25 Jul 2011

Child Sexual Abuse and Law

By Dr. Asha Bajpai *

It is a fact that millions of girls and boys worldwide are being sexually abused within homes and outside. They are abused by families and known persons. The perpetrator can be anyone who exploits the child’s vulnerability to gain sexual gratification. It involves mental, physical and emotional abuse of a child through overt and covert sexual acts, gestures and disposition – when informed consent or resistance by the child victim to such acts is not possible. It can also include activities which do not involve direct touching. 

A form of child sexual abuse in India are child marriages. In Rajasthan on Akshya Tritiya day which is popularly known as the Akha Teej, hundreds of child marriages are openly performed. The sexual abuse of children not only has damaging and long-term impact on the victim, but also affects the families, communities, and society at large. Like any crime that continues to go unchecked, the sexual abuse of children- both within our homes and outside is an issue of grave concern and directly suggests the health of a society as a whole.

Laws Relating to Child Sexual Abuse

There is, at present, neither a comprehensive law nor a policy to deal with child sexual abuse in India. Legal intervention is presently in the form of investigations which start with registration of offences under the Juvenile Justice (Care & Protection of Children) Act, 2000 or the Indian Penal Code The Indian Penal Code generally deals with the sexual abuse of children in the following sections:

  • Section 375 that defines rape
  • Section 376 of the Indian Panel Code provides for the punishment of rape which shall not be less than seven years but which may extend to ten years, unless the women raped is his own wife and is not under twelve years of age in which case, he shall be punished with imprisonment for a term which may extend to two years or with fine or both. When the girl is under 12 or where the rapist is a person in authority (in a hospital, children‟s home, a police station etc.), the punishment is greater.
  • The other IPC provisions that are invoked is relating to unnatural practices is Section 377 This is generally invoked when boy children are sexually abused. Although forcible sex with a boy is an act of rape, the rape law of the country under IPC does not cover it
  • Outraging the Modesty of a woman or a girl is dealt with in Section 354
  • For insulting the modesty of woman is in Section 509
  • Obscenity and pornography are dealt under the Young Persons (Harmful Publications) Act , 1956. .A young person means a person under the age of 20 years. It is an offence to sell, let, hire, distribute or publicly exhibit harmful publications.
  • Under Section 67 of the Information Technology Act, 2000, publication and transmission of pornography through the internet is an offence.

Inadequacies in Laws

The ordinary criminal laws are totally inadequate to protect the children, who are victims of sexual abuse These sections do not include the common forms of child sexual abuse nor their impact on the children. The restrictive interpretation of "penetration‟ in the Explanation to Section 375 is an obstacle to cases of CSA. Explanation to Section 375 does not treat forced sexual intercourse by a husband against the wife (above 15 years) as an offence. Section 376(A) also has the same reasoning. The Indian Penal Code needs to be reviewed. 

The existing definitions of rape and molestation should be suitably amended to adequately address the various types of sexual assault on children. In fact, sexual assault on children should be made a specific offence requiring stringent punishment. There is no provision to deal with the trauma of the child. The testimony of the child victim is not recorded sensitively by the police/judge/prosecutor magistrate. The recording of the statements of child victims need a special provision in the CrPC. There is no such provision at present. 

Trained personnel should interview the victim children. The language of the child is to be understood by the legal system. Under the present system the natural habitat of the victim is generally disturbed, which is a source of trauma to the child. The delays in the system at every stage further add to the trauma of the child victim. There are several cases pending in the courts as the trial goes on for years. In several cases the girls have become adults by the time the final judgment comes through. The investigation of trial of sexual offences have to be made time bound. Special courts need to be set up. There is a need for a special provision relating to medical examination of child victim in the CrPC. The absence of a proper medical report in the case of a sexual assault goes against the child assaulted the mental health of victim needs to be attended to, as the trauma has to be reduced. 


It is experienced that limiting the exposure of the child to the courtroom and providing therapy for traumatized children produces more complete testimony. Such protective provisions for victims of child sexual abuse are possible under Article 15(3) of the Constitution of India, which guarantees special protection to children.

