The Protection of Children from Sexual
Offences Bill, 2011 which was passed in the Rajya Sabha on 10 May 2012 and in
the Lok Sabha on 22 May 2012 received the assent of the President of India on
20 June 2012. It is now known as the Protection of Children from Sexual
Offences Act, 2012 and is the law of the land.
This is a piece of landmark legislation.
For the first time a special law has been passed to address the issue of sexual
violence against children. It seeks to protect all children below the age of 18
from sexual assault, sexual harassment and pornography. These offences are
clearly defined for the first time in Indian penal law. The Act provides for
stringent punishment to the offenders. Aggravated Penetrative Sexual Assault,
for example, carries an imprisonment of no less than 10 years, which can be
extended to imprisonment for life.
Unique Features
The Act has some remarkable positive features. It provides for the
setting up of Special Juvenile Courts and appointment of Special Public Prosecutors
for the speedy trial of the accused. The evidence of the child is to be
recorded within 30 days and the trial to be completed, as far as possible,
within a year.
It provides a number of child friendly measures related to reporting,
recording of evidence, investigation and trial of offences.
The statement of the child is to be
recorded as far as practicable by a woman police officer not below the rank of
sub-inspector. The medical examination of the victim is to be conducted in the
presence of the parent of the child or any other person in whom the child
reposes trust or confidence. In case the victim is a girl child, the medical
examination is to be conducted by a woman doctor. The Act also stipulates
that immediate arrangements have to be made, as needed, for the care and
protection of the child who has been victimized.
The media has been barred from disclosing the identity of the victim
without the permission of the Special
Court.
The attempt to commit a crime, even if not successful, is made liable
to punishment. The Act also provides punishment for abetment of the offence.
Failure to report a known offence is also considered abetment.
In the case of an allegation, the Act places the burden of proof on the
accused. At the same time it also provides punishment for false accusation. The Act considers offences as aggravated when committed by a person
in a position of trust or authority over the child in any way.
The Act has mandated that Central and State
governments give wide publicity to it. An especially appreciative measure
mandated is that training be provided periodically to officers of Central and
State governments on matters related to the implementation of the Act.
Short Comings
On the whole the Act is a fine piece of
legislation in terms of dealing with cases of abuse of children. However, the
Act has totally neglected measures to be taken to prevent abuse. All though the
Bill is meant “to protect children from sexual assault, sexual harassment and
pornography,” there is nothing in the Act that refers to prevention of abuse.
The Act only deals with actions to be taken after the child has suffered sexual
violence. Hence, the Act is a misnomer. Our legislators seem to think that
punishment is a valuable deterrent. It has never been so in history! Just like
capital punishment in itself has not deterred the committing of murder!
Although The Parliamentary Committee
overseeing the Bill, had widely disseminated the Bill (it was also available on
the Net) and invited comments and suggestions on the Bill from various
organisations working with children, and suggestions had been sent, not many of
them were incorporated before the Bill was passed in Parliament. The Act as
passed contains some serious defects.
Definition of
Offence
In the earlier version of the bill anyone
under age 16 was considered a minor. The Act raised the cut off age to 18. In
the course of it, the Act also made any sexual activity, even a consensual one,
with children under 18 or between minors a serious criminal offence, punishable
with imprisonment. This is unfortunate. Not every sexual act between children
below 18 is inappropriate. There is much sexual experimentation among children
that is part of healthy psychosexual development. The American Psychological
Association, the premier association of psychologists in the world, has
stipulated in its definition of sexual abuse that there has to be a difference
of five years between a child and a perpetrator for a sexual act to be
considered abuse. One redeeming feature of
the Act in this context is that if an offence under this Act is committed by a
child, such child is to be dealt with under the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000.
Procedures for
Reporting Cases
Chapter V of the Act that describes is “Procedures
for Reporting of Cases” is the weakest or the most flawed section of the
Act from a psychological and professional perspective.
This section required greater specificity. Any
person who has reason to believe that an offence under this Act is likely
to be committed or knows that such an offence has been committed any time in
the past is obliged to inform the Special Juvenile Police or the local police. Failure
to report is considered a criminal offence punishable by imprisonment.
Using the phrase “Any person” is making the
onus of reporting universally binding, including the victims. Just as in
Chapter II, B where various categories of persons whose action can be
considered as aggravated sexual assault have been specifically mentioned, so
also this section should have specifically listed the categories of persons
mandated to report abuse, and who can be exempted.
In this context, what about “privileged
information” such as gained through lawyer-client exchange, in psychotherapy or
in the Sacrament of Confession (Reconciliation) in the case of catholic priests?
Are these professionals also bound to divulge such privileged information? In the
case of catholic priests who are obliged by their vow to maintain secrecy about
everything heard in the Sacrament of Confession, this requirement becomes a
violation of their sacred commitment to protect the sanctity of the Sacrament.
