural offences' (Section 377), and procuring minor girls by enticement or
force to seduce or have illicit intercourse (Section 378) are all crimes
(Section 366-A). However, none of the above sections represents that CSA is
constituted of what legal terms (Belur & Singh, 2015).
A study on child abuse in India by the Ministry of Women and Child Development
in 2007 founds that only 53.22% of children reported sexual abuse. There were
52.94% boys and 47.06% girls among them. The states with the greatest rates of
sexual abuse and assault were Andhra Pradesh, Assam, Bihar, and Delhi. 21.90% of
children who responded said they had experienced serious sexual abuse, 5.69%
said they had been sexually assaulted, and 50.76% said they had experienced
other types of sexual abuse (GOI, 2010).
The 'Protection of Children Against
Sexual Offences (POCSO) Bill, 2011' was enacted by the Indian parliament on May
22, 2012, and went into effect on November 14, 2012, after years of lack of any
special CSA laws in India that treated children different from adults in the
instance of a sexual offence (NDTV, 2012).
Objectives Of Topic
Broadly, the main objective of this issue is to grasp the terminologies and
meanings connected to child sexual abuse, decode socio-cultural perspectives of
abuse and reporting, describe the legal limits, and finally, offer possible
suggestions for improvements. Let's understand each one of them extensively
- To conceptualise a more exhaustive and comprehensive or holistic definition of
child sexual abuse in all its forms as experienced by children. Also,
understanding how CSA can be suspected.
- To assess the causative factors of the wide prevalence of this sexual abuse and
socio-cultural perceptions in society particularly children's status in society.
Further, relating it to the impact of reporting a CSA on a child.
- To identify features and the constraints under the existing legislation and
especially the POCSO act and the reasons for its limited relevance in curbing
- To document the testimony, of the plight of a child experiencing sexual abuse
and about the conditions, and entitlements.
- To suggest possible workable measures for empowerment of children facing sexual
abuse and support mechanisms.
Now, let's decode each of the above-mentioned objectives in the following
- Comprehensive Understanding and Holistic Definition of Child Sexual Abuse
Definition Child Sexual Abuse and its Forms:
All forms of sexual victimisation of children are covered under the CSA,
including penetrative and non-penetrative sexual intercourse, pornography,
sexual harassment, commercial sexual exploitation, sex tourism, and online
exploitation (Bhave & Saxena, 2013). The (POCSO Act, 2012) in India defines
numerous types of sexual offences, which are listed below.
Forms of Sexual Abuse:
The perpetrator and the victim seemed to have physical contact in this
case, which included penetrative intercourse, fondling of the victim's genitals,
and so on (Bhatnagar, n.d.).
Non-Physical: Abuse can occur even if there is no physical touch. Showing
pornographic content or utilising a minor for the same, stalking, sexting,
playing sexualized games, and so on are examples.
If a kid commits an offence,
the POCSO Act will still apply, but the procedure will be governed by the
Juvenile Justice (Care and Protection of Children) Act, 2015. (ibid).
Incest: The term means a prohibited sexual relationship between close relatives
in a family (Section 5(n) of POSCO Act). In this case, as per Section 6 of the
POCSO Act, the assaulter is susceptible to no less than ten years of
imprisonment and also a fine.
Commercial Sexual Exploitation of Children:
This can be characterised as when an
adult sexually abuses a child for monetary gain or when the child is treated as
a commercial or sexual item. Child prostitution, child sex tourism, and child
trafficking are the three types of child trafficking. Child sexual abuse imagery
is defined as any visual depiction of sexually explicit conduct involving a
minor, as defined by section 67 (b) of the IT Act, 2000, and sections 13 and 14
of POCSO, 2012.
Online Sexual Abuse:
This is a type of online sexual abuse that occurs over the
internet. Cyberbullying, grooming, sexual exploitation, and emotional abuse are
all common among teenagers.
However, the lack of particular legislation for recognising a wide range of
objectionable CSA behaviour, including harassment, fondling, exhibitionism,
voyeurism, and pornographic exploitation, has never been legally sanctioned.