With the growing number of cases on child abuse, there is an urgent need for the law reform. Judges, lawyers, law makers, child care social workers, the police, doctors, mental health professionals, teachers and parents need awareness, sensitization and training to handle these cases. NGOs, child rights activists and the media must vigorously advocate the law reforms along with creating public awareness and sensitivity, as law is an instrument of social change capable of bringing about change along with other social institutions and organizations.

*-  Dr Asha Bajpai is a Professor at the Tata Institute of Social Sciences, Deonar, Mumbai. She is affiliated with the Centre for Socio-Legal Studies & Human Rights. She has completed her L.L.M., M.Phil and Ph.D. from National Law School of India University, Bangalore.

18 Jul 2011

Children in 12th Five Year Plan (2012-2017): Nine Big ticket Recommendations

CHILDLINE India Foundation

Mumbai: The Consultations for 12th Five year Plan, which commences April 2012, have commenced.The 11th Plan marked the very first plan which earmarked Child Protection as its mandate. The Integrated Child Protection Scheme (ICPS) of the Ministry of Women and Child Development was approved in the 11th Plan but only commenced in the 3rd year of the Plan period. The 12th Plan , therefore, has to see the ICPS effectively rolled out and implemented. In order to ensure a significant impact is achieved on the development of children during the 12th Plan, CIF is making the following big-ticket recommendations for the 12th Plan.

1. Budgets for children: Despite of the 11th plan specifically commenting on inadequate budgets and the UPA making a manifesto commitment towards 9% share of Union budgets for children, the allocation is 4.5% of Union Budgets. It is imperative that the 12th Plan correct this and ensure that on a uniform basis, budgets for children account for 10% of Union Budgets. Children under 18 constitute over 43% of India's population. Our estimates are that 40% of all children in India are marginalized due to a variety of factors including poverty.

2. Age of children: While the 11th Plan set out to uniformly define age of children as below 18 and ensure all laws reflect this, this has not been achieved. Failure to achieve age rationalization is also a failure to meet UNCRC commitments by India. The 12th Plan has to set a goal of age rationalization across all laws/policies.

3. Consolidation of Child Related Governance: One of the most acutely critical issues in Governance is the segregation of Child related programs/policies/laws/protocols/processes amongst various ministeries. With little effective coordination and distributed accountability the system has been inefficient. The RTE is implemented by the Ministry of Human Resource Development. However, RTE being now a right for children in age group of 6-14, its implementation inevitably links with Child Rights/Child Protection issues- both of which fall under MWCD jurisdiction. The MHRD has no program of ensuring CR/CP interventions. Similarly, Ministry of Labour implements the National Child Labour Project (NCLP) however, rescue and rehabilitation of child labour is under MWCD. The objective of consolidating Women and child under a separate ministry now should be driven to its logical conclusion: All governance spaces for children- education, health, labour, etc - should be consolidated under a unified Department of Children under the MWCD. We recommend that the Department for School Education and Literacy and the NCLP projects be shifted under a unified Department of Children under the MWCD. Similarly responsibility for implementation of all laws related to Children should be transferred to the proposed dept under MWCD. This will ensure that the Department of Children will be accountable for all aspects of children's development until 18 years of age. 

4. Documenting and Reporting: One of the big issues in the governance of Child related spaces is the lack of a unified documenting and reporting across all states and across all departments dealing with Children. The Ministry of Statistics and Program Implementation (MOSPI) has repeatedly highlighted the problems of putting together statistics of MDG goals citing the lack of appropriate formats for data gathering/documentation/reporting. We recommend that during the 12th Plan an uniform format of data gathering/documentation/Reporting be implemented across the GOI and across all states for all programs in the Children space. In addition and district level upwards MIS be initiated across the country. This will facilitate not only accurate reporting for Children's development in India but also allow for transparent Monitoring and Evaluation.

