SEXUAL CRIME AGAINST CHILD IN INDIA

SCHOOL OF LAW

MANIPAL UNIVERSITY JAIPUR

CHILD AND LAW

IN PARTIAL FULFILLMENT OF THE REQUIREMENT PRESCRIBED

FOR BA. LL.B (HONS.) 6TH SEM

UNDER SUPERVISION OF- SUBMITTED BY-

Mr. Mona Mohecha Sourav Kumar (VI Semester)

Assistant Professor Reg No. - 151301082
B.A. LL.B (Hons)
 CERTIFICATE

This is to certify that Mr. Sourav Kumar student of B.A. LL.B (Hons.) sixth semester school of
Law Manipal University Jaipur has completed the project work entitled “Sexual Crime against
child in India” under my supervision and guidance.

It is further certifying that the candidate has made sincere efforts for the completion of the
project work.

Supervisor Name
Ms. Mona Mahecha
Assistant Professor
 ACKNOWLEDGEMENT

This is not just a customary acknowledgement of help that I received but a sincere expression of
gratitude to all those who have helped me complete this project and made it seem apparently
more readable than otherwise it would have been.

I am in debt to my faculty advisor Ms. Mona Mahecha for giving such an interesting and
amazing topic “Rights of child under UN conventions and Indian constitution: A detailed study”
and making it seem easy by lucidly explaining its various aspects. I would like to thank him for
guiding me in doing all sorts of researches, suggestions and having discussions regarding my
project topic by devoting his precious time.
I thank department for providing Library, Computer and Internet facilities. And lastly I
thank my friends and all those persons who have given valuable suggestions pertaining to the
topic and have been a constant source of help and support.

Thanking everyone,

Sourav Kumar
 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5
WHO IS A ‘CHILD’? .................................................................................... Error! Bookmark not defined.
RIGHTS UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD ........... Error! Bookmark not
defined.
CRC AND INDIA...................................................................................... Error! Bookmark not defined.
CONSTITUTIONAL PROVISIONS REGARDING RIGHTS OF CHILDREN ........ Error! Bookmark not
defined.
WEBLIOGRPAHY..................................................................................................................................... 17
BIBLIOGRAPHY ....................................................................................................................................... 17
 INTRODUCTION

Crime is not an offence against an individual only but against the society as a whole. In the
present social context, children are more vulnerable to crime and it’s mandatory that the State
should protect the life and liberty of its citizen especially the marginalized and weaker sections.
But the proved ineffectiveness on the part of the State to curb the violence against children
erodes the confidence in the rule of law. The neglect and indifference toward them during the
investigation and subsequent prosecution help the offenders bypass penal provisions of law. The
increasing rate of acquittal in offences against children shows that judicial responses towards
child victims are not sympathetic. The provisions of the law relating to sexual assault against
adult women, also apply to cases of child abuse. The legal definition of rape excludes several
other forms of sexual assault and abuse that can injure the bodies and minds of children. The
weakest among those who are marginalized and bearing the brunt of the onslaught on the poor
are children, and especially female. “Sexual Offences” relating to rape and unnatural offences
constitute an altogether different kind of crime, which is the result of a perverse mind. The
perversity may result in rape or in homosexuality. Those who commit such crimes are
psychologically sadistic person exhibiting that tendency in rape forcibly committed by them 1.An
attempt has been made to examine statutory provisions, and critically evaluate Courts attitude
towards such crimes. Female Children face all forms of sexual assault in India and offences
against female child have reached an epidemic proportion. The number of child rape cases
registered is indicative of sexual assault against the female child. A total of 48,338 child rape
cases were recorded from 2001 to 2011. These include 2,113 cases in 2001 and 7,112 cases
during 2011. The cases of child rape have been consistently increasing and India saw an
increasing of 336% of child rape cases from 2001 (2,113 cases) to 2011 (7,112 cases). These are
just the tip of the iceberg as the large majority of the cases of child rape are not reported to the
police while female children regularly become victims of other forms of sexual assault too.
Indian Children, who account for a staggering 42% of the country’s population, have long been
the victims of some of the most brutal sexual crimes known to humanity. The lackadaisical
attitude of the Union Legislature, the apathy of its law enforcement agencies and the conspicuous
absence of any specialized legal framework to deal with cases of child sexual abuse have only