Until 2012, the only not specific to children-sexual offences covered by three
sections of the IPC were rape (Section 375), outraging a woman's modesty
(Section 354), and unnatural acts (Section 377). As a result, crimes such as
non-penetrative sexual assault, harassment, and exploitation went unpunished (Patil,
Furthermore, after sufficient pressure was created by NGOs and the Ministry of
Women and Child Development, new legislation (related to earlier arguments) was
enacted, namely POCSO, 2012. It is gender-neutral and also recognises boys as
sexual abuse victims. It criminalises child sexual assault, harassment, and
pornography, as well as additionally mandates the establishment of special
courts to expedite trials (ibid).
How can we suspect a CSA?
In general, healthcare practitioners play an important role in identifying
children who have been sexually abused. Visible symptoms of sexual assault are
frequently minimal, with less than 5% of victims displaying physical signs of
abuse (Hornor, 2011). Adolescents frequently exhibit behavioural indications
such as breaking laws and engaging in inappropriate social behaviour, as well as
poor academic performance and absenteeism (Krug et al., 2002). Healthcare
personnel must respond correctly to behavioural, verbal, or nonverbal
communication such as sign language or a series of motions that may reveal a
history of abuse because physical indicators are not always present during the
Nevertheless, no single health professional can be regarded to be responsible
for detecting these clues; rather, a multidisciplinary strategy involving
experts can improve the possibility of detection.
- Causative Factors of the Prevalence of this Sexual Abuse and Socio-Cultural
Perceptions in Society.
Factors responsible for the prevalence of CSA:
CSA happens in all societies around the world and the causes vary greatly. Some
of the probable causative factors could be (Bhatnagar, n.d.):
Sex education and sexuality are stereotypes in India: In our society, there is a
hesitation and cultural aversion to addressing sex and sexuality, especially
with children. Adolescents remain ignorant and in danger due to a lack of
instruction and proper understanding, as well as misconceptions and myths about
Forbearance to Gender‐Based Violence:
We presume that if women and children
break the "line of morality" established by our patriarchal culture, certain
things will happen to them. Women's representation in popular media, as well as
prejudices propagated by popular films also contribute to our population's desensitisation to gender-based violence against women and young girls.
A Culture that Believes and Values Adults Over Children:
Children are seen as
citizens who are not yet completely matured. Without even the slightest critical
engagement, they are taught to 'respect' the full authority of adults. As a
result, a kid who has been sexually abused is frequently unaware that an adult
could do such a thing to him or her.
Impact of Reporting Child Sexual Abuse
Victim Blaming: In numerous situations of sexual attacks against women and
children, the media and society at large have been quick to blame the victim,
particularly if the child is a girl, with regressive sentiments indicating that
the victim "brought it on to herself." Amid the moment, it's easy to lose sight
of who is the victim and who is the perpetrator (Follette et al., 1996).
Real and Perceived Threat to Victim and Family: There is always the worry of
being ostracised by the community. The real or perceived loss of "honour" and
humiliation may also imprison victims and their families in a vicious circle of
extortion and additional abuse. In a civilisation that prides on conventional
notions of masculinity, boys are afraid that they will be tagged 'unmanly' and
mocked if they reveal the abuse (ibid).
- Features and the Constraints under the Existing Legislation and Especially the
POCSO Act, 2012.
Before discussing the contentions around the existing legislation and especially
the POCSO act, let's understand its distinctive features;
Distinctive features of the POCSO Act, 2012
The POCSO Act, which is based on Article 15(3) of the Indian Constitution,
allows the government to take special measures for children (NCPCR, 2017). It
considers everybody under the age of 18 to be a "child." The IPC does not
recognise boys as sexual assault victims; however, the POCSO Act is
gender-neutral and recognises that boys can be sexual violence victims.
has established the principle of "guilty until proven innocent" rather than the
general principle of "innocent until proven guilty" (Section 29). (Patil, 2021).
Penetrative sex is defined in the POCSO Act to include not just penile
penetration, but also oral sex and the insertion of any item into the anus,
mouth, or genital (Section 3).
The Delhi High Court refused to prosecute the
accused of rape in the case of State vs Pankaj Chaudhary (2011) because digital
penetration of the anus, vagina of a 5 or 6-year-old girl was not recognised as
an offence under the IPC. As a result of the POCSO Act and the 2013 Amendment,
the breadth of the definition of rape has been expanded, increasing the
protection of children (ibid).