5. Consolidation of laws relating to Children: As is well known various laws have differing treatment for issues relating to children. The Juvenile Justice Act 2000 covers children in need of care and protection and children in conflict with law.  Separately THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT 2009 (RTE) has clauses relating to physical punishment and mental torture. However this has not been defined. Similarly The Child Labour (Prohibition and Regulation) Act, 1986 does not comprehensively cover the issues relating to rehabilitation/restoration of rescued children. Many acts either do not comprehensively cover children related issues or give cursory coverage. Child Sexual Abuse is not covered in any law. Similarly the concept of "neglect" as indicated in JJ Act and in the National Charter for Children 2004 is not clearly defined in any law. "Neglect" is a huge issue with children in India. The Immoral Traffic Prevention Act also has several issues that need to be elaborated- the amendment to IPTA has been in abeyance for some time now. We recommend that the 12th Plan targets for a consolidation of all laws relating to children in all statues in a single comprehensive law covering Children. We also recommend that subsequent to this, the IPC and the Criminal Procedure Code (CrPc) be comprehensively updated. We also recommend that CrPc lay down standards, processes and protocols for handling children at Police Stations, in Courts and during police related medical checkups at hospitals. The Goa Children's Act has laid down some standards for children in courts . However we need a national standard laid down in the CrPc.

6. Monitoring of Direct GOI programs: It has become the norm in most states that Children's programs are under spent by March every year. This is due to a combination of lack of budgets at the correct time each year or inadequate / inconsistent M &E of these programs. We propose that a separate M&E team be created under NCPCR with the mandate of direct M&E of those programs directly implemented by the GOI- both at centre and state levels. The current mandate for NCPCR does include M&E however, the NCPCR neither has the budgets nor the structure to take on the role of a program M &E body.  The M&E team would need to be a large program M&E team with the ability to independently report on program implementation. Such reports must be made public and the M&E process must be completely independently managed by NCPCR.

7. UID for Children: The GOI has earmarked Rs 1000 Crores for the implementation of the UID scheme. We recommend that the 12th Plan adopt a program to ensure that every child born anywhere in India receive a UID. This UID must be tracked throughout the child's life upto the age of 18. All schooling, hospitalization, travel etc must use this UID. The UID must entitle the Child to all rights enshrined in our constitution and under various statutes/policies/programs. The objective of the Children's UID scheme is to ensure that we can track children's development and be able to intervene when the child drops out of school or needs nutritional support or health care etc. Even for missing children such a UID scheme would be invaluable. The ICDS scheme of the GOI can help ensure that every pregnant mother is made aware of the Children's UID scheme. The digitally loaded UID would store the child's basic information and a centrally data base can track every Children's UID issued in India. 

8. Pre-Primary schooling: It has been assumed that the Pre-Schooling Program of ICDS run by Angan Wadi Workers (AWW) is adequate to meet the needs of preprimary schooling. The RTE has left out pre-schooling completely (possibly due to the fact that ICDS covers it). In actually fact ICDS has no systematic program for pre-schooling nor any defined standards for pre-schooling. The result is largely informal pre-schooling. Meanwhile the private sector, sensing a killing in an unregulated sector which also has no government presence, moved in and is making a killing with setting up chains of pre-schools on franchisee model. We recommend that the ICDS pre-schooling be restricted between 2.5 and 3 years only and be restricted to a play school. We recommend that pre-schooling for 3-6 yr olds be regulated, a standard defined and a PPP model developed for implementation by NGOs in a partnership with the government. The GOI needs to set up an institute to undertake research in pre-schooling pedagogy and ensure that existing Govt. funded teacher training institutions offer specialized and certified training to Pre-school teachers. The govt. supported certified pre-school program implementation would ensure that children across India receive a standardized pre-schooling in the critical years of their brain development and be as uniformly ready as relatively affluent middleclass child in urban India is. The program would also be enormously popular with citizens as it would ensure a level playing field for all children as they enter Class 1. 

9. Linkages with Poverty alleviation programs: We recommend that the 12th Plan achieve linkages between ICDS/ICPS and poverty alleviation programs, particularly NREGA. We recommend making it mandatory that all beneficiaries of poverty alleviation programs ( such as NREGA) need to comply with norms that ensure their children are not working/ will not be sent to work/ will not be removed from school. Further we recommend that NREGA disbursements record the details of children of all beneficiaries so that local ngos in the CR/CP space can track such beneficiaries. This will have a huge effect on prevention of child trafficking which arises out of poverty.

