The Hope For Future – The New Bill
The Indian Penal Code does little to address the range of sexual offences against children – very often the gravity of the crime cannot be addressed with appropriate legal redress. The lack of definitions for certain categories of offences results in some acts not being treated as a crime. After the National Study on Child Abuse indicated that every second child has been sexually victimised in some form, at some point in their lives and the continuous increase of child rape and other sexual offences reported against children (Crime Review of India, National Crime Records Bureau), the State perforce has had to address this glaring gap. The Protection of Children from Sexual Offences Bill, 2011 introduced into Rajya Sabha in the last session of parliament and now being referred to the Standing Committee of the Parliament, attempts to address the lacunae and the special challenges which arise due to the dynamics of the crime as well as the vulnerability of the victim. The following is a short commentary for a layperson on some important features of the Bill.
Taking into consideration the limited definition of the current law on Rape wherein rape is considered to have taken place when there is peno-vaginal intercourse in circumstances defined to be unlawful and/ or forced, the Bill looks to correct how the current law treats sexual assault that constitutes penetration. It defines penetrative sexual assault as being penetration of penis or object or other body part not only into the vagina but into the mouth, urethra and anus – all treated as serious as peno-vaginal assault. This recognises also that boys are raped and treats the crime no differently from peno-vaginal rape. It also encompasses penetrative acts that also address women as perpetrators.
It also includes ‘or makes the child do so with him or any other person’ which leaves no room for debate as to the child’s ‘complicity’ in the act.
Sexual assault includes any sexual act which involves physical contact but is not penetrative. Touching the private parts of a child with sexual intent or or having the child touch a person’s private parts where private parts include vagina, penis, anus or breast or/ and any physical contact without penetration (physical contact on any part of the body) and having sexual intent.
For the purpose of this proposed law, a child is defined as anyone under 18 years of age. If the sexual acts so defined in this Bill iinvolves a child between 16 to 18 years of age, consideration would be taken whether consent was obtained unlawfully and/ or forcefully. To quote; where Penetrative Sexual Assault or Sexual Assault
‘ is committed against a child between sixteen and eighteen years of age, it shall be considered whether consent for such act has been obtained against his will, or the consent has been obtained by use of violence, force, threat to use force, intoxicants, drugs, impersonation, fraud, deceit, coercion, undue influence, threats, when the child is sleeping or unconscious or where the child does not have the capacity to understand the nature of the act or to resist it.’
This brings us to the point of what is consent. To quote;
‘consent means the unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in this section’
‘unequivocal voluntary agreement means willingness given for specific and be limited to the express act consented to under this section’
But the absence of physical resistance alone will not be taken as a sign of willingness or consent to the sexual activity.
Aggravated penetrative assault and aggravated sexual assault is by definition circumstances that make the said assault even more grave. This includes doing harm to the child – infecting a child with HIV, causing the child to become mentally ill, taking advantage of a child who is physically and/ or mentally challenged. It includes perpetrators who are in a position of authority including police or the armed forces and those employed as a staff of an institution meant to take care of children and non-governmental organisations providing services to children. The Bill deems an assault as aggravated if the perpetrator is a person in a position of trust and in-charge of the care and upbringing of a child even if it be in the household, including a person in a domestic relationship with the care-giver of the household – domestic relationship in lay terms meaning the equivalent of a live-in relationship. If the offence has been committed repeatedly by the perpetrator on the child or if the perpetrator is being convicted again of the same crime the offence in question is said to be aggravated.
Sexual harassment covers all non contact sexual offences and includes sexualised talk, exhibitonism – showing of private body parts with sexual intent by the perpetrator or making the child do so, etc. It also includes (to quote)
‘shows any object to a child in any form or media for pornographic purposes’
‘threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act’
This would include showing pornographic material to the child and threatening to use any form of media of a child involved in a sexual act or media that shows a child’s body parts in a sexualised context.
It also includes stalking, defining it as repeatedly or constantly following, watching or contacting a child directly or by other means.
There is an entire section on the use of children for pornographic purposes wherein using a child in any form of media for the purposes of sexual gratification is punishable. This is an addition to the Section 67B of the IT Act 2000 which has very strong measures to address child pornography.
The Bill very specifically restricts media, studio, photographic facilities, etc from reporting or making comments about a case of a child who has been sexually abused. Consent of the child or of parents or guardians is required for disclosing details of the case which includes not only the name of the child but the address, neighbourhood or educational institution that the child is a part of and any such details by which the child can be identified. However, this indicates that consent merely from a child is enough to go ahead with disclosing information about the child’s case which seems to be lacking in its original intent to curb exploitative reporting.
The Bill also states procedures for reporting, recording and trying cases. All statements from the child must be taken in the presence of the child’s parents or any other adult in whom the child has trust and confidence. The procedures also tries to ensure that at no point does the child come in direct contact with the accused. It also states that where the victim is a child below 16 years, the burden of proof lies with the accused – ie, the accused must prove his innocence as opposed to the child’s council having to prove his guilt. During trial, the courts would maintain a child-friendly atmosphere and the court will not allow aggressive questioning or character assassination of the child. This nature of arguments will now be completely ruled out.
The Bill proposes that the Special Courts try these cases and complete the trial within a year as far as possible. This tries to lessen the secondary victimisation of the child by dragging the case over several years and also tries to instil faith in people to use the justice system. The Bill takes a huge leap in providing the means by which child sexual offences committed to a child can be legally addressed, it still deserves more review in order to ensure that it covers the spirit envisaged. However it still remains to become a law and then to be implemented effectively.
Please do read the Bill here – http://dl.dropbox.com/u/756350/CSO%20Draft%20Bill.pdf
Written by Trupti Chengalath from the We are Children campaign with input from Tulir.