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A Socio-Legal Analysis of Child Sexual Abuse in India

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 ISSN: 0011-9342 | Year 2021
Design Engineering Issue: 9 | Pages: 1768 - 1775

A Socio-Legal Analysis of Child Sexual Abuse

in India

Dr. Harikumar Pallathadka1, Sanjeev Kumar2*, Dr. Laxmi Kirana P.3, Vikas Kumar4
1, 3
Manipur International University, Imphal, Manipur, India
2*
Career Point University, Hamirpur, Himachal Pradesh, India
4
Himachal Pradesh University, Shimla, Himachal Pradesh, India
1
harikumar@miu.edu.in
2*
sanjeevsanjeev292@gmail.com
3
laxmikirana@miu.edu.in
4
kumarvikas.hp94@gmail.com

Abstract
Children must be nurtured adequately throughout their formative years to grow up to become
valuable members of society. Because children are the most vulnerable group in society, they are
more susceptible to various abuses, especially sexual assault. It is a blatant violation of human rights
to use children for sexual pleasure, which is the definition of child sexual abuse. The problem
worsens quickly and has taken on a global nature, causing physical, emotional, and psychic harm to
children when they do not disclose it to adults.
The first Indian government-passed law addressing the sexual abuse and exploitation of children was
the Protection of Children from Sexual Offences Act, 2012, which provided severe penalties.
However, the rising numbers of cases suggest that the Act's implementation is lacking and that law
enforcement agencies have no interest in acting against the perpetrators of this heinous crime, as
exemplified by the recent cases of gang rape in Unnao and Kathua. The government has thus been
forced to make amendments to the Act to improve its efficacy.
The current study reviews the issues associated with child sexual abuse in India, from the
contributing factors to the implications of the crime. It critically analyses the existing legal
framework, focusing on the newly implemented amendments of the POCSO Act by exploring the
effectiveness of these adjustments and suggesting additional methods to handle this despicable crime
effectively. This study also covers child sexual abuse during the covid-19 period in India.
Keywords: Child, Sexual, POCSO, Abuse, Crime

Introduction:
One's childhood is the most critical phase of their life. They are the nation's future architects.
Therefore, the well-being of such individuals necessitates the creation of a healthful and secure
atmosphere to protect their rights. Unfortunately, despite children's fragility, the terrible situation is
that they are easy targets for exploitation and abuse by offenders. When we use the phrase "child
abuse," we refer to cases of children being neglected or mistreated. WHO claims that 40 million

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children between the ages of zero and fourteen are suffering from abuse or neglect, and therefore
they need health or social care.
One of the types of child abuse that affects humanity as a whole is child sex abuse. It is a global
scourge, and India is facing it in the face. The World Health Organization defines child sexual abuse
as the exploitation of a child in a sexual act they do not entirely understand, cannot agree to, and are
not developmentally prepared. It is a taboo crime that seldom gets reported because of shame or fear
of social stigma. Family members are often the perpetrators. Children's psychological, physical,
mental, and emotional development is significantly impaired by it.
Despite being a landmark piece of legislation, the passage of the Prevention of Children from Sexual
Offences Act, 2012 has increased the reporting of child sexual abuse cases in India. Still, the law
suffers from numerous flaws that hinder its successful implementation. Due to its lack of
implementation, the massive number of cases under the Act, with a relatively low conviction rate,
reflects its incompetence. The extensive media coverage of two horrific child rape cases (the Kathua
and Unnao rape cases) and numerous comparable occurrences had prompted an amendment to the
POCSO Act. It now imposes stricter and more severe penalties, including capital punishment as a
solid deterrent to criminals. However, the revised Act also has certain shortcomings since it does not
address many significant problems that must be considered by the government immediately. A
revised version of the legislation offers no way to speed up trials and investigations, making it
impossible to execute the Act properly.
Consequently, the need now is to teach law enforcement, legal, and medical organizations about the
complexities of the law's application to work together to fight the crime of child abuse.