1
T.K. Gopal v. State of Karnatka (2000) SC 706
played the role of transforming this bitter truth into a perennial reality that seems to have been
passively solidified and strengthened by decades of State inaction, With the growing precedence
of child trafficking, sex tourism, the devadasi system, prostitution, child pornography, incest and
child rape, one is left horrified at the prospect that there is not a single legislation that
specifically deals with the issue of child sexual abuse. A majority of sexual offences committed
against female child are not even reported, let alone prosecuted. If any individual is brought to
trial, conviction is unlikely as cases are very difficult to prove. Moreover, sexual abuse cases are
usually tried in criminal Courts where defense Counsel tactics include postponements or
adjournments and cross-examination techniques are designed to confuse and discredit the female
child. As a result, offences of such type go unreported and even if they are reported the lengthy
and cumbersome Court procedures give enough time to the offender to pressurize the female
child to retract the statement.

SEXUAL OFFENCES AGAINST CHILD

Sexual Abuse:- Sexual abuse is defined as the involvement of a child in sexual activity that he
or she does not fully comprehend, is unable to give informed consent to, for which the child is
not prepared, or else that violates the law or social taboos of society. Actual sexual intercourse
may not be very common but other forms of abuse like incest, sodomy, caressing, exhibitionism,
masturbation and voyeurism occur with disturbing frequency. Unlike as in adults, in children the
use of force is not an essential part of the abuse. Since children are incapable of understanding
the implications of the act, their willingness has no meaning whatsoever. In fact most instances
of abuse would be where she is not even aware of being abused and treats it as play. Countless
are the instances, wherein elderly relative makes sexual advances on unsuspecting children
especially girls. Many such instances are not even recognized for what they are, let alone
reported. Male and female servants, in whose care small children are left are the most common
offenders adolescent boys playing with younger girls even in socially sanctioned play can
indulge in such acts

Sexual Assault: - Sexual assault is the commonest of all forms of abuse. In our acquisitorial
jurisdiction, courts tend to be liberal to the accused on the grounds of ‘benefits of doubt’, or
rather, that the extent of proof is not beyond reasonable doubt, and flimsy excuses like injury not
on a particular part, relationship with the victim etc,. are used as grounds for acquittal even if
there is enough medical evidence corroborating the occurrence of sexual.assault. The cardinal
principle of criminal jurisprudence is that the offence should be proved ‘beyond reasonable
doubt’. It is a settled principle of law, that where as per the evidence produced, two possibilities
can be deduced, one which goes in favour of the prosecution and other which benefits the
accused, the accused is entitled to the benefits of the doubt. The liberal application of this
fundamental and basic principle of law and the severe handicaps suffered by victims of rape have
unfortunately, led to the acquittal of many a culprit.

Rape: - The rape laws as they apply to female-children are severely deficient in many respects.
As regards the male-child, the IPC does not regard their sexual abuse as ‘rape’ Sexual offences
against boys are clubbed under the provision of ‘unnatural offences’. The precise and
unmistakable areas of concern and the challenges facing the criminal law needs detailed analysis.
No specific provision dealing with child rape: In matter of sexual offences, children are treated at
par with adults. Sexual abuse of child has not been recognized as a separate category of crime.
The provisions of the laws relating to sexual assault against adult women also apply to cases of
sexual abuse of child. There is neither any specific chapter nor any specific provisions in the IPC
dealing with child rape or other forms of sexual violation against children. The definition of rape
under Section 375 of IPC, applies equally to an adult woman and a girl-child/minor.

Rape of Female Children under the age of 18 years.

