Professional Documents
Culture Documents
Introduction
Introduction
INTRODUCTION
“A nation’s children are its supremely important asset and nation’s future lies in
their proper development. An investment in children is indeed an investment in
future. A healthy and educated child of today is the active and intelligent citizen of
tomorrow.”
- Rabindra Nath Tagore 1
Our Children are the citizens of tomorrow. They are the future of the nation. Still, in
age of innocence, they are being assaulted. Child sexual abuse is a crime so common,
so hideous and yet, completely unspoken about within the Indian society. ‘Children’
in any society, constitute the most vulnerable which needs ‘protection’ and they are a
vulnerability that has made them pawns in the society. In the recent era, the social
Children are precious treasures of the future and they are the most valuable assets of a
nation and society. From the data available, an analysis of severe form of sexual abuse
arranged age – wise revealed that sexual abuse crossed the 5% mark from the age of
10 years, peaked at 15 years and by the time reached 18 years, went below the 5%
marks. 73% of the total incidence of the child sexual abuse as reported among
adolescent child seem to be the most at risk. It is also disturbing to note that children
1
“Juvenile Deviations And Protection in the Context of the Juvenile Justice Act, 1986”, Indian Journal
of Criminology and Criminalistics, 25(1-3), 2004 at 6-14.
2
National Consultation on Children in India - Priorities for the 11th Plan, New Delhi, 10 January 2015.
Available at: http://www.tntrc.org/downloads/draft_report_of_Consultation_March_1.doc p. 28 Last
visited:12 January 2014.
1
between 6 and 10 years also face severe forms of sexual abuse 3. It is the duty of State
to look after them with a view to ensure the complete development of their
personalities. Since society expect them to grow as responsible citizens of the future,
they need special care, protection, affection and facilities because of their tender age,
that future well being of a particular nation depends upon how the children grow and
develop. 4
India is home to the largest number of children in the world. Nearly every fifth child
in the world lives in India. There are about 43 crore children in the age group of 0-18
years; 16 crore children are in the age group of 0-6 years, of this there are 8.5 Crore
males and 7.88 Crore females. In the age group of 6-18 years, there are about 27
Crore children. It is estimated that about 40 per cent of children are in difficult
children forced into labour, abused /trafficked children, children on the streets,
The Supreme Court of India in Sheela Barse and Other v. Union of India5 has
declared that a child is a national asset. In Indian scenario a child requires proper care,
love, affection and nourishment but experience shows that the children are subjected
of proper care and attention and lack of love and affection of the parents.
3
Study of Child Sexual abuse: India 2007Ministry of Women and Child development, GOI pages 74,
75 and 76.
4
Lakshmi Kant Panday v Union of India, 1984(2) SCC 244
5
AIR 1986 SC 1873.
2
Nonetheless, we know that for various social and cultural reasons, children and
adolescents suffer violence in the home, at school, in legal and child protection
systems, at work and in the community. Thus, children and adolescents are abused
precisely in those spaces and places that should offer them protection, affection,
developmental stimulation, shelter and promotion for their rights. One of the factors
that make them highly vulnerable is their lack of autonomy due to threat to society”
may be abused by the police. Children and adolescents, especially girls, may also be
Evidence suggests that only a small part of the violence perpetrated against children is
reported to the legal system and investigated by the authorities, and few offenders are
brought to trial. Furthermore, while in many places in the world there are no reliable
systems for filing complaints, there are estimates that every year 275 million children
around the world are the victims of violence in their households, and some 40 million
persons under 15 suffer violence, abuse and neglect. These incidents are reportedly
The India Constitution recognizes the child’s right to special protection and support
from the State. However, the growing incidence of violence against children,
especially sexual violence / abuse is a disturbing trend and raises an alarm. What is
even more disturbing is the shrinking spaces for children’s adequate growth and
development.