CHILD SEXUAL ABUSE IN INDIA; A GROWING MENACE

It is one of the most serious dangers that may affect a kid at any time before they reach maturity
since child sexual abuse includes exploitation of the child by the offender for sexual pleasure. There
may be any number of sexual favors like intercourse, oral sex, or touching private areas, child
pornography, voyeurism, and others.
Around one-third of India's population comprises children, who account for a significant percentage
of the total population. 11% of the country's children have been subjected to severe sexual abuse,
while half of the country's children have been subjected to some sexual abuse. Females make up
almost half of all child abuse victims, while boys make up about half of all child abuse victims. A
recent report from the National Crime Records Bureau reveals that more than 24,000 instances of
child abuse have been reported in India over the last six months. It is believed that such crimes are
increasing in our nation and must be dealt with immediately.
Maharashtra, Uttar Pradesh, and Tamil Nadu reported the most child-related offenses.
Poverty, a lack of sexual education, the presence of obscene posters, online material, and many
harmful traditional practices—such as child marriage, caste-based discrimination, child labor, and
Devadasi—make children susceptible to abuse. While poverty is undoubtedly a significant
contributing element, it may also be seen in wealthy communities of people of many religions and
cultures. A second reason for this issue is the disintegration of the united family structure in
contemporary times. Child sexual abuse victims often do not report their assaults because such

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incidents are generally conducted in secret, and children rarely report them to their parents. When
they do, they are often asked to remain silent out of fear of public humiliation and shame, especially
when the perpetrator is a family member.
Abnormal or seductive behavior, genital bruising or bleeding, difficulty sitting or standing, and
refusing to be around children or adults are all indications of child sexual abuse.
The aftereffects of child sexual abuse are wide-ranging, both physically and mentally. Common
indicators of the abuse in victims include fear, despair, suicide attempts, aggressiveness, defiance,
loss of self-confidence, and risky behavior. The victims are left feeling alone, scared, guilty, and
concerned.

LEGISLATIVE & JUDICIAL RESPONSE

India ratified the U.N. Convention on the Rights of the Child in 1989. It was the first legally binding
international agreement that specifically applied to the welfare of children. The Act also compels the
governments to prevent children from suffering sexual abuse and exploitation in all forms. The
Indian Constitution grants certain rights and opportunities to children to ensure their survival and
growth. It is essential since children represent the future of the nation.
(i)The Indian Constitution allows the state to provide particular advantages to children for their
development.
(ii) The Constitution of India provides for children to be afforded chances and facilities to grow in
healthy ways in terms of freedom and dignity and for children and adolescents to be safeguarded
from exploitation, moral and material abandonment.
(iii) The Constitution protects the health of young children by preventing them from entering
industries or entering into other dangerous jobs.
The Constitution also puts a responsibility on the state to ensure that all children under the age of
fourteen receive free and obligatory education.
In addition, the Indian Constitution states that the state should provide early childhood education and
care available to all children until they reach the age of six.

PRE-POCSO Laws
In India, child sexual abuse has been largely neglected, and it has never been recognized as a
criminal offense until recently. Rape, prostitution, and human trafficking were among the few
recognized sexual crimes against minors in India. They were all dealt with under the broad
provisions of the Indian Penal Code, 1860, which made no difference between adult and child
victims of the crime. Section 509 (insulting the modesty of a woman or girl); Section 354 (outraging
the modesty of a woman or girl); and Section 509 (insulting the modesty of a woman or girl).
Sections 361 and 363: Kidnapping a minor from the custody of a legal guardian; Section 363A:
Kidnapping or maiming a minor to beg; Section 361: Kidnapping a minor from the guardianship of a
legal guardian; Section 361A: Kidnapping or maiming a minor to beg; Section 361A: Kidnapping or
maiming a minor for the purpose Procuration of a minor girl is covered under Section 366A. A girl
from a foreign country may be brought into the country under Section 366B. Section 372: Selling a
juvenile for prostitution is prohibited. The purchase of minors for prostitution is covered under