Proof of the rape victim is crucial since the ‘consent’ of the victim is immaterial in cases where
she is below 18 years of age. The burden of proving the age is squarely placed on the
prosecution. If the prosecution fails to prove that the girl was below 18 years, it would have the
additional burden of proving that the girl did not consent to the sexual intercourse. The difficulty
is further heightened by the judicial pronouncements that ossification tests carry a margin of
error of two years and the benefits of doubt is to be given to the accused. As a result, unless the
girl is clearly below 14, no conviction can take place without irrefutable proof of absence of
consent. This results in grave injustice to teenage girls bordering on the age of majority.
Therefore, while considering the question as to whether the victim is technically a minor or
major, the fate of the victim in trials is wholly dependent upon the judge’s impressionistic
observations and conscience.

PEDOPHILIA

It is derived from the Greek Word meaning ‘Child’, ‘Friendship’, ‘Friendly-Love.’ It is a

psychiatric disorder in which an adolescent (who are older) or an adult, experiences sexual
attraction towards the prepubescent children. Generally, the puberty of Girls starts at 10 or 11
and of Boys at the age 11 or 12. The person should be at least 16 years old, if he/she is suffering
from Pedophilia, and the person should be at least 5 years older than a prepubescent child.

In the 19th Century, the word Pedophilia was named. Since the 1980s, Research work has taken
place in this particular area. Mostly, the Men are diagnosed with this disorder but there are some
Women also who exhibit this disorder. Till now, no cure for Pedophilia is developed, but some
of the therapies are there that are very helpful, it minimizes the incidence of the man committing
sexual abuse. The exact or actual causes of this disorder have not been established yet. The
studies of this disorder, have said that in Child Sex Offenders there is the correlation with
psychological pathologies and neurological abnormalities.

Referring to the case of U.S:

Kansas vs. Hendricks, the Sex Offenders who are found with Pedophilia, can result in the infinite
civil commitment.
The reasons for Pedophilia in Sex Offenders are due to Psychopathologies like Depression,
Personality Problems, and Low Self-Esteem. The cause of Pedophilia is yet not known, but some
researchers found the linking of Pedophilia with the structure of the brain and its function. At
Birth, one or more characteristics of neurological are present which cause or increase the
Pedophilia. The Research also found that Pedophiles are less subjectively impaired than non-
pedophilic child sex offenders.
The study of 2011 also said that Pedophilic Child Sex Offenders has in response inhibition
deficits, but memory or some cognitive flexibility is absolutely fine, it has no deficits. It is also
not proved that genetic transmit is responsible for Pedophilia. Even, the 2015 study found that
the IQ of Pedophilic is normal like other people.

The Pedophilic who are sexually attracted, the attraction can be “Exclusive” or Non-Exclusive.”
Exclusive Pedophiles are referred as True Pedophiles. They are sexually aroused by only and
only prepubescent children and not by the fantasizing adult. And, the Non-Exclusive Pedophiles
or Non-Pedophilic is sexually attracted while fantasizing both children and adults. If the
preference for Sexual attraction is for prepubescent children then they are Exclusive Offenders.

Some of the other definitions which involve sexual attraction towards youths and children are:

 Boy Lovers: They are the Pedophiles who are attracted to Young Boys.
 Girl Lovers: They are the Pedophiles who are attracted to Young Girls.
 Chronophilia: It is the umbrella term which covers the feelings of youth to children,
including hebephilia, paedophilia, and ephebophilia.
 Ephebophilia: This term is usually for the adult male who is attracted sexually to the
teens of 15 to 19 years of age.
 Hebephilia: This is also for the adult male who is attracted to pubescent teens of 11 to 14
years of age.
 Infantophilia: This is a rare form, in which the interest is a small kid of 2 years or
younger.
 Lolita Syndrome: This term is the man who is sexually attracted to a girl who is
pubescent.
 Pederasty: This term is for an adult who is attracted to 14 to 17 years teen.
 Teleiophilia: The term is for an adult mainly attracted to adults only.