There is no place that can be said to be safe for children today. Even a child’s own
promote the welfare of the child, and secondly to prevent the abuse of the other
children in the community. Our law and legal system is failed to provide the
It is also very essential that government be committed to implement and enforce such
laws to provide the actual protection to the children. India has several child related
laws. The absence of implementation and political commitment are the main causes
why children in India are not enjoying the benefits of the laws enacted to promote and
protect their rights. Law enforcers and politicians are known to protect and support
pimps, brothel owner and traffickers in exchange for monetary consideration, and
and international co-operation are needed to effectively combat sexual abuse and
exploitation of children to protect and punish the abuser and exploiters. Penal action
alone cannot comprehensively solve the problem. While the abusers and exploiters are
undergoing their sentences reformation should be ensure that they should not repeat
the same offence once they are released and again in contact with children.
professionals working with children, such as police, judges, social workers, doctors,
teachers etc. To educate the public on the child rights issues is also necessary; it will
empower the person on the street to act in an informed manner in a child related
exigency.
4
In India, the State assumes the role of parens patriae, of a protective benevolent
parent, taking care of the citizenry in general and the marginalized and vulnerable
population in particular. This is more so in case of children, who are indeed weak and
vulnerable, innocent and often ill informed, pliant and gullible, and therefore, almost
always a subject of abuse of the power vested in adults. They seldom have a voice
The difference between child and other persons in the community is that the
child is not able to demand, has no capacity to form unions, is incapable of speaking
out when very young and therefore, public opinion in regard to the rights of the child
is that the rights are not supposed to be claimed by the child itself. It is necessary to
be done by those who are responsible for taking care of the child and therefore,
whether we are able to implement rights of the children depends upon our outlook, to
Economic, social and cultural values are required to fundamentally alter to give
children their deserved values and upbringing. The government, non- government and
local authorities play a vital role to provide the support and assistance in caring of the
children. The existing laws should not merely remain on the paper but should be
properly implemented to provide benefit those for whom the laws are enacted.
The idea that children have rights as human rights is fairly modern. The ancient world
tended to view children’s right at par with those of animals rather than adult human.
The earlier historical trace can be found in Babylonian and Roman culture where
8
National Consultation on Children in India - Priorities for the 11th Plan, New Delhi, 10 January
2015. Available at: http://www.tntrc.org/downloads/draft_report_of_Consultation_March_1.doc p.
28 Last visited: 10 January 2015
5
children were under the control of the society which made them conform to the
Child Sexual Abuse remains a taboo but it’s a very real problem in India, and the
situation is aided by the absence of effective legislation and the silence that surrounds
the offence. Majority of people feel this is a largely western problem and does not
happen in India. India is second most populous country in the world and latest Census
2011 reveals that it’s a home to 17% of the world's population. Nearly nineteen
percent of the world's children live in India, which constitutes 42 percent (more than
one third) of India’s total population and around 50 percent of these children are in
Child sexual abuse became a public issue in the 1970s and 1980s. Prior to this point in
time sexual abuse remained rather secretive and socially unspeakable. Studies on the
child molestation were non-existent until the 1920s and the first national estimate of
the number of the child sexual abuse cases was published in 1948. By 1968, 44 out of
50 US States had enacted mandatory laws that required physician to report cases of
suspicious child abuse. Legal action began to become more prevalent in the 1974 in
conjunction with the creation of the national Centre for Child Abuse and Neglect.
Since the creation of the Child Abuse and Treatment Act, reported child abuse cases
have increased dramatically. Finally, the National Abuse Coalition was created in
Second wave feminism brought greater awareness of child sexual abuse and violence
against women, and made them public & political issues. The first published work
Legal Studies of Sexual Assault (Etude Medico-Legale sur les Attentats aux Maurs),
by Auguste Ambroise Tardieu, the noted French pathologist and pioneer of forensic
6
medicine. Judith Lewis Herman, Harvard Professor of Psychiatry, wrote the first
book ever on father daughter incest when she discovered during her medical residency
that a larger number of the woman had been victims of father-daughter incest.