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Section 373. Section 375 (Raping) of the Penal Code In Section 376, various types of rape are
punished differently. Sections 376 A, 376 B, 376 C, and 376 D are the distinct types of rape punished
differently. SECTION 377: This section dealt with unnatural sexual activities, and it was often used
in cases of sexual abuse of male minors. The Information Technology Act, 2000 prohibited the
publishing and transmission of pornographic material. The Immoral Traffic (Prevention) Act, 1956,
deals with the criminalization of prostitution and human trafficking in the Indian subcontinent. As a
result of the lack of specific legislation addressing a range of various other forms of sexual
exploitation of children such as Child Sexual Assault (not amounting to rape), Sexual Harassment,
and Child Pornography, as well as growing concerns about the rising trend of sexual violence against
children in India, new comprehensive legislation known as the Protection of Children Against Sexual
Offences (PCASO) was enacted.

POCSO Act, 2012; Salient Features

A gender-neutral law prevents children from sexual assault, harassment, and pornography by having
severe penalties and child-friendly ways to report, record evidence, and investigate crimes while
keeping the case fast and going via a special court. The law sets a cut-off at 18 years of age for a kid.
It covers sexual abuse of different types, including penetrative and non-penetrative assault, sexual
harassment, and pornography. It categorizes a sexual assault as "aggravated" when it is committed by
a person in a position of trust or authority, if the victim is mentally ill, or if the victim is under a
certain age.
Though it was banned under different laws, the exact definition of the crime of pornography was
never made explicit. Sexual exploitation of children is now officially defined as any picture, video,
digital, or computer-generated image that looks like a real kid, as well as an image that has been
changed or altered to seem as if it were a real child. Additionally, it bans child sexual exploitation
and prescribes the same penalty for aiding in the crime as for perpetrating it.
The child-friendly methods of recording testimony include: conducting the interview in the child's
home, banning night-time detainment of any children at the police station, and transcribing the
child's testimony verbatim. The kid needs the assistance of an interpreter or other expert. A woman
doctor will do a medical checkup on a girl and in the presence of a guardian or other family member
whom the kid trusts. Frequent pauses for the child were required to avoid harsh interrogation or
character assassination during trial procedures. The child's identity was protected to prevent the
media from revealing the child's name without the approval of the Special Court.
The law also calls for obligatory reporting of offenses and failing to disclose such an offense would
lead to a penalty. To minimize the time it takes to go to trial, the Act sets a 30-day limit for gathering
evidence and requires trials to be finished within a year, as much as feasible.

POCSO Act: Recent Developments

The law has been further updated to increase the severity of punishments for various crimes,
including the possibility of capital punishment for sexual assault and aggravated penetrative sexual
assault, to deter potential sexual predators from committing the heinous acts seen in recent tragedies
like Unnao, Kathua, and Muzaffarpur Shelter Home.

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The old law's penalty for penetrative sexual assault was a minimum of seven years in prison; the new
Act increases that to 10 years. The amended section also has a sub-part that says if someone below
the age of 16 is the victim of a sexual assault, the minimum penalty is 20 years in jail, which may be
extended to life in prison and a fine.
The Revised Act adds two additional categories of severe penetrative sexual assault. Like when a
child is attacked till death and when a sexual assault happens during a natural catastrophe or similar
condition of violence—penalties for this offense vary from ten to twenty years in prison to the death
penalty.
The aggravated sexual assault definition has also been expanded to include cases where the attack
was carried out during a natural disaster or where children are administered or helped to receive
hormones or chemical substances to reach sexual maturity prematurely.
This amendment also enhanced the penalties for the storage of pornographic material for business
purposes. Also, it included two additional grounds that are not subject to destruction, deletion, or
reporting of pornographic material concerning a child and the transmission, display, and distribution
of such material other than for reporting purposes.
The judicial system has become aware of the increase in crime and the sexual exploitation of minors
and has prioritized providing recommendations on security and rehabilitation.
The NGO Sakshi v. Union of India (AIR 2004 SC 3566) established that existing criminal laws were
inadequate in handling instances of child sex abuse in the first instance, through their PIL filed
before the Supreme Court. Sexual penetration of a female victim was prosecuted under Sections 375
and 376(2) of the IPC, whereas sexual penetration of a male victim was prosecuted under Section
377 of the IPC. Non-penetrative sexual offenses committed against a female child were dealt with
under sections 354 and 509 of the IPC, but a similar rule did not exist for a male child victim.
The Supreme Court issued guidelines on conducting proper child sex abuse trials, including
concealing the accused's face from the victim or witnesses, allowing victims to take breaks during
the trial, and limiting unnecessary victim harassment during cross-examination. These guidelines are
incorporated into the POCSO Act. In Shankar Kisanraokhade v State of Maharashtra 5 SCC 546
(2013), the court noted that sexual abuse might occur in many forms, including sexual molestation,
assault, or exploitation child may be sexually abused by a person known to them.
The Supreme Court required that the federal and state governments and voluntary organizations
safeguard minors from prostitution and provide them chances for rehabilitation and a better life in
Gaurav Jain v Union of India, AIR 1990 SC 292 (2004).
The Supreme Court said in Vishal Jeet v Union of India (AIR 1990 S.C. 1412(1990) that child sex
abuse is a socio-economic problem and ordered state governments to guarantee that law enforcement
agencies take action against this horrible crime.
As a result of their age, the Supreme Court in Nipun Saxena & Anr v Union of India WP (civil)
565/2012 emphasized the need for extra care and protection for child sexual assault victims by
keeping their identities and names hidden.

