Child Sexual Abuse (CSA) is any kind of physical or mental violation of a child with sexual intent, usually by a person who is in a position of trust or power vis-à-vis the child. It is any sexual behaviour directed towards a person under the age of 16 years, without informed consent.
Any child below the age of consent may be deemed to have been sexually abused when a sexually mature person has by design or by neglect of the usual societal or specific responsibilities in respect of the child engaged or permitted engagement of the child in activity of a sexual nature, which is intended to lead to the sexual gratification of the abusive person.
CSA includes an adult exposing his/her genitals to a child or persuading a child to do so ; an adult touching a child’s genitals or making the child touch the adult’s genitals ; an adult involving a child in pornography ; an adult indulging in oral, vaginal or anal intercourse with a child ; or any other sexual gesture or suggestion made by an adult towards a child.
CSA means contacts or interactions between a child and an older or more knowledgeable child or adult (stranger, sibling, parent, or caretaker), when the child is being used as an object of gratification for the older child’s or adult’s needs. Such contacts or interactions are carried out against the child using force, trickery, bribes, threats or pressure. [UNICEF, 2001].
Different forms of CSA:-
- Child labourers and young domestic workers are most often used for the sexual gratification of the employers or other adults.
- Rape within the family.
- Due to increase in HIV/AIDS risk from adult prostitutes, there is an increased demand for younger child prostitutes.
- Sex tourism – Foreign Exchange through sex trade.
- Child marriages.
- Child pornography.
Common findings- truly shocking!:-
- Offender is often known to the child and his/her family.
- A large number of children (40.4%) have been abused/assaulted in the offender’s house. In 35% of the cases, the child was sexually assaulted or abused in public places like urinals, buses, local trains ( as was shown in the Manoj Bajpai starrer movie Shool where a 9-10 year old girl is sexually abused in a crowded Mumbai local train), chawls, and even under lamp-posts.
- Only serious cases are reported to the police.
- More than 50% of the accused arrested are granted bail. Out of 22 accused granted bail, 15 were below the age of 18 years and hence bail was granted through juvenile courts.
- The most vulnerable age is between 3-7 years and then between 11-15 years.
- Men of all ages are abusers. The age of accused lies between 12-62 years.
- About 30.4% of the offenders were aged below 18 years.
- A large number of cases show that the offender was a neighbour of the child/victim. Sometimes the offenders are older children in the community.
- Statements taken by investigating officers often revolve around just 1 episode of CSA and no history is therefore looked into or questioned.
CSA and exploitation:-
- Fondling, touching and kissing.
- Exhibitionism (showing one’s genitals) and voyeurism (seeing somebody’s genitals).
- Oral, anal or vaginal intercourse.
- Photography for sexual purposes.
- Masturbating (using child as a sexual object).
- Sexual intercourse below the age of 16 years amounts to rape, whether it is done with or without her consent. [Sec.375(6)]. This is because consent of a minor is no consent. [Sec.90]. In the case of Harpal Singh vs. State of Himachal Pradesh, AIR 1981 SC 361, It was argued that the prosecutrix was used to sexual intercourse and no injuries were found on her private parts. It was held that it was a case of sexual intercourse with consent. But the Supreme Court held that since the girl was aged below 16 years, the question of consent was totally irrelevant.
- Manipulation and movement of the penis in the hand of a minor boy in such a way that it creates an orifice for making the manipulated movement of insertion and withdrawal up to the point of ejaculation of semen comes under the purview of CSA and is an offence punishable as an unnatural offence. [Sec.377]. This was observed in the case of State of Madras vs. K.Govindan, (1969)Cr LJ 823(ker).
Proposals for reform:-
- Whoever has sexual intercourse with his wife who is aged below 15 years shall be liable to be punished with rigorous imprisonment up to 7 years and fine. [Proposed Sec.376A].
- An illicit intercourse with a girl below the age of 16 years, even with her consent, be made punishable with imprisonment of either description, for a term up to 7 years. [Law Commission of India, 42nd Report: Indian Penal Code].
- Sexual Assault means-
a) Penetrating the vagina (which term shall include the labia majora), the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
b) manipulating any part of the body of another person so as to cause penetration of the vagina, the anus or urethra of the offender by any part of the victim’s body;
c) introducing any part of the penis of a person into the mouth of the victim;
d) engaging in cunnilingus or fellatio;
e) Continuing sexual assault defined above in circumstances… with or without the other person’s consent, where such person is under 16 years of age.
[Proposed Sec.375, Law Commission of India, 172nd Report on Review of Rape Laws, Govt. of India, 2000.]
It is our duty as law students and, most importantly, as guardians of all Indian children that Child Sexual Abuse should be combated as early as possible. This will help India shine bright and develop in a crime free way, as children are the leaders of tomorrow.
Student 3rd Year B.A.- LLB(hons.)
Department of Law, University of Calcutta
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition 2011.]