VOYEURISM

It is the practice or sexual interest of spying or peeping on people who are engaged in Private or
Sexual Activities, or in some intimate behaviour like getting physical, undressing, masturbation,
or other sorts of private activities.
The Voyeur is not directly interacting to his/her interest, the other person is unaware of spying.
Observing is not only the essence of Voyeurism but also taking the secret photograph or making
the video when the subject is doing his/her private activities.
The term Voir is a French word, the meaning of this is “to see.” The Male Voyeur is often called
as ‘Peeping Tom,’ which is originated from Lady Godiva legend. This term is applied when the
male is observing someone secretly and, not in an open or public place.
The Association of American Psychiatric has classified Voyeurism as the Paraphilia in DSM-IV.
The DSM-IV defines it as observing the strangers, who are naked, or in the process of
undressing, or engaged in the private or sexual activity. This diagnosis is not given to the person
who experiences the sexual arousal, by simply seeing sexual activity or nudity. If to diagnose the
Voyeuristic disorder then the symptoms must present for 6 months and the age must be over 18
years.

 Prevalence:
Initially, it was believed that it is only present on the small portion of the population. According
to the Research, around 65% men are engaged in peeping activities. Research also found that
Voyeurism is one of the common law-behaviour sexual behaviours. The study said that 54% of
men have voyeuristic pipe dream and 42% have check out or tried Voyeurism. Recent Study
shows that Voyeurs are generally men, and they have the higher level of sexual interest. They
have the greater number of sex-partner than the general populations.

 Legal Status:
In common Law, Voyeurism is not the crime. Like, in Canada, it is not a crime, but when Frey
vs. Fedoruk case arose, then it was declared as a sexual offence.

In the UK, R V. Turner (2002) Case: The Sports Centre Manager made a video of four women
taking shower. But there was no evidence on that the video was distributed or shown to anyone.
The defendant was sentenced nine months imprisonment. This was done for the justice of people
who had suffered from this and went through the traumatic effect because of this.
The Indian Parliament made an amendment in 2013 to the IPC, declaring Voyeurism as a
Criminal Offence. A person committing this offence would be liable for not less than 1-year
imprisonment and up to 3 years with a fine and for the successive conviction, he would be liable
for not less than a year imprisonment and up to 7 years with a fine.

. Professional Treatment:
In the variety of ways, Voyeurism has been treated. Psychoanalytic, Shock Aversion, and Group
Psychotherapy are some of the approaches which have been attempted but have got very less
success.

There is some proof that says that, showing pornography can be used as treatment. The countries
where pornography is banned, their high amount of this disorder is present. Showing
Pornography helps voyeurs to shift into voyeuristic behaviour. The studies show that,
pornography will fulfil the desire of voyeuristic that too without breaking the law.

CHILD PORNOGRAPHY

It refers to the visual depictions (like the photograph, computer or digital generated pictures) of
the child which explicit sexual activities. The content of Child Pornography very closely related
to Adult Pornography. It is one of the horrific and violent forms of abuse. Mostly the child
victims are abused by the people they know. The people are those whom the child has trusted.
The images and videos of the child are released or distributed or published in order to increase
the number of views. These videos and images involve an actual crime scene documentation
which is distributed for the personal consumption. Recently, live-videos are streamed for which a
person has to pay for watching.

In the year 2002, NCMEC (National Centre for Missing and Exploited Children) started the
program CVIP (Child Victim Identification Program). The aim of the Program is to identify the
same child from the multiple images. According to the statistics, the images which are submitted
to NCMEC have 76% of Penetration image and 44% of Sadomasochism or Bondage image.
According to the data of 2013, for around 25% of images or videos are produced by known
people like friends or family, 18% by the guardian or parents, 14% are the self-produced ones.
No or less evidence is left behind so this digital crime is difficult to detect.