Herman notes that her approach to her clinical experience grew out of her
involvement in the civil rights movement. Her second book ‘Trauma and Recovery’
coined the term complex post- traumatic stress disorder and include child sexual
In ancient Indian law, especially in the Laws of Manu, the child though located very
near the bottom of a social pyramid was bestowed society’s protection. And, this
protective indulgence was best reflected in matters which concerned the children most
– namely, their chastisement. Children were only to be beaten with a rope or bamboo
stick split at the end. The split bamboo, as we may remember from circus clowns’
mock fights, makes a loud noise but does not inflict much pain. Moreover, even this
punishment was to be carried out only on the back and never on the head or the chest.
All those who hold progressive views on child discipline, the beating of children may
hardly seem like ‘protective indulgence’. Nonetheless, the extent of this indulgence
becomes strikingly clear when we compare Manu’s Laws with legal texts of other
ancient societies where brutal forms of child abuse and maltreatment existed.
In 1986, Congress passed the Child Abuse Victims’ Right act, giving children a civil
claim in sexual abuse cases. The number of laws created in the 1980s and 1990s
began to create greater prosecution and detention of child sexual abusers. During the
1970s, a larger transition began in the legislature, relating to child sexual abuse.
Megan’s Law which was enacted in 2004 gives the public access to knowledge of sex
offenders nationwide.
7
In India and in western countries many laws have been framed in order to curb the
child exploitation whether the sexual, emotional/ psychological, physical, but still
children are facing the exploitation. Many NGOs are working for the upliftment of the
children in all over the world but still it needs to pay lots of attention in order to stop
undertaken under the auspices of the United States Central Intelligence Agency,
estimated that 45 000–50 000 women and children are trafficked annually to the
United States. Over 150 cases of trafficking were prosecuted between 1996 and 1999
cases of rape per lakh population increased to 2.8 in 2010 from 2.65 in 2009. The
figure was 4.16 in 2005 and 3.82 in 2006, the highest in the last decade. Of the
persons arrested for rape, 52 were relatives, 65 were friends, 222 neighbours and 130
were other known persons. In only 20 cases, rapes were committed by strangers.
Neighbours were accused in 42% of the molestation cases while 4% were friends and
6% relatives.
Signing up to the United Nations Convention on the Rights of the Child, India
promised to protect its children from all forms of sexual exploitation and sexual
abuse. Article 34 (a) of CRC enjoins state machinery to prevent the inducement or
Across the country, every second child was being subjected to other forms of sexual
abuse and every fifth child was facing severe forms of sexual abuse. The Study also
acknowledges that child sex abuse takes place in schools. One out of two children in
schools has faced sexual abuse. And overall, more boys than girls face various forms
students often bring pornographic material to school and may force a younger boy to
look at it to titillate them. Several factors combine to magnify the impact and
occurrence of child sexual abuse in Indian country. First, the risk factors that
contribute to the incidence of child sexual abuse are greater on Indian reservations
than in any other kind of community. These factors include poverty, unemployment,
Historically, criminal sexual violence in India has been understood through the
traditional language of rape. Originating in the 1860’s, at a time when women had no
influence over the shape or substance of legislation affecting them; the rape law
remained on the statute books for 123 years before any attempt was made to challenge
it. When reform has been sought, it is commonly in reaction to a highly publicized
occurrence. For instance, 1983 witnessed the gang rape of a tribal girl within the
precincts of a police station. At the time, the girl’s boyfriend and family members
were standing outside the station. The Supreme Court of India branded the
‘resist’ implied consent to the abuse. Uniquely, the case evoked national level
outrage. The immediate community within the precincts of the police station
compelled registration of the case, the media reacted sharply to the Courts comments
and prominent legal academics demanded review of the case. Rather than respond, the
Court directed all towards law reform. The case is a classic picture of myths and
The eighties became a decade in which most aspects of violence against women
resulted in law reform. Yet from the start, law reformers were less inclined to
articulate the goal of such reform and resorted instead to ad hoc, band-aid
9
amendments. With the result, consent was never defined, past sexual history was
retained and the police were absolved of accountability in failing to register cases.