To prevent information from being misused, the law also specifies penalties for
false complaints or information given with hostile intent. The Act requires that
the case be reported and recorded. In all incidents of CSA, the police officer
must file a First Information Report (FIR) (Section 21, 22).
Contention around the Implementation of the POCSO Act, 2012.
Definition of Child:
A child is defined as someone under the age of 18 in the
Act. This definition, however, is solely biological and does not account for
persons who have intellectual and psychosocial problems. A recent instance in
Supreme Court had been filed where a woman who was raped at the age of 38 years
but just 6 years mentally. "Failure to evaluate the mental age will be an attack
on the core aim of the statute," the victim's advocate contended.
Court ruled that Parliament deemed it reasonable to define the term "age" by
chronological or biological age as the safest yardstick, rather than referring
to someone who is mentally retarded. While awarding maximum compensation to a
rape victim who is 38 years old and has a mental maturity of 6 to 8 years, the
court rejected the argument that the victim's age should be considered not only
in physical terms but also in mental terms. Cerebral palsy was the victim's
condition (Belur & Singh, 2015).
Contradiction with the Medical Termination of Pregnancy Act, 1971:
Protection of Children from Sexual Offenses Act was enacted to increase legal
protections for children under the age of 18 against sexual exploitation and
abuse. If a girl under the age of 18 seeks an abortion, the service provider is
required by law to file a sexual assault complaint with the police. However, the
identity of the person seeking an abortion is not required to be disclosed under
the Medical Termination of Pregnancy Act. As a result, providers are cautious to
provide abortion services to girls under the age of 18. (ibid).
The Act mandates that every case of child sexual abuse be
reported. If a person with knowledge of abuse fails to disclose it, they could
face up to six months in prison, a fine, or both. This provision has been criticised by several child and women's rights organisations. According to
experts, this clause deprives children of their agency of choice. Many survivors
may not want to go through the agony of the criminal justice system, but this
clause does not make that distinction. Mandatory reporting may also obstruct
access to medical assistance and psychosocial support. It goes against the right
to privacy when it comes to medical and psychiatric care (ibid).
Victims can get legal help under Section 40 of the Act. However, the
Code of Criminal Procedure controls this. To put it another way, a child's
lawyer can only assist the Public Prosecutor, and the file is only written final
arguments if the judge allows it. As a result, the victim's interests are
frequently ignored (Singh & Kumar, 2019).
Administrative Pitfalls: When it comes to POCSO, there are two major
administrative mistakes to avoid. To begin with, despite their best efforts,
police officers encounter numerous obstacles in completing a thorough
investigation into POCSO incidents. It all starts with the filing of the First
Information Report (FIR). The police must ensure that the FIR is registered
quickly and that the Medico-Legal Case is handled efficiently.
The second issue
is that, under Section 43-44 and Rule 6 of the POCSO Act, institutions such as
the National and State Commissions for the Protection of Child Rights are
mandated to routinely monitor and review the Act's implementation, as well as
raise public knowledge about its provisions. The operation of such departments,
as well as their monitoring and assessment mechanisms, have not, however, been
made public. To this end, it's critical to examine the procedures created by
such organisations and assess how effective they are at producing tangible
results (Agnihotri & Das, 2015).
- Documenting the Case of a Child's Murder after Sexual Abuse and
her Entitlements according to Legislation.
Infamous Delta Meghwal Rape Case, 2016
Delta Meghwal, a 17-year-old Dalit girl, was found dead in a college water tank.
Meghwal's parents filed an FIR alleging rape and murder. They claimed that she
called his father the day before the murder to inform him of the rape. Her
father also stated that the college attempted to cover up the occurrence under
the excuse of suicide, alleging that it compelled Meghwal and Singh to sign a
written apology indicating consensual intercourse. Singh and the other two were
detained and taken to prison by Bikaner police after the complaint was filed.
Meghwal was raped and drowned, according to the forensic report. Belatedly, the
victim's father demanded intervention by the CBI (TOI, 2021).