11 Jul 2011

Ten Myths & Facts about Child Sexual Abuse

-  By Dr Shubhada Maitra *

Myth 1: Only strangers abuse children sexually
Fact: Danger from strangers is only a small part of the problem. Research evidence world over indicates that in a majority of cases, (upto 85%) the child’s relatives, family, friends or someone known and trusted by the child is involved

Myth 2: Both women and men sexually abuse children
Fact: An overwhelming majority of those who sexually abuse children is men although women are the ones who spend most time with children. Only a small minority of women report to have abused children.

Myth 3: Men who sexually abused child are mentally sick or perverted
Fact: Prevalence of child sexual abuse ranges between 30 to 85% in any society depending on the definition used for child sexual abuse. Mental illness on the other hand accounts for not more than 15% of the total population. If those who sexually abuse children were truly sick or perverted then we are living in a .sick and perverted. society. Unfortunately the men who sexually abuse children are often ordinary, respectable men holding positions of responsibility in the family, society, workplace and fulfilling their duties as per the demand of their role.

Myth 4: Child sexual abuse happens only in poor or problem families
Fact: Child sexual abuse cuts across classes, caste, religious and educational barriers and occurs irrespective of what the background of the abuser and the child is.

Myth 5: When children say they have been abused, it is often a figment of their imagination or fantasy. 
Fact: Most times, children are unable to disclose or talk about abuse. In rare instances, when they do talk, it is not their imagination or fantasy but very real; children need to be believed and supported if they talk about any sexual touching or if they express any reservations about interacting with particular adults.

Myth 6: Only beautiful or sexually precocious children are abused.
Fact: All children, irrespective of their age, colour, family background, sexual knowledge are vulnerable to abuse. They are perceived as easy targets because of the power the abuser has and the inability of children to speak up or stop abuse.

Myth 7: Children enjoy being touched sexually, that is the reason they do not report sexual abuse
Fact: Children do not report abuse for several reasons: They are afraid no one will believe them, they are afraid that the abuser may harm or kill them or their loved ones, they are afraid they will lose the love of their parents and near and dear ones, they do not have a language to disclose abuse. At no point does a child enjoy the sexual attention of an adult; children feel extremely overwhelmed and distressed by such attention irrespective of how their body responds to sexual touching.

Myth 8: We can tell if a child is sexually abused
Fact: Children are experts at hiding their pain. It is difficult to say from external appearance if the child is sexually abused. However, adults need to be alert to any changes in the child’s behavior, performance at school, emotionality, fear of certain places or people, resistance to go or meet some people and sleeping and eating patterns. A traumatic experience in a child’s life is often expressed through indirect means. Also many children may not show any change in their behaviors or other patterns until much later.

Myth 9: Child Sexual Abuse can never happen in one’s home.
Fact: Almost 30-50% children are abused by persons known to them; relatives, family friends, neighbours, drivers, watchmen, doctors, religious leaders. Such abuse often takes place in one’s home which is considered as a .safe haven.. The abuser enjoys the trust of the family members and has easy access to the child.

Myth 10: Boys cannot be abused
Fact: Although more girls are reported to be sexually abused, (one in every four) research indicates one in every seven boy’s world over are abused. These are just a few of the many myths that abound in every society. Myths help us in denying the fact the Child Sexual Abuse is very real, very personal; they keep us from scrutinizing the men we know, love and respect. They help us brush child sexual abuse under the carpet, falsely believing our own children cannot be abused and the abuser will almost always be unknown to us. It is time, as adults, as responsible adults who want to care for and protect our children to be alert, aware and stop child sexual abuse.