That response pattern has been characteristic of law reform ever since. In twenty
years, perceptions of women and sexual violence remain the same; myths and
The problem of child sexual abuse has attracted a great deal of attention in recent
years. Millions of children are victims of trafficking and sexual exploitation each
year. Sexual offences are currently and mainly covered under different section of the
Indian Penal Code. There are number of International and National conventions to
which India is signatory for protection of Children from Sexual offences. Despite the
governments, these efforts, while important, have done little to reduce the incidence
of child sexual exploitation. In the backdrop, to strengthen the legal provisions for the
protection of children from sexual abuse and exploitation for the first time, a special
law for the Protection of Children from Sexual Offences Act 2012, has been passed.
A UNICEF study titled 'Hidden in Plain Sight', which looks at child abuse across the
world, says the close to 42 percent of all girls in India have faced some sort of sexual
According to a Times of India article, data from the study showed that 10 percent of
Indian girls would have faced sexual violence when they are aged 10-14, and 30
percent in the 15-19 age group. Additionally, the data shows that close to 77 percent
of the girls in the age group of 15-19 faced sexual violence from their current partner
10
or husband. In 6 percent of cases, the perpetrator was a relative, while 4 percent said it
was friend or acquaintance who sexually assaulted them. Cases of stranger rape or
sexual violence in India for the age group stood at mere 3 percent.
The numbers indicate that for most girls growing up in India, sexual violence is fairly
common and that in most cases it is not strangers but rather husbands or partners that
The study assumes that child sexual abuse in India, as in other developing societies
is a phenomenon which is widespread and cut across ethnic, social and economic
phenomenon of the child sexual abuse in India and in other western countries, with
sexual abuse and to address related issues through community based programme
intervention.
• To assess the magnitude and forms of child sexual abuse in India and
Western countries.
• To study the profile of the abused children and the social and economic
9
‘The Times of India’ 12 September, 2014.
11
1.4 HYPOTHESIS
1. There are no cases of child sexual abuse in India and in Western countries.
sexual abuse
7. There is no effect of child sexual abuse on the health and mental condition of the
child.
This research uses a case study of child Sexual Abuse International documents
especially the human rights conventions, for instance the CRC, have provided
direction of this debate. Books and academic journal articles were extensively used.
The research design is based upon multi disciplinary, as it includes considering child
sexual abuse from legal and social perspective, comparative, as it compares Indian
legal system with those of the world, exploratory, as it explores traces and evidences
of child sexual abuse in history and various dimensions of fact of child sexual abuse
system.
12
1.6 RESEARCH DESIGN
In order to accomplish the task the study will be divided into eight chapters to enable
1.7 DEFINITION
Prior to the enactment of the Juvenile Act 1986, each state has its separate children’s
act. Every child’s act differed in its content, including the definition of the child. A
child is defined as any person who is above 18 years of age 10. This definition has been
used as the marked parameter for defining children the world over. Even in India the
definition of children matches it as, children are taken to be any person domiciled in
India who have not yet completed 18 years of age. 11 And yet this definition is subject
to many discrepancies of the law. In many places the definition of child differs and it
considered being girls reach majority at the age of 18 years and boys at the age of 21
years. And in many labour law regulation a child is any person who has passed 14
years of age 12. These discrepancies are the root cause for the exploitation of laws that
adult in which the child is being used for the sexual stimulation or the gratification of
position of power or control over a child are considered sexual abuse 13.
Sexual abuse of children most often occurs in private and has far reaching
feelings of helplessness, confusion, anger, aggression, guilt and betrayal in the victim.
10
Article1, U.N Declaration on the Rights of Children, 1989.
11
The Indian Majority Act, 1875.
12
http://infochangeindia.org visited on 15th may, 2013
13
Sloan Irving J, (Ed.), CHILD ABUSE: GOVERNING LAW AND LEGISLATION, Oceana
Publication: New York, 1983. p. 6
13
Since disclosure is the initial step in the child’s healing process and often precipitates
intervention, the circumstances and manner in which disclosure occurs and is handled,
is critical. The nature and manner of disclosure and the response to it has a bearing on
the trauma to the child, the child’s response to counseling and the conduct of
Every Indian law has its own definition of the term ‘child’.
CRITERIA
The Child Labour (Prohibition and completed his fourteenth year of age.’
