Child sexual abuse: a study with reference to the protection of children from sexual offenses bill 2011

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Written By: Dhimaan Dutta

Child sexual abuse: protection of children from sexual offenses bill 2011

What is Child Abuse?

Physical, sexual, and/or psychological mistreatment or neglect of a child or children, especially by a parent or caregiver, is known as child sexual abuse or child maltreatment. Child abuse may be defined as any act or failure to act by a parent or caregiver that causes real or prospective harm to a kid. It can take place in the child’s home, as well as in the organizations, schools, or communities with which the child interacts.

Although some studies distinguish between the words child abuse and child maltreatment, others regard child maltreatment as an umbrella term that encompasses neglect, exploitation, and trafficking. Different jurisdictions have taken varied approaches to mandated reporting and different definitions of what constitutes child abuse for the purpose of removing children from their homes or bringing a criminal case.

According to WHO, “All forms of physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment, or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development, or dignity in the context of a relationship of responsibility, trust, or power.” “Violence against children” is defined as “all types of violence against persons under the age of 18 years, whether done by parents or other caregivers, classmates, romantic partners, or strangers,” according to the WHO.

In the United States, the Centers for Disease Control and Prevention (CDC) defines child maltreatment as “words or overt actions that cause harm, potential harm, or threat of harm to a child,” as well as acts of omission (neglect), which include “failure to provide for a child’s basic physical, emotional, or educational needs or to protect a child.” Child abuse and neglect are defined by the federal Child Abuse Prevention and Treatment Act as “any recent act or failure to act on the part of a parent or caretaker that results in death, serious physical or emotional harm, sexual abuse or exploitation,” or “an act or failure to act that poses an imminent risk of serious harm.”

Now this abuse can also be subcategorized under 4 classifications

  1. Physical Abuse
  2. Sexual Abuse
  3. Psychological Abuse
  4. Neglect
  1. Physical Abuse

There is debate among experts and the general public on whether behaviors constitute physical abuse of a child. Physical abuse frequently occurs in conjunction with other characteristics such as authoritarian control, anxiety-provoking conduct, and a lack of parental love. Intentional use of physical force against a child leads in or has a high chance of resulting in harm to the child’s health, survival, development, or dignity, according to the World Health Organization. Hitting, kicking, shaking, biting, strangling, scorching, burning, poisoning, and smothering are all examples. In many cases, physical violence towards children occurs in the family with the intention of punishing them.

The purposeful infliction of significant injuries, or acts that put the kid in clear danger of serious damage or death, is unlawful in most countries with child abuse legislation. Physical abuse can include bruises, scrapes, burns, broken bones, lacerations, as well as frequent “mishaps” and hard treatment that could result in physical injuries. Abuse suspicions might be raised if several injuries or fractures are seen at different phases of recovery.

2. Sexual Abuse

Child sexual abuse (CSA) is a type of kid abuse in which a child is abused for sexual arousal by an adult or older adolescent. The participation of a kid in a sexual act for the physical satisfaction or financial gain of the individual conducting the act is referred to as sexual abuse. Asking or pressuring a child to engage in sexual activities (regardless of the outcome), indecent exposure of a child’s genitals, displaying pornography to a child, actual sexual contact with a child, physical contact with the child’s genitals, viewing of the child’s genitals without physical contact, or using a child to produce child pornography are all examples of CSA.

Child abuse, rather than simply jail, may be seen and treated as selling the sexual services of minors. As of 2016, 15 percent to 25 percent of women and 5 percent to 15 percent of males in the United States have been sexually assaulted as youngsters. The majority of sexual abuse perpetrators are known to their victims; approximately 30% are relatives of the child, most commonly brothers, sisters, fathers, mothers, uncles, or cousins; approximately 60% are other acquaintances, such as family friends, babysitters, or neighbors; and strangers perpetrate approximately 10% of child sexual abuse cases. Moreover a third of the time, the perpetrator is also a juvenile.