Then, at the Police Station, a written report with these allegations was
submitted, and an FIR was filed for the offences of rape and 305 IPC (abetment
of child suicide) and Sections 3 (2)(V) and 3(2)(VI) of the SC/ST (Prevention of
Atrocities) Act, as well as Sections 5, 6 i.e. sexual assault and Section 21 of
the POCSO Act. The case was first tried by the Special Court under the
Prevention of Atrocities (Scheduled Caste and Scheduled Tribes) Act 1989, and
the three were later found guilty and sentenced to life in prison by the POCSO
Identification Of Socio-Legal Instruments And Legal Analysis
Children are the country's future, so the government must ensure their
appropriate development. A country's development index is also influenced by the
quality of its human resources. The Goa Children's Act, 2003 (Shirvoikar &
Shirvoikar, 2017) was the only explicit piece of child abuse legislation before
the 2012 POCSO Act. CSA, on the other hand, was prosecuted under IPC 375
("Rape"), IPC 354 ("Outraging the modesty of a woman"), and IPC 377 ("Unnatural
offences") of the Indian Penal Code (IPC), 1860. The IPC, on the other hand, was
unable to properly protect the child due to several flaws, including:
Other than "conventional" peno-vaginal intercourse, IPC 375 does not protect
male victims or anybody else against sexual acts of penetration.
There is no statutory definition of "modesty" in IPC 354. It has a light penalty
and is a repeatable offence. Furthermore, it does not safeguard a male child's
The phrase "unnatural offences" is not defined in IPC 377. It only applies to
victims who have been penetrated by their attacker's sex act, and it is not
intended to make child sexual abuse illegal.
Punishment for Offences covered in the Act are:
Reporting of a Child Sexual Abuse Case
- Penetrative Sexual Assault (Section3)- Not less than seven years which may
extend to imprisonment for life, and a fine (Section 4).
- Aggravated Penetrative Sexual Assault (Section 5)- Not less than ten years which
may lead to imprisonment for life, and a fine (Section 6).
- Sexual Assault (Section 7)- Not less than three years which may extend to five
years, and fine (Section 8).
- Sexual Harassment of the Child (Section 11)- Three years and a fine (Section
- Use of Child for Pornographic Purposes (Section 13)- Five years and fine and in
the event of subsequent conviction, seven years and fine (Section 14 (1) ).
'Reporting of offences' by an individual, including children, is now required
under Section 19 of the POCSO Act. Failure to disclose or document a case of
child sexual abuse is punishable under Section 21 of the Act (NCPCR, 2017). The
consequences imposed in the law are also rigorous and are commensurate with the
nature of the offence.
Fig. (NCPCR, 2017)
Important Judgements And Case Laws Around Child Sexual Abuse.
Sakshi v. Union Of India AIR 2004 (5) SCC 518
Sakshi, an NGO focused on violence against women, filed a PIL in India's Supreme
Court to declare that "rape" under India's criminal rape law Section 375 of the
IPC includes all forms of forcible penetration. Sakshi stated that the current
interpretation of the legislation violated both the Indian Constitution and
India's international obligations under agreements like the UN Convention on the
Rights of the Child and the UN Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). At the same trial, the Special Court
established under the POCSO Act will have jurisdiction to try offences under the
POCSO Act and other Acts with which the accused may be charged.
Independent Thought v. Union of India, (2017) 10 SCC 800
In this case, the Supreme Court read down Section 375, Exception 2, IPC to
reconcile a discrepancy between Section 375, IPC and the POCSO Act, 2012.
(Sections 5 and 41, 42). As a result of this change, the provisions of the POCSO
Act will take precedence over any other legislation (including the IPC) to the
extent of any discrepancy (paras 48 & 49).
Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110
The Madras High Court ruled that the concept of "Child" in Section 2(d) of the
POCSO Act can be amended to 16 years old rather than 18. Any consenting
intercourse after the age of 16, as well as body contact and allied activities,
may be exempt from the POCSO Act's restrictions.
Though not a perfect solution to the problem, legislation to protect children
from sexual offences is critical in guaranteeing a secure and carefree future
for them. Although now it is high time for such legislation to take effect, it
is not without its restrictions. It requires the establishment of a restitution
process for incidents of sexual offences, but it does not alter society's moral
foundation. Furthermore, whatever laws are enacted to protect the interests and
welfare of children, the outcome is determined by the spirit in which they are
Identification Of International Legal Instruments, Conventions And Other Regional Rights.
The United Nations Convention on the Rights of the Child (CRC) was an
international convention that required countries to respect the rights of
children. States are required under Articles 34 and 35 of the CRC to safeguard
minors from all forms of sexual exploitation and abuse. The convention has been
ratified by 196 nations as of 2015.