The Prohibition of Child Marriage Act ‘Child means a person who, if a male, has
14
and, if a female, has not completed
The Plantation Labour Act 1951 ‘Child' means a person who has not
The Motor Transport Workers Act 1961, A child as a person who has not
The Protection of Children from Sexual years and provides protection to all
United States, The Centre for Disease Control and Prevention (CDC) 14 defines child
caregivers that results in harm, potential for harm, or threat of harm to a child. Most
child abuse occurs in a child’s home, with a smaller amount occurring in the
14
www.cdc.gov › Violence Prevention › Sexual Violence accessed on 23rd August 2013.
15
The World Health Organisation 15, “Child maltreatment, sometimes referred to as
child abuse and neglect, includes all forms of physical and emotional illtreatment,
sexual abuse, neglect, and exploitation that results in actual or potential harm to the
child's health, development or dignity. Within this broad definition, five subtypes can
The Child Abuse Prevention and Treatment Act (CAPTA 16) defines child abuse and
neglect as:-‘ ‘Any recent act or failure to act on the part of a parent or caretaker,
harm’. 17
below the age of consent may be deemed to have been sexually abused when a
sexually matured person has engaged or permitted the engagement of that child in any
There are various forms in which child abuse presents itself. The four categories of
child abuse are physical abuse, sexual abuse, emotional abuse and neglect. Every
millions of children are forced to suffer the atrocities of child abuse. Be it simply ill
treatment of the horrors of exploitation and brutality. They are enforced into human
trafficking for prostitution rackets. In terror prone regions, they are kidnapped from
their homes and schools and lose their innocent childhoods in the army to witness the
brunt of cruelty. They are enforced into debt repression or other kinds of slavery.
15
www.yesican.org/definitions/who.html accessed on 21st May, 2014.
16
https://www.childwelfare.gov. accessed on 22nd June, 2013.
17
CAPTA Reauthorization Act of 2010 (P.L. 111-320), § 3.
18
www.researchgate.net/ accessed on 13th May, 2013.
16
The result of these abuses are even more horrific; besides contravening the
fundamental rights of children like the right to education, the abuse also poses a threat
to their physical welfare and mental health. Despite the fact the world is aware of
these atrocities and is outraged by them none the problem. The abuses meted out to
children are ones that are done in private. They are the kind that are, to be put simply,
While certain child abuse and neglect issues are common in almost all countries at the
global level such as physical abuse, sexual abuse, emotional and psychological abuse,
abandonment and, increasingly, problems of street children, there are also many
issues which are prevalent only in certain regions of the world. For instance, in Asia
where population density is high, the issues of child labour and child sexual
exploitation are also high. Political instability and other internal disturbances,
including conditions of insurgency in many countries in Asia are also creating major
Prevention of child abuse and neglect is still an uncharted field in Asia. The largest
population of children in the world live in South Asia and majority of these children
lack access to proper health care, nutrition and education. This reflects the socio-
economic reality of the developing countries of the Asian region. The main factors
that contribute to the magnitude of the problem of child abuse are poverty, illiteracy,
Mostly, the approaches for prevention and methods of treatment of child abuse do not
cover the entire gamut of abuse. Lack of reliable data on the incidence of child abuse
and of knowledge of methods of prevention and treatment has been recognized and is
17
being addressed by sovereign governments, national and international organizations
UNICEF has put down 6 situations in which child get abused 19.
survey that revealed a shocking statistic. An estimated 300 million children are
exploited as child labour. To worsen the fact, around 200 million children are
compelled to work in perilous environment with at least safety norms like mines or
pesticides. There are some 6 million children working under particular terrible
Human Trafficking – The use of children as a service for the purpose of cheap labour
or sex has become a rewarding trade around the world since ages. Every year, an
estimated 1.2 million children are illegally trafficked for these heinous purposes. It is
also related with the poverty of parents and often they are not aware of its hazards,
believing that their children might have the chance for a better life outside their own
poverty ridden lives. In Asia and Eastern Europe, young girls from the age of 12 are
trafficked in western Asia as ‘Potential Brides’ to satisfy the lures of few. Many girls
are lured and then compelled to work in flesh industry every coming days.
significant number of boys are exploited every year in the multibillion dollar flesh
trade. Commercial sexual abuse of children is often initiated and encouraged by local
elements. Statistically, sexual tourism plays very minor role, contrary to the earlier
child pornography globally and this has become a cause of concern. Studies have
relieved that children are most often sexually abused by their closed ones.