3. Psychological Abuse

Child psychological abuse is defined in a variety of ways:

  • Child Psychological Abuse was introduced to the DSM-5 by the American Psychiatric Association (APA) in 2013, and is defined as “nonaccidental verbal or symbolic acts by a child’s parent or caregiver that result, or have the potential to result, in substantial psychological injury to the child.”
  • In 1995, APSAC defined it as “a repeated pattern of caregiver behaviour or extreme incident(s) that convey to children that they are worthless, flawed, unloved, unwanted, endangered, or only of value in meeting another’s needs” or “a repeated pattern of caregiver behaviour or extreme incident(s) that convey to children that they are worthless, flawed, unloved, unwanted, endangered, or only of value in meeting another’s needs.”
  • State laws differ in the United States, although most include prohibitions prohibiting “mental harm.”
  • Some have characterised it as the occurrence of psychological and social problems in a child’s development as a result of behaviours such as screaming, being coarse and unpleasant, being inattentive, harsh criticism, and denigration of the child’s individuality.
  • Name-calling, mockery, degradation, destruction of personal possessions, torture or killing of a pet, excessive criticism, inappropriate or excessive requests, communication withholding, and regular labelling or humiliation are all instances. 

Emotional abuse victims may react by putting distance between themselves and the abuser, internalizing the abuser’s comments, or striking back by insulting the abuser. Emotional abuse can cause aberrant or disturbed attachment development, as well as a tendency for victims to blame themselves for the abuse (self-blame), acquired helplessness, and overly passive conduct.

4. Neglect

Kid neglect occurs when a parent or other person responsible for the child fails to provide the child with necessary food, clothes, housing, medical treatment, or supervision to the point that the child’s health, safety, or well-being is jeopardized. Neglect also includes a lack of attention from those around a kid, as well as the failure to provide the necessary and adequate requirements for the child’s existence, such as care, affection, and nurturing.

The kid is regularly absent from school, begs or steals food or money, lacks required medical and dental treatment is habitually filthy or lacks suitable clothing for the weather, to name a few indicators of child neglect. The 2010 Child Maltreatment Study (NCANDS), a yearly United States federal government report based on data provided by state Child Protective Services (CPS) Agencies in the United States, discovered that neglect/neglectful conduct was the “most common form of child maltreatment.”

The National Center for Missing and Exploited Children’s 2010 Child Maltreatment Report (NCANDS), a yearly United States report on Negligent behavior may be broken down into six categories:

  • Supervisory neglect occurs when a parent or guardian is absent, and it can result in physical injury, sexual abuse, or criminal activity.
  • Physical neglect is defined as a failing to meet fundamental physical needs such as a secure and clean house.
  • Medical neglect is defined as the failure to provide medical treatment
  • Emotional neglect is defined as a lack of nourishment, encouragement, and support.
  • Educational neglect is defined as a caregiver’s failure to offer an education and other resources to enable the child to engage fully in the educational system.
  • When a parent or guardian leaves a kid alone for an extended length of time without a babysitter or caretaker, this is known as abandonment.

Such children are less likely to see caregivers as a source of safety, and instead exhibit an increase in aggressive and hyperactive behaviors, which may undermine their adopted parents’ healthy or secure connection. These youngsters appear to have learned to adjust to an abusive and inconsistent caregiver by becoming cautiously self-reliant, and their relationships with others are frequently described as glib, manipulative, and deceptive as they go through childhood. Because of the lack of attachment they had as children, children who have been neglected may have a harder time developing and maintaining relationships later in life, such as love or friendship.

Child Sexual Abuse in India

In India, child sexual abuse (CSA) has just lately been recognized as an issue. The passage of specific legislation, the Protection of Children against Sexual Offences (POCSO) 2012, which criminalizes a variety of actions such as child rape, harassment, and exploitation for pornography, is a good step. Special Courts are required by statute to allow quick trials in CSA cases. The article focuses on the anticipated advantages as well as the unforeseen effects that may result from the law’s adoption in India.

Without a question, the passage of POCSO has been a significant step forward in ensuring children’s rights and promoting the cause of protecting children from sexual abuse, especially when combined with the Prohibition of Child Marriage Act 2006, which prohibits child weddings. The legislation, which defines a child as anybody under the age of 18, is intended to protect minors from sexual assault in both text and spirit.

Criminalizing any sexual behavior before the age of 18 years old, on the other hand, might be problematic. POCSO raises three major concerns in this paper: age of consent, age determination, and obligatory reporting; issues that illustrate how well-intentioned legislation may have unanticipated negative repercussions.

The CSA has been generally neglected in public debate, and the criminal justice system has rarely taken it seriously. India is home to about 19 percent of the world’s youngsters. The Indian government pledged to safeguard all children from all types of sexual exploitation and abuse when it signed the United Nations Convention on the Rights of the Child in 1992. The Convention places the burden of proof on the state to protect a child from being coerced or induced into engaging in illegal sexual behavior.