In chronological order, UNICEF (Newell, 2008) compiled a few advancements in the
area of child rights against sexual abuse. The CRC, which was established in
1989, is based on the International Bill of Rights. It has explicit protective
rights against all sorts of abuse and exploitation, including sexual
Many additional international agreements, such as the
International Covenants on Civil and Political Rights and Economic, Social, and
Cultural Rights, and the Convention to End All Forms of Discrimination Against
Women, are crucial to addressing and eliminating child sexual exploitation. The
international legal framework includes terminology and definitions for various
kinds and manifestations of child sexual exploitation, including the CRC and its
Optional Protocol on the sale of children, child prostitution, and child
Other key human rights instruments also play an important role in monitoring the
development and implementation of legislation related to child sexual
exploitation protection. For example, the Palermo Protocol, which has been
ratified by 123 countries, prohibits and punishes human trafficking,
particularly of women and children. Convention 182 of the International Labour
Organization (ILO) mandates states to prohibit and abolish "as a matter of
urgency" the worst kinds of child labour, which are defined to encompass various
forms of sexual exploitation. Furthermore, the International Criminal Court's
Rome Statute codified significant breaches against children, particularly
widespread and systemic sexual abuse, as crimes against humanity and war crimes,
providing an important instrument for combating impunity.
New international instruments, such as the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families,
which was ratified by 39 countries in 2008, have prohibited them from being held
in slavery or servitude or subjected to forced labour, which includes forms of
sexual exploitation of children, since 2001. Finally, successive UN General
Assembly and Commission on Human Rights resolutions on the rights of the child
have given depth to these promises to prohibit and abolish all types of sexual
exploitation of children and to protect children from all forms of abuse.
Few of the workable measures for empowerment of children facing sexual abuse and
support mechanisms according to our analysis of the above findings are hereunder
(World Health Organization, 2017, 18):
Observations And Conclusion
- To improve the availability and quality of data, adopt standard definitions and
metrics of child sexual abuse.
- Develop and install real-time surveillance technologies to measure recent and
lifetime exposure to child sexual abuse perpetration and victimisation.
- To expand our understanding of all facets of child sexual abuse, collect data on
victimisation and perpetration of all forms of child sexual abuse.
- Identify individual, relationship, community, and societal risk and protective
factors for child sexual abuse at different levels of impact.
- To guide primary prevention efforts, examine and distinguish between different
types of child sexual abuse perpetration.
- To better prevent all forms of violence, figure out how risk and protective
factors for child sexual abuse interact with other forms of violence.
- Strengthen and develop policies, programmes, and practises that are
evidence-based. Examine evidence-based strategies across a variety of people,
communities, and environments.
- Identify, design, and evaluate programmes and practises that reduce CSA
perpetrated by juveniles and adults. The information needed for effective
primary prevention initiatives must be available to youth, local organisations,
government agencies, and others.
Sexual harassment lawsuits involving children have far-reaching consequences for
the victims throughout their lives. After conducting extensive research in this
area, it has been determined that there is clear evidence demonstrating a direct
link between child sexual abuse and the victim's mental, physical, social,
sexual, and behavioural health.
Child sexual abuse has previously been connected
to severe personality disorders such as post-traumatic depression and anxiety,
as well as substance misuse and alcohol usage among victims. In both males and
females, there is an increased risk of re-victimization of the child if proper
attention is not provided to the issue. According to some recent studies, there
is a link between suicides, suicidal behaviour, and child sexual abuse. Numerous
defects in the institutional structure exacerbate child sexual abuse situations,
and these incidents have a significant impact on the child's personality, as we
have already described.
Sexual abuse of children, our society's most vulnerable element, is a sad
reality today. In India, such topics are rarely discussed openly and are
frequently seen as a societal taboo. Most families seek to keep such situations
hidden, maybe to protect the child's interests. To prevent the trials, all
elements of society must be made aware of the situation, and the court system
must be overhauled.
In addition to the recent legislation providing an effective
framework for dealing with child-related sexual offences, there is an urgent
need to implement specific preventive measures to ensure that the risks of
sexual exploitation of children are kept to a minimum. Aside from that, better
application and enforcement of existing rules are essential. Finally, children
are our country's future, and the threat they face must be combated on all
fronts and at all levels.
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