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. 

Conclusion 

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.