Sexual Victimization of Children in India-Emerging

Trends and Legal Response

Dr. Dipa Dube

Associate Professor

Rajiv Gandhi School of Intellectual Property Law

IIT Kharagpur

India

Death penalty for rape of minors: President approves ordinance TNN | Apr 23, 2018, 04.05 AM IST

India Rape Crisis: 4 in 10 Victims Were Minors, Conviction Rate Below 30%4 in 10 female rape victims were minors; 1 in 10 female minor victims was below the age of 12, according to 2016 crime data.

Offence 2016 2015 2014 2013 2012 2011

Crimes against Children

1,06,958 94,172 89,423 58,224 38,172 33,098

Crime in India Statistics

Sl. No.

Crime Head 2016 2015 2014

1 Sexual Offences ( POCSO)

36022 14913 8904

2 Rape 19765 10854 13766

3 Sexual Assault 12226 8390 11335

4 Sexual Harassment 934 3350 4593

5 Pornography 47 NA NA

6 Trafficking (IPC & ITPA) 396 (340 & 56)

279 (221 & 58)

86 (ITPA)

7 Selling of minors for prostitution

122 111 82

0

5000

10000

15000

20000

25000

2011.5 2012 2012.5 2013 2013.5 2014 2014.5 2015 2015.5 2016 2016.5

Number of Incidents

Child Rapes

0

5000

10000

15000

20000

25000

30000

35000

40000

2014 2015 2016

No. of Incidents

Cases registered under POCSO

TRENDS

Institutional Abuse

• Homes for Children, orphanages

• Schools

Prevailing Culture • Intolerance• Misogynist Attitudes• Culture of Impunity• Political

Interference/Participation/Inaction

Abuse by Known Persons• Neighbours, friends,

Co-workers• Relatives, Close

family members

95% of cases

Concern for Child Victims

• Millions of children throughout the world suffer harm as a result of crimeand abuse of power, and come into contact with the criminal justicesystem.

• When children are victimized, their normal physiological and psychologicaladjustment to life is disrupted. Furthermore, they must cope with thetrauma of their victimization again and again in each succeedingdevelopmental stage of life after the crime.

• Child victims suffer not only physical and emotional traumas from their victimization. When their victimization is reported, children are forced to enter the stressful “adult” world of the criminal justice system.

• The vulnerabilities of children in criminal justice processes, due to their ageand still developing levels of maturity, require that special measures betaken to ensure their rights are adequately protected.

Legal Framework

• Indian Penal Code, 1860

• Code of Criminal Procedure, 1973

• Protection of Children from Sexual Offences Act, 2012

Penal Code• General offences applicable to all including children- Rape, Sexual

Harassment, Outraging of Modesty, Insult to Modesty etc.

• Special Provisions

• Section 375 IPC- Clause 6thly – ‘With or without her consent, when she is under eighteen years of age’

• Section 376 IPC- Aggravated rape- ‘i. commits rape on a woman when she is under sixteen years of age’

Position – Criminal Procedure

Attendance( S. 160)

• Not in police station

• Only in residence

Completion of Investigation(S. 173

(1A)

• Child Rape- Within 3 months (mandatory)

Recording of Statement in Court(S.

273)

• Victim not confronted by accused

Proceedings(S. 309)

• Day to Day proceedings

• In rape, trial shall be completed within 2 mths

In camera Trial(S. 327)

• Privacy maintained in specific proceedings

• Presence of Person, if reqd.

• No reporting of matter

POCSO Act 2012

• A comprehensive law to provide for the protection of children fromoffences of sexual assault, sexual harassment and pornography, whilesafeguarding the interests of the child at every stage of the judicialprocess by incorporating child- friendly mechanisms for reporting,recording of evidence, investigation and speedy trial of offencesthrough designated courts.

• The Act came into force with effect from 14th November 2012.

Offences

Sexual Assault

Penetrative

AggravatedNon

Aggravated

Non Penetrative

AggravatedNon

Aggravated

Sexual Harassment

Pornography

Towards better Child Protection

Child Protection

Mandatory Reporting

SPU & SC

Coordinated Services- CWC,

Medical, Shelter and Safety

Recording at Residence/Shelter

Confidentiality

Assistance of expert services-

translators, educators,

psychologists etc.

In-camera trial with aid of trusted

person

No exposure to accused

Recording through Video Link

Controlled Trial Process

Compensation

Other Distinctive Features

• Presumption of culpable mental state of the accused; Section 30, POCSO, 2012.

• Punishment for false complaints, except in case of children being the complainants. Section 22, POCSO, 2012.

• Punishment for non-reporting of cases of CSA. Section 21, POCSO, 2012.

• Assistance of experts of diverse fields of knowledge and affiliation to be associated at pre-trial and trial stage. Section 38, 39 POCSO, 2012.

• Maintenance of utmost confidentiality with regard to the identity of the child. Section 23, POCSO, 2012.

Criminal Law (Amendment) Ordinance, 2018

• 376: Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life

• Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, or with death; Also, applies in case of gang rape of child.

What we really need

Not capital sentence but effective implementation of existing laws

Proper support system for children -Child Advocacy Centres

Sensitization & training of stakeholders towards child friendly procedures

Child Protection Policies in Schools and other organizations

CAC• Child-focused centres that provide a coordinated approach to

investigation, intervention, treatment and prosecution, in child sexual abuse cases. They adopt a seamless and collaborative approach to address the needs of child victims or witnesses of abuse to minimize system-induced trauma by providing a child-friendly setting for young victims and their families.

• Provides a multidisciplinary team of police, child protection, medical services, mental health services, victim services, and prosecutors in a child-friendly environment. Professional services offered by CACs include coordinated forensic interviews; examination of the child by a medical professional; victim advocacy, including court preparation and support; trauma assessment; and counselling