It gives rise to conflict of conscience.
Even the child who has been abused is
obliged to report the matter. This is not a very child-friendly measure. For a
variety of reasons, including fear of reprisal, a child can refrain from
reporting. I feel the child victim should have been exempt from this
requirement to report. Fortunately the child is exempt from punishment for failure
to report [Section 21(3)].
There is also no punishment stipulated for
children who make false accusations or provide false information. In one sense,
this is child friendly. However, this is also a questionable exemption in the
context of a child being defined by the Act as someone below the age 18. A
malicious adolescent can make a false allegation and face no consequences for
it, ruining in the process the reputation and even careers of innocent people.
The Act does not mention any Statute of
Limitation. Should an act committed 20 or 50 years ago be reported? Some
differentiation should have been made between ongoing or recent abuse and abuse
which happened a long time ago.
An important issue in regard to Reporting
of Abuse that is missing from the Act is the protection of those reporting the
abuse. When a teacher, for example, reports that a student is being abused by a
family member (most abuse happens in the family), he or she may face negative
consequences, including threat to life; the child too may suffer negative
consequences including beatings and further assault etc. Section 19(5) and (6)
provide for the protection and care of the child who has been victimised.
However, no protective measures are offered for the person who reports abuse. Obligation
to report, without providing protection for the one who reports, including
children other than the victim, can be dangerous. We are aware of the dangers
that whistleblowers face these days.
Non-inclusive
Definitions
The wording of the act is such that a male
bias can be read into it. The Definition of Penetrative Sexual Assault in
Chapter II, Section A (3), for example, uses the masculine pronoun “he” to
refer to the offender; this excludes women as offenders. What about women who
engage in digital rape of boys or girls, or insert objects into the anus or
vagina of children? Or, is penetrative sex applicable only to use of the male
organ?
Even though the opening sentence of Section
19 (1) of Chapter V, uses “any person,” referring to those who are to
report known cases of abuse, the pronoun used in the rest of the section is
“he.” Here again we can read a male bias; by using the pronoun “he” the Bill
can be interpreted to exclude women from the responsibility of reporting.
There is an assumption among many people
that sexual abuse is perpetrated only by men; this is not true. Even though
most abusers are men, women also sexually abuse both male and female children.
Even though most victims generally are female, latest available statistics
indicate that there is an increase in the number of boys who are sexually
abused in India;
in some states the number of boys abused outnumbers abused girls.
Better Late Than
Never
The Act was long overdue in the context of
statistics showing that more than 53 percent of children in India experience some form of
sexual exploitation. Until the Act was passed there was no law in India specifically addressing the protection of
children from sexual exploitation, even though such a law was mandated by the United Nations Convention
on the Rights of Children, 1989 which was ratified by India
on 11th December, 1992. The Convention required the State Parties to undertake
all appropriate national, bilateral and multilateral measures to prevent the
inducement or coercion of a child to engage in any unlawful sexual activity. It
took India
20 years to fulfill that mandate. Better late than never!
The approach to the Bill by our lawmakers has also been rather
lackadaisical. It had been drawn up in 2005. But it was introduced in the Rajya
Sabha only on March 23, 2011. The same Bill was introduced in the Lok Sabha
and passed hastily in the Lower House at
the last minute without much of a discussion (the only point raised was
that it could be misused) on the last
day of the budget session of Parliament.
Another point to note: The Act states that
it is applicable to the whole of the country, except Jammu and Kashmir. I am not in the know of
the reasons for this exception. However, don’t the children of Jammu and Kashmir
require protection against sexual assault? In the violent climate existing in
that State, there is the greater likelihood of children being victims of sexual
exploitation. Shouldn’t some provisions be made to prevent this happening?
In Conclusion
Over all, despite its shortcomings, the Act
is highly commendable and one that is long overdue. It clearly defines sexual
assault, sexual harassment and pornography and gives very clear guidelines to
be followed when incidence of abuse comes to be known. Abused children will
have the consolation that their violators as well as those who abet their
victimisation will face due course of the law. Those who care for children also
can have the confidence now that they can avail of legal recourse in cases of
sexual exploitation of children.
Indian Church Response
I understand that the Catholic Bishops Conference
of India (CBCI) has been working on the Church’s policy statement on protection
of minors for quite some time now. It appears this has been an in-house
enterprise and the document was not circulated among a wider group for feedback
and suggestions. There has also been delay, for whatever reasons, in publishing
it. The National Press had reported that it would be published by June 2011. The
website of the CBCI makes no reference to the proposed policy.
It is important that the Church’s policy
statement incorporates and addresses the requirements of the recent Act.
I am curious especially about the Church’s
response to the legislative requirement that any one who comes to know of
sexual abuse, present or past, or likely to happen, no matter what the source
or medium (and this includes sacramental confession), is legally obliged to
report the matter to the police or would be considered as abetting crime.