LAWS RELATED TO CHILD SEXUAL ABUSE IN INDIA

India is the second most populous country in the world and is a home for 430 million children
which means 42% of the total population in India. Out of the entire population of children, 50%
of the population is under care and protection i.e. the protection from child sexual abuse. Child
sexual abuse includes rape, sexual harassment, etc. is a problem which has become a growing
concern in India. It is a fact that millions of boys and girls are sexually abused within and outside
their homes by relatives or by known persons. In India, children are expected to obey and respect
others without questioning their actions. The impact of child sexual abuse is worse in India than
in any other country of the world.

Child sexual abuse in domestic sphere

Child Sexual Abuse (CSA) is a mental or physical violation of a child with sexual intent,
generally by a person who is in the position of power and trust of a child. Apart from the
definition, sexual abuse also includes:

Firstly, an adult revealing his/her genital organs to the child and influencing the child to do the
same for them i.e. exhibitionism.

Secondly, an adult touches the child’s genital organ with hands or with other objects and
persuading the child to touch their genitalia i.e. touching and fondling of a child.

Thirdly, an adult having anal, oral and vaginal intercourse with a child with or without
penetration i.e. assault which includes rape and sodomy.
Fourthly, an adult is persuading or encouraging a child to hear, read or view any pornographic
material.

Fifthly, an adult forcing a child to indulge in any sexual activity.

Sixthly, an adult marrying a minor, or minor marrying another minor is considered to be a forced
relation.

Children are not only the victims of child sexual abuse but are also traumatized by the law
because they are unaware of the act itself. Due to the trauma which children are suffering, their
future gets jeopardized.

There are very few cases of child sexual abuse which are reported. Other victims do not even
share their plight with their parents. The worst part is the feeling of silence and shame which
characterizes the cases of sexual abuse amongst children. To overcome the detrimental effects of
child sexual abuse, youth must be protected from this harm. It is imperative to capture the
perpetrators of the sexual assault against Indian children. The increasing menace of child sexual
abuse is not just limited to domestic spheres but extended to places which aim at protecting the
interests of the child such as Juvenile Justice Homes.

Child Abuse in Juvenile Justice Homes

The main aim of the juvenile justice act is “to consolidate and amend the law relating to
juveniles in conflict with law and children in need of care and protection, by providing for
proper care, protection and treatment by catering to their development needs, and by providing
a child-friendly approach in adjudication and disposition of the matters in the best interest of
children and for their ultimate rehabilitation through various institutions established under this
enactment.” In spite of the aim and objective of the Juvenile Justice Act, its implementation has
resulted in child sexual abuse in many states. Many of the rape cases have been taken place in
juvenile justice homes i.e. with special families, observation homes, or shelter homes, etc. The
girls remain at high risk of assault and abuse even in the protection home. There are many cases
in which the perpetrator are staff members including caretakers, security guards, etc. In most of
the cases, the sexual assault continues for a longer period as victims are not ready to dissent and
endure quietly in the absence of inspection. The cases like two minor girls are assaulted by the
manager of Baba Deep Jyoti Anath Ashram in Odisha, or boys sodomised by guards and senior
inmates at govt. run Ashiana home for boys, Delhi or Arya Orphanage Case, Delhi, related to
sexual abuse of a child in Juvenile Justice Homes.

To overcome the growing menace of sex crimes against children in India, there are legal
frameworks of rights and guarantees enacted in the support of children. These include a vast
array of legal enactments ranging from Constitution from one point view to the Indian Penal
Code and other statutory provisions like Protection of Children from Sexual Offences Act
(POSCO) on the other.

Legal provisions related to child sexual abuse

Until 2012, there was no appropriate legal framework in India which deals with child sexual
abuse. Earlier sex crimes against children were protected by section 354, 375, 377,509 of Indian
Penal Code, 1860. Section 354 deals with “Assault or criminal force to woman with intent to
outrage her modesty,” Section 374 deals with rape, Section 509 states any person who intends to
insult the modesty of a woman through word, gesture or act and Section 377 of the IPC deals
with unnatural offence

The pornography was dealt with Young Persons (Harmful Publication) Act, 1956. In the year
2012, the Parliament of India has passed the Protection of Children against Sexual Offences Act
(POSCO) for the victims of child sexual abuse below 18 years of age.