While children of both genders are vulnerable to CSA, it is frequently the girls who are the most vulnerable to sexual abuse. Child sexual exploitation and abuse are directly linked to India’s widespread poverty. In India, the majority of CSA instances are committed by someone who knows the kid or is in a position of trust and responsibility. Because of societal shame and family honor, most youngsters do not report the abuse to anybody.

Sexually abused children in India are frequently let down by the criminal justice system’s recurrent inability to address concerns connected to CSA and the social ostracism that follows the abuse. Individual experiences are neglected in order to preserve the family name and honor from the humiliation that comes with sexual assault, which is not unique to India. It is widespread in most other Asian nations as well.

In India, there are legal provisions against child sexual abuse.

The Protection of Children against Sexual Offences Act, 2012 (POCSO Act) was enacted as a result of a movement spearheaded by the Ministry of Women and Child Development to combat the threat of child sexual abuse in India. The Act was created with the goal of criminalizing a variety of crimes, including child rape, sexual assault, sexual harassment, and minor-related pornography. The act calls for the creation of Special Courts to guarantee that cases of child sexual abuse are dealt with quickly. Without a doubt, the passage of POCSO was a significant step forward in protecting children’s rights and ensuring that they enjoy a secure upbringing.

POCSO’s distinguishing characteristics

The law’s purpose and intent are to protect minors from sexual abuse. The POSCO Act of 2012 stipulates harsh penalties ranging from simple to rigorous imprisonment of various sorts and durations, depending on the seriousness of the offense. There are additional fine provisions, which are determined by the Court depending on the facts and circumstances of each case. When a person in a position of trust and responsibility for a juvenile or members of society such as security personnel, police officers, public workers, etc. commits an aggravated act, it is termed an aggravated offense. The legislation does not utilize the term rape to describe sexual offenses, nor does it limit sex to just penetration.

Instead, the legislation expands the definition of penetrative sexual assault to encompass oral sex, as well as the insertion of any instrument into the anus, mouth, or vagina, as well as penile intercourse. POCSO also classifies a variety of actions as sexual assaults that may not include penetration (section 7). Additionally, when committed by a specified range of perpetrators, in a wide range of situations or conditions, and/or has a severe impact on the victim, the offenses of ‘aggravated’ penetrative and non-penetrative sexual assault are made more serious and attract stronger penalties (sections 5, 9) and attract stronger penalties.

This includes gang rape, causing grievous bodily harm, threatening with a firearm or corrosive substances, assaulting a child under the age of 12 years old, or assaulting a child who is physically or mentally ill. The definition is quite thorough and covers a wide range of circumstances. POCSO is also forward-thinking in many ways, such as the definition of sexual harassment, which includes following, watching, or contacting a child repeatedly or constantly, whether directly, electronically, or through other means [section 11(iv)], thus covering incidents of sexting or sexual cyberbullying.

However, POCSO 2012 leaves open the question of what constitutes ‘repeatedly’ or ‘constantly’ following or contacting a child with sexual intent (with the law stating that sexual intent is a ‘question of fact’). As a result, the interpretation of what constitutes ‘repeatedly’ or ‘constantly’ following or contacting a child with sexual intent is potentially contestable. The Act is unique in that it punishes the aiding or abetting of any of the crimes specified in the preceding sections (section 16). The presumption of guilt of the accused unless proven innocent is another “exceptional provision” in the Act (section 29). In view of some of the arguments made below, this area of law lends itself to complications (Andrade and Rao 2013).

Synopsis

POCSO 2012 has unquestionably made a big contribution to India’s CSA problem. It has recognized and criminalized a number of inappropriate sexual behaviors that endanger children. The number of reported instances is quickly growing, suggesting that the law has made a significant contribution to public education, sensitization of the criminal judicial system, and making CSA reporting not only acceptable but also essential.

The law is quite thorough and includes certain unique characteristics. However, three major concerns outlined in the letter and spirit of the law might provide implementation challenges in the Indian setting. Inflexibility in the age of consent for sex under the age of 18; obligatory reporting duties; and the inexact nature of age determination are the concerns. Furthermore, the Indian government’s intention to prevent child weddings and protect vulnerable children, as reflected in the Prohibition of Child Marriages Act 2006 and POCSO 2012, should dissuade underage marriages. Given the issues outlined above, and in a context where social and cultural norms continue to allow, if not actively encourage, child marriages, the potential for waste and resource loss cannot be overlooked.

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