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Challenges Ahead
Because of increasing concerns about the escalating trend of sexual assault against minors, the
POCSO (Amendment) Serve, 2019, has increased penalties to deter offenders. Unfortunately, its
poor execution has meant no significant improvement or decrease in the sexual crime rate.
According to the NCRB's conclusions, the present Act's conviction rate is meager, but the number of
pending cases continues to grow. As following are the primary causes of weak implementation of the
law:
Delays in court proceedings are caused by the shortage of judges qualified to handle criminal cases
under the statute.
Law enforcement agencies' apathetic attitude is another significant issue. Another problem is the
inexperience of medical, judicial, and law enforcement agencies in addressing instances of child sex
abuse. Police sub-inspector, who record underage female victims' testimonies, are in short supply in
different police stations. Expertise and credibility of kid witnesses in courtroom battles that are
frequently prolonged

The Act's vulnerabilities:

The revised legislation has severe penalties, but it is still riddled with loopholes that need urgent
correction. Increased use of the death penalty may reduce the number of reported murder cases and
victims murdered. Generally, the offender is someone known to the victim, discouraging the victim
from filing a report. In addition, the risk of a victim being raped and murdered is much greater. In
cases where the accused is in authority, the amended Act does not protect the victim and their family.
Despite the increased penalty for severe sexual assault, the Unnao Rape case shows that more must
be done. The revised legislation lacks a plan for compensating victims or ensuring an adequate police
investigation or an efficient method for decreasing the number of cases awaiting trial. It ignores
worries about young adults having consensual sex since the current legislation considers 16-18-year-
olds too immature to have sex, which families frequently abuse to cover up elopement and inter-caste
marriages.

The situation during Covid-19 Pandemic:

The particular obstacles faced by the COVID-19 epidemic spread to medical, social, and financial
difficulties. The most significant pain is happening in one specific manner, and children are
experiencing it. Despite children being a smaller proportion of the COVID-19 population, the global
pandemic has had an outsized impact on children's access to a secure and healthy learning
environment. In every corner of the globe, almost one billion children have been denied access to
schooling for at least three to four months, thanks to national lockdowns. This change, in turn, allows
sexual predators to harm youngsters via virtual venues.
As to CHILDLINE 1098, an exceptional service that deals with emergency requests for assistance
from women and children experiencing abuse and violence, the number of calls from distressed
children during India's shut down in April of 2020 rose by 50 percent. The Supreme Court of India
recognized the severity of the situation, taking cognizance that children in state care programs faced
significant risks.

