The Pulse | Society | South Asia

Child Sexual Abuse is Still a ‘Less Serious’ Offense in India

There is a need for sensitization of judges to child rights and child abuse. Courts need to ensure that victims are not re-traumatized.

Child Sexual Abuse is Still a ‘Less Serious’ Offense in India
Credit: Depositphotos

In a shocking ruling this week, the Allahabad High Court described as a “less serious” offence an act of oral sex with a 10-year-old child. The court thereafter reduced the convict’s jail term from 10 years to seven years, since according to the judge, the offence of “putting penis in the mouth” was not a case of “aggravated sexual assault” but of “penetrative sexual assault.”

The judge Anil Kumar Ojha said this when deciding an appeal by a person convicted under the special law, the Protection of Children from Sexual Offences Act, (POCSO). Awareness about the seriousness of the impact of Child Sexual Abuse or CSA on the child, is still lacking in large sections of society, including the judiciary in India.

A stunned parliamentarian Mahua Moitra tweeted: “Wake up High Courts- POCSO meant to save kids from vilest crimes. Don’t dilute it.”

Incidentally this “bizarre” ruling comes close on the heels of another “obnoxious” judgment in a child abuse case by the Bombay High Court in January this year. It was overturned by the Supreme Court last week.

The Bombay High Court had ruled that unless there was “skin to skin contact” of the minor victim and the accused, it could not be classified as a case of “sexual assault” of the minor and went on to release the accused. A lower court had convicted a 39-year-old man for groping the breasts of the 12-year-old girl; however, the Bombay High Court overruled the lower court stating the child’s clothes had not been removed and consequently, there was no physical contact or skin to skin contact; hence, no sexual assault.

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Child rights activists were outraged by the High Court ruling as it “would be setting up a dangerous precedent” for child abuse cases. Enakshi Ganguly, co-founder of HAQ Centre for Child Rights told The Diplomat that “rulings like these show that even judges dealing with POCSO cases lack the sensitivity to understand what constitutes child sexual abuse. Such horrendous judgments can also be ascribed partly to lack of training but more importantly, to lack of understanding as to what impact child abuse has on children.” For some of these judges, “sexual assault still implies the old definition of rape as penetrative assault; anything else isn’t [considered by them as] sexual assault,” she said.

After the Attorney General of India K.K. Venugopal moved the case to the Supreme Court, the apex court first stayed the Bombay High Court ruling. In its final order last week, the Supreme Court not only overturned the controversial judgment but also clarified that “the most important ingredient for constituting the offence of sexual assault” is the “sexual intent” and not the “skin to skin contact” with the child.

The three-judge bench of Justice U.U. Lalit, S. Ravindra Bhat and Bela Trivedi noted that “the POCSO Act was enacted to protect children from sexual abuse” – from offences of sexual assault, sexual harassment and pornography. Narrow interpretations of physical contact would lead to “detrimental situations” and would defeat the very intention of the law. Coming down heavily on the High Court, Justice Ravindra Bhat said that “…the reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

It would be imperative to point out that child abuse and more so, child sexual abuse is a taboo topic in India, even today. Child abuse is still largely unacknowledged in homes however affluent. The child victim’s version is still not taken seriously.

Although more victims are reporting cases of CSA, there are many that still go unreported. A 2007 study conducted by the government’s Ministry of Women and Child Development found that as many as 50 percent of children in India had faced abuse of some kind. What was even more alarming, and has consistently been highlighted by successive studies, is that in as much as 95 percent of the cases, the abusers are known to the victim.

Because many abusers are known to their victims, the chances of hushing-up case of abuse are greater. The majority of CSA occurs within the home or a place considered safe for the child – the school, an institution, a relative’s home or their neighborhood. It is not surprising then that there was a spurt in CSA cases during the pandemic lockdown.

What child rights activists are also highlighting is the larger issue of how extremely stringent punishments for offences purportedly to protect children from abuse, become counterproductive when implementing the POCSO law.

“Since the minimum punishment for some offences is a 20-year imprisonment, which can extend to the death penalty,” there have been instances of victims, even those who want justice, who do “not want to punish the offender with a jail sentence of minimum 20 years, which could even extend to death penalty” because they know the victim. “So often the family prevails upon the victim to turn hostile,” says Ganguly.

Significantly, several of the changes in the POCSO law, which includes harsher sentencing for offences including introduction of the death penalty occurred in 2019, as a result of public outrage after specific incidents like the brutal gang rape and murder of an 8-year-old girl in Kathua in Jammu and Kashmir.

Experts are of the opinion that such knee-jerk reactions to assuage an angry public, does not help victims of CSA. Harsher penalties for offences do not act as a deterrent for crimes; rather what is needed is water-tight evidence gathering.

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“More often than not, if there is an iota of doubt, in such offences where the accused could face a harsh sentence, the judge is likely to impose a reduced punishment,” says Ganguly.

What therefore is needed is a more nuanced approach to combating child sexual abuse and the POCSO law needs to recognize the ground reality in the country. As it is, CSA cases are hampered by low conviction rates and enormous challenges in securing justice for the child victim.

Highlighting this aspect at a child rights seminar on POCSO, a former judge of the Supreme Court, Justice Madan B. Lokur stressed the need for “greater sensitisation of judges” to child rights and child abuse. Expressing concern over the long-drawn trials in CSA cases, Justice Lokur said that judges need to ensure that a child victim of sexual abuse, who has already gone through a traumatizing experience, should not be made to live through the trauma again and again.