The Indian government is poised to approve a much-needed and long overdue step toward protecting our children. The Protection of Children Against Sexual Offences Bill, 2011, defines sexual abuse of children under ‘assault’, ‘harassment’ and ‘(use of children in) pornography’ and prescribes punishment to offenders that can extend up to life imprisonment.
Expectations are high that the cabinet will soon clear the amendments to the bill on child sexual abuse, the first such legislation in India. the first draft of the bill was prepared by the Department of Women and Child Development in 2005.
“Under the new law, there will finally be specific sections that recognise the context and nature of the sexual offences against children. Under the existing laws, that is just not possible,” says Vidya Reddy of Tulir, a Chennai-based centre for prevention of child sex abuse. Tulir was among the civil society groups that testified in front of the Parliamentary Standing Committee last year.
But there is already confusion in the media as to exactly what the bill proposes to do – notably around the controversial ‘age of consent’ clause which has now been dropped from the bill. As per that clause, for children between 16 and 18 years, it was first necessary to consider whether the child had consented to the sexual act before the law could be applied. This clause has now been dropped leading to media outcry.
“Can vote at 18 but can’t have sex!” screams a
Daily Bhaskar headline.
The Times of India claims that the new bill is “provoking criticism from child rights activists who called it a regressive step” aimed at preventing young people from having sex outside marriage.
Former Law Commission member, Kirti Singh, told
TOI that raising the age of consent “would amount to ‘criminalising’ sex between young people. ‘The remedy to young people indulging in sexual activity is not by clamping down through law and enforcement.” According to the newspaper, under the revised law, any sex with an underage person – even if consensual – will be considered statutory rape, and will be tried under the Juvenile Justice Act, carrying a maximum punishment of three years in jail.
Other experts, however, point out that sex with anyone under 18 will indeed be criminal if – and only if – one of the parties is an adult. “The purpose of the law is to protect children – understood as being upto 18 years of age – from the unwanted sexual advances of adults. The proposed law does not in any way deal with consensual or otherwise sex between and among minors,” says activist Pinki Virani.
Certainly, the harsher provisions of the bill are aimed at adults, especially those in positions of authority and whom the child trusts. The offence is deemed ‘aggravated’ if it is committed by a family member or by a police officer, a doctor, a teacher etc, and attracts a more severe punishment.
Among the other highlights of the bill are the proposal for a ‘juvenile police unit’ for reporting cases of child sexual abuse. In cases where the child makes a complaint, the bill proposes that the statement be recorded in the presence of parents or any other person who has the trust or confidence of the child.
The bill also envisages the creation of ‘special courts’ to hear cases of child sexual abuse, ways to make such courts child-friendly, and prohibits the media from making “any report or present comments on any child” without the consent of the child or his/her parents or guardian.
Irrespective of the ‘age of consent’ controversy, there is no doubt that the law will be the first big step in setting the context for a “societal and attitudinal mindset change” needed for children and adults to speak out against child sexual abuse and report offenders. Worldwide only 12-18 per cent of the children even disclose, leave alone report, being sexually abused.
Even parents who are willing to talk about it hesitate to take legal action. “If today a parent discovers that her child was abused, she’ll take all safeguards to protect [her own] child. But she must also think of other children who the abuser has access to and report the offender,” says Reddy.