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The growing use of internet communication tools amongst children and teenagers in India has caused
a new danger to their safety. The latest study from the U.S. National Center for Missing & Exploited
Children (NCMEC) and the National Crime Records Bureau (NCRB) shows that from September
2019 to January 2020, at least 25,000 child sexual abuse photos were posted to Indian social media
sites. After the lockdown was announced, child pornography searches spiked drastically, as the India
Child Protection Fund reported. A 95 percent increase in child sexual abuse material and images was
noted during the country's shutdown.
The genuine issues associated with these numbers are a cause for worry, particularly considering the
changing landscape of education, which has moved entirely online, and the fact that "having
continuous parental supervision is not a realistic choice in households with two working parents."
Additionally, in many instances, schools urge parents to avoid hovering around their children in the
class to reduce the likelihood of helicopter parenting. It may make youngsters more susceptible to
internet sexual abuse.

To guarantee the Indian Constitution's Article 21 right to dignity, protecting minors from sexual
assault is very necessary. Spending more time online may lead to grooming and exploitation, both
online and offline. Children may be quickly forced into participating in criminal or hazardous
actions. For instance, minors may be manipulated into making and sharing sexually explicit pictures
of themselves, which others may exploit to harass and abuse them.

CONCLUDING REMARKS & SUGGESTIONS

Child sexual abuse is a societal calamity that has ramifications for the whole human race. It is a
covert crime that often goes undetected, either because it is committed by people who are familiar to
the victim, or because the victim is embarrassed to report the abuse because of social shame, or for
any other reason, and is left to suffer in silence and without help. The passage of the POCSO Act has
resulted in a significant rise in the number of instances of child sexual abuse being reported in India.
While it has attempted to stem the upward trend in sexual crimes against children, it has failed due to
severe loopholes in its effective implementation. It requires dedicated and coordinated efforts from
the implementing agencies and a robust multidimensional approach to ensure a speedy trial to avoid
the re-victimization of those affected. After the alarming increase in sexual crimes against children
and the tragic incidents of Kathua and Unnao gang rape, the POCSO Act was amended to provide
more stringent punishments to act as an effective deterrent. However, this is insufficient because it
lacks any practical solution to deal with the massive backlog of cases registered under the Act and
fails to address many more k issues. The k issues include:
Moral and sexual education should be made mandatory in all schools and colleges to raise awareness
and vigilance among youngsters about the increasing number of sexual crimes and help them
comprehend the different kinds of sexual violence.
It is essential to educate parents on excellent parenting practices since they are the ones who can
establish the safest environment favorable to their child's health and well-being.

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Awareness is a powerful tool in the fight against this social evil. As a result, the media and non-
governmental organizations (NGOs) should be well-equipped to educate the public about children's
possible hazards and dangers.
Each agency is responsible for a particular element of the issue and has primary accountability for it.
As a result, a coordinated effort on all implementing agencies is needed to guarantee a speedy trial,
especially in light of the large number of exceptional cases filed under the POCSO Act and the low
percentage of convictions. According to the United Nations, judges, physicians, staff members,
police officers, and prosecutors who have been educated to grasp the complexities of these crimes
and react appropriately are in high demand today.
The POCSO (Amendment) Act, 2019, is deafeningly silent on several critical issues that require the
government's immediate attention and careful consideration to achieve the Act's objectives of
providing children with prompt justice and ensuring a safe environment for their better survival.

REFERENCES
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of Prohibitory Legislation in Preventing Online Sexual Abuse of Children: A Critical Socio-Legal
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2) Babbar, S. K. (2014). Child Welfare: A critical analysis of some of the socio-legal legislations in
India. IOSR Journal Of Humanities And Social Science, 54-60.
3) Seth, R. (2015). Child abuse and neglect in India. The Indian Journal of Pediatrics, 82(8), 707-714.
4) Choudhry, V., Dayal, R., Pillai, D., Kalokhe, A. S., Beier, K., & Patel, V. (2018). Child sexual abuse
in India: A systematic review. PloS one, 13(10), e0205086.
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6) Virani, P. (2000). Bitter chocolate: Child sexual abuse in India. Penguin U.K.
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13) The Constitution of India, (1950)
14) The Immoral Traffic Prevention Act, (1956).
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