* Dr Shubhada Maitra is currently Associate Professor and Chairperson, Centre for Health and Mental Health, School of Social Work, Tata Institute of Social Sciences, Deonar Mumbai. Her PhD thesis was on Mental Health Correlates of Child Sexual Abuse

4 Jul 2011

Understanding Child Sexual Abuse

What is Child Sexual Abuse? 
By Dr.Shubhda Maitra*

  • Have you ever been followed by someone known or unknown to you? 
  • Has anyone made lewd comments, sung songs with sexual innuendoes, passed remarks about you or your body? 
  • Has anyone flashed/exhibited his genitals to you in a public or private place? 
  • Have you ever been touched, groped and fondled against your wish? 
  • Has anyone asked or forced you to touch his/her genitals against your wish? 
For many of us, particularly women, the answer to at least 2 of the questions posed above is in the affirmative; most times such experiences have occurred in our childhood or adolescence but not necessarily restricted to these stages. Would we term such experiences as sexually abusive? For many of us there would be some hesitation in doing so; a few others would unequivocally term the experiences as sexually abusive. What could be the reason for this divided opinion about what constitutes sexual abuse? For one, among many of us there is little clarity about sexual abuse. Can abuse happen without touching? What if the incident is a stray, one time experience? Doesn‟t „abuse‟ mean something happening over a period of time, over and over again? Can people known and unknown to us be sexually abusive? Or is it only strangers who sexually abuse?

Child sexual abuse has existed in all societies for centuries. There are many definitions of child sexual abuse. The standing committee on sexually abused children (Bajpai, 2003) has defined Child Sexual Abuse as „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 their usual societal or specific responsibility in relation to the child engaged or permitted engagement of that child in any activity of a sexual nature which is intended to lead to the sexual gratification of the sexually mature person. This definition pertains whether or not it involves genital or physical contact, whether or not initiated by the child and whether or not there is a discernible harmful outcome in the short run‟

The United Nations has defined child sexual abuse as contacts or interactions between a child and an older or more knowledgeable child or adult (a stranger, sibling or person in position of authority, a parent or a caretaker) when the child is being used as an object of gratification for the older child‟s or adult‟s sexual needs. These contacts or interactions are carried out against the child using force, trickery, bribes, threats or pressure (UNICEF, 2003). In such circumstances the child is never able to make a free and informed decision and can never be said to have consented. The NSW Child Protection Council definition states, „child sexual assault occurs when an adult or someone bigger than a child uses his power or authority over the child and takes advantage of the child‟s trust and respect to involve the child in sexual activity. In all cases the offender / abuser has more power than the child and misuses that power to take advantage of the child‟.

Inherent in the various definitions are concepts of violation of trust, abuse of power, the child‟s inability to consent, the age differential between the abuser and the child, the cognitive, emotional, psycho-sexual development level of the child and the sexual intent of gratification. 

Thus sexually abusive acts against children encompass a range of behaviours along the non-contact-contact continuum and include the following: 

Non-contact abuse or “Unsafe Actions” are 

  • Following or stalking a child Using sexually suggestive language with the child that includes lewd comments about the child or her/his body parts, stories or songs with a sexual overtone, sexual innuendos.
  • Showing the child pornographic material – pictures, films, videos or taking the child‟s pictures in semi nude or nude state or in sexually suggestive postures 
  • Watching the child undress, bathe, urinate or defecate or forcing the child to do all this in the presence of the adult 
  • Masturbating in front of the child Exhibiting one‟s genitals in front of the child or asking the child to do the same 
  • Contact abuse or “Unsafe Touch” includes Touching, fondling, caressing, kissing the child‟s body parts including her/his genitals 
  • Having the child touch, caress, fondle, kiss the body parts or genitals of the adult 
  • Masturbating the child Inserting finger, tongue, penis or any other object in the child‟s mouth, vagina or anus 
  • Forced sexual intercourse or rape that includes both vaginal and or anal penetration


 Bajpai, A. (2003). Child Rights in India: Law, Policy and Practice, New Delhi, Oxford University Press 
UNICEF. (2003). The State of the World‟s Children, NY, USA

Visit our website: http://www.childlineindia.org.in

* Dr Shubhada Maitra is currently Associate Professor and Chairperson, Centre for Health and Mental Health, School of Social Work, Tata Institute of Social Sciences, Deonar Mumbai. Her PhD thesis was on Mental Health Correlates of Child Sexual Abuse