19
www.wcd.nic.in/teachershandbook.pdf accessed on 13th June, 2014.
18
Children Who Are Used As Soldiers – Reports of UNICEF studies have shown that
around 2 million children have died as a direct result of war, armed conflict over the
last decade. At least 6 million children are suffering from serious injuries or they are
eight, are exploited in armed conflict in more than the world 30 countries around.
Separation from Parents – Children that are deprived of their primary means of
protection. This category includes children who have lost their parents or care takers
boarding schools, and psychiatric units. Separation from parents and family is usually
Involuntary separation from both family and community protection, greatly increases
Violence from School to Homes – Various forms of punishment and torture are a
common thing to locate. It occurs in every strata of community. The result is more
disturbing. They carry this plan and burnt throughout their life. This type also carries
It is important to look at the statistics of child abuse as they will give a more
alarming rate considering the evolved times of today. Communities and the courts
recognize that these emotional ‘hidden bruises’ can be treated. Whenever a child says
he or she has been abused, it must be taken seriously and immediately evaluated.
instrument and national laws, in reality children across the globe continue to
19
experience a multiplicity of human rights violations, often at the hands of the very
people are aware and which they deserve by the very fact of existence. Though the
children cannot claim rights for themselves, they may exercise their rights by proxy,
behalf. The universality of human rights as the rights of all mankind - as the rights of
all members of the human family is the foundation of freedom, justice and peace in
the world which alone can enable any one, rich or poor, man or woman, child or old
disabled or sick, to live with human dignity. The concern for mankind expressed
unequivocally and transcending the globe will be real and moving and not rhetoric
and ritual if and only if it begins with children, as, to repeat the words of Nehru, the
human being counts much more as a child than as a grown up. The concern will be
clearly steered towards the chanced ideal of freedom; equality and justice to all the
human beings only if it sweeps the voiceless as well. A child is a delightful bundle of
Human rights are those rights derived from the inherent dignity of being born a
human being. These basic rights are essential to enable an individual to lead an
adequate life. Children easily become the victim and if children had rights, redress
would be possible. Although, children cannot claim their rights for themselves, other
can intervene to enforce these rights. The lives of children are a public concern which
World over a climate and cultural of violence has penetrated the lives of our children.
And this violence has invaded all the domains. Arguably this is not a recent
20
immemorial. It is in fact deeply entrenched and legitimized by legal, religious, social,
One of the issues marring this vision for the country’s future generations is the evil of
child sexual abuse. Statistics released by the National Crime Records Bureau reveal
that there has been a steady increase in sexual crimes against children. According to a
study conducted by the Ministry of Women and Child Development in 2007, over half
of the children surveyed reported having faced some form of sexual abuse, with their
suffering exacerbated by the lack of specific legislation to provide remedies for these
crimes.
Child abuse constitutes a violation of the most basic rights of children and
adolescents, which are enshrined in the Universal Declaration of Human Rights. All
persons under the age of 18 have the right to physical and psychological integrity and
to protection from all forms of violence. Children have distinctive rights, such as the
right to receive primary education, the right to recreation, the right to adoption etc.
Article 19 of the Convention on the Rights of the Child (CRC) adopted by the United
administrative, social and educational measures to protect the child from all forms of
legal guardian(s) or any other person who has the care of the child”. Similarly, the
United Nations International Committee on the Rights of the Child has emphasized
the importance of member countries prohibiting all forms of physical punishment and
degrading treatment of children (CRC, 2006). The Convention on the Rights of the
Child legitimizes the concept of child’s rights. The Convention is the first globally
binding treaty protecting children civil, political, economic, social and cultural rights
21
during peacetime and armed conflict. It also recognizes child rights as a political
22