Transcript of the Chat with Smriti Kaul

Brief on Legal Situation in India To begin it is very unfortunate that in India we do not have any specific laws governing Child Sexual Abuse.  Hence more often than not we are left with no option but to take the help of other penal laws to address the issue at hand. On a +ive note the Govt of India is in d process of enacting a new bill-‘The Protection of Children from Sexual Offences Bill,2011.  This Bill will help tackle the issue more firmly and directly than the case has been so far… Thus, as of today, in the absence of any worthwhile legislation, AWARENESS is our only weapon against Child Sexual Abuse…  coming back to the new bill not only the commitment of pornography but also the possession of the same is punishable. The other areas it covers is sexual harassment and child pron .There is a responsibility on all sectors of society including media, photo studios etc to report child porn acc to the new bill. There is also an provision for the trail of such cases in special courts the cases have to be time bound to a maximum closure time of 1 yr. The biggest challenge with CSA is that the def of child itself is not clear and varies with purpose as far as sexual offense is concerned the IPC defines the child as anybody under the age of 16 years and the new bill also laid down that definition

Note : Also read this post for the various laws that can be used in CSA cases

Q. What is the legal recourse available to a parent if his/her child has been abused? #csaam

ans. Hi, depending on the nature of abuse eg contact or non contact sexual abuse there are different laws that the parent can take recourse to…

q. smriti u were mentioning that we can apply various other laws in case of CSA can u please tell us which could be they?

The other laws mentioned could be laws against unnatural sex, rape, outraging d modesty of a woman etc under the Indian Penal Code 1860…

Q. in countries with a CSA law, are children required to testify? Would that be traumatic for them again?

Ans. In such countries they are special provisions in place to ensure that the child (victim) is not put through the trauma of having to testify in an open Court… The testimony could be on camera or in a special set up

Q. a sexually abused child can’t prove the molestation, how do the accused get punished in these cases?

Ans. That is the biggest challenge in these cases, but as a matter of procedure, evidence is necessary

Q. If a person has been abused as a child and is now an adult, and wants to take the perpetrator to court is it possible?

Ans It is possible, however evidence becomes an issue and more often than not the judiciary is of the opinion that the victim or survivor has been tutored to file the case…

Q. Smriti, have there been any cases where a abuser has been punished in case of CSA. Have abusers been punished in case on CSA but not Rape?

Ans. Yes, they have been but generally such cases were limited to rape of the victim. Not really, because laws such as ‘Outraging the modesty of a woman’ etc only pertain to a woman and may not help in protecting a male child…

Q. Very often we see cases where a child is abused by an older child, is there a law we can turn to in that case?

Ans. Yes, such cases would fall under the Juvenile Justice (Care and Protection of Children) Act,2000..

Q. Are doctors and health workers mandated to report any suspect injuries?

Ans. They r not mandated as of 2day bt under d provisions of the new Bill they could be punished if they don’t

Q. So does that mean we dont have any law one can turn to incase a male child is abused?

Ans. The law against unnatural sex is supposed to govern such cases however the explanation only talks of voluntary carnal intercourse, thereby not entirely protecting the victim…

Q. are we right in presuming that there are no laws for non-penetrative molestation?

Ans. Not per se, but yes laws like ‘outraging the modesty of a woman’ and ‘Law against indecent behavior etc, under the IPC can be resorted to..

Q. but is it not right that the consent is not accounted for below 16 yrs of age?

Ans: Which is exactly the case and hence the belief that the law being used is not strong enough…

Q. But ‘indecent behavior’ and ‘outraging of modesty’ sound very vague. Do they elaborate on specific acts or is that open-ended?

Ans. Sadly, these are open ended…

Q. Ok a basic question which has come in where shld the case be reported first after the abuse is found out?

Ans. The nearest Police Station.

Q. In most cases the abuse wont be reported immediately after it has happened. any repercussions of that?

Ans. Loss of a combination of evidences, forensic or otherwise, is the most common repercussion

Q. Who is in charge of formulating and amending laws concerning sexual abuse?

Ans. The Ministry of Law, Govt of India, who often take recommendations from civil society organisations

Q. most of the times people are unaware are there any imp points to keep in mind while reporting the case

Ans.

Q. Could you tell us more about the new bill, and how it will help reporting and prosecuting such cases?

Ans. The major +ive is that, once passed, we would finally have a Law that deals with CSA specifically if a person in a position of trust commits CSA he/she gets an aggravated punishment.

Q. Do we have any indication of how long before the bill is passed and becomes a law?

Ans. Since the session is closed now we are waiting for the session to open again, hoping it will get passed at that time

Q. What could be the kind of evidence that could be used in CSA cases specially the ones that are non penetrative

Ans. generally the testimony of the victim is used as an evidence in cases of no penetrative abuse.

Q. but wont it be stressing for the child to give the testimony can it be done in protected view

Ans. That is being recomended by lots of NGOS and we will have that in place in the new bill

Q. As with other crimes, is it better to engage a lawyer before filing a report/suit?

Ans. It depends on the individual if the person thinks its convenient they can go ahead and hire one

Q. Smriti, why has the government been so lax about formulating appropriate legislation on the issue? Would love to hear your opinion.

Ans. the govt has lots of other issues to concentrate and that is why they take kids for granted and that is also an important reason we do whatever we can to prevent CSA #csaam

Q. : do you see any lacunae in the proposed bill?

Ans. there is not sufficient stress on internet based porn. Also it legalises mutual consent sex at 16 yrs. the bill only recommends but doesn’t mandate therapy for the child and the family. yes the CSO’s are looking into and are hoping that the bill is not passed in a hurry w/o making required changes

Q. Who are the legal luminaries involved in drafting the bill? And who are the activists pushing for change?

Ans. there are a lot CSO who have been working closely with the govt on this issue since a long time