Salient features of POSCO Act

Firstly, POSCO Act is gender neutral. The consent of the child is immaterial under this act.

Secondly, this law mandates the reporting and recording of sexual abuse against a child. Section
19(1) of the POSCO Act makes it compulsory to report the offence.
Thirdly, this act lists the sexual crimes committed against a child. Section 3 of the POSCO Act
states: “A person is said to commit “penetrative sexual assault” if (a) “he penetrates his penis,
to any extent, into the vagina, mouth, urethra, or anus of a child or makes the child to do so with
him or any other person”; Since the words “any other person” are used in Section 3(a), women
may also be offenders or victims under the second part of Section 3(a)”.

Fourthly, it also provides protection to minors during the judicial process.

Fifthly, “Section 5(j): “Whoever commits penetrative sexual assault on a child, which in the case
of female child, makes the child pregnant as a consequence of sexual assault.” However, even in
these offences, women can be joined as abettors under Section 16, POCSO Act”.

Provisions of POSCO

1) As soon as the matter is reported to the police officer, within 24 hours, the case should be
presented before the Child Welfare Committee.

2) The statement of the minor should be recorded in his or her home or his or her favorite place
only by a female police officer.

3) This act also provides a speedy trial and in camera proceedings to ensure confidentiality.

4) The minor should not be called in the court repeatedly. He or she may be testified through
video from home.

5) The medical examination must be conducted by a female doctor, in the presence of a person
whom minor trusted. Consent of the parents or guardians if present, otherwise the consent of
medical professional on the behalf of a minor is required.

6) The defense should route all the question through the judge and cannot ask any aggressive or
character assassination questions to the juvenile.

7) The minor should not be exposed to accused in any way during the recording of evidence.
Punishment enumerated under POSCO

1. For penetrative sexual assault, the sentence not less than seven years extended up to
life imprisonment along with fine under section 4 of the POSCO Act.
2. Aggravated sexual assault committed by a person of trust or authority like police
officer under section 6 would be punished with not less than ten years and extended
up to rigorous life incarceration and fine.
3. For the non-penetrative sexual assault committed by a person with sexual intent must
be punished with not less than three years and extended up to 5 years of imprisonment
under section 10 of the POSCO Act.
4. Under section 10, if the aggravated sexual assault is done by the authority or by the
person of trust, it would be punished with not less than five years and extended up to
seven years of incarceration.
5. For sexual harassment under section 12 of the POSCO Act, prescribes a punishment
of 3 years along with fine.

“As per section 42 of the POCSO Act, where an act or omission constitutes an offence
punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A,
375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then
notwithstanding anything contained in any law for the time being in force, the offender found
guilty of such offence shall be liable to punishment under this Act or under the Indian Penal
Code as provides for punishment which is greater in degree.

CONCLUSION

Sexual abuse of a child is veiled in secrecy. It is essential for parents and guardians of the child
to get sensitized and understand the degree of the problem. It is also crucial for the parents to
create a protective environment for the child and to guide their children how to protect
themselves from sexual abuse.
 WEBLIOGRPAHY

 https://blog.ipleaders.in/child-rights-in-india/ (Last Visited: Mar. 7, 2018).

 http://haqcrc.org/child-rights/constitution-of-india/ (Last Visited : Mar. 2, 2018)
 http://shodhganga.inflibnet.ac.in/bitstream/10603/37610/10/10_chapter%204.pdf (Last
Visited: Mar. 03, 2011)

BIBLIOGRAPHY

 Batuk Lal, Child and Law, (19th ED. : 2010) (Central Law Agency Allahabad)
 Ratanlal and Dhirajlal, The Indian Constitution, (19th ED. : 2010) (Central Law Agency,
Allahabad)