Children Are the Future: Protect, Don’t Abuse – Safeguarding Society from Child Sexual Abuse Through Strong Legal Measures

Mrittika Sengupta

December 2024

Abstract

Child sexual abuse (CSA) is a critical issue with severe societal consequences. This blog piece explores the need for robust legal frameworks to protect children, focusing on India’s Protection of Children from Sexual Offences (POCSO) Act and international conventions. Key aspects include a comprehensive definition of abuse, child-friendly procedures, mandatory reporting, and appropriately enforced penalties, though caution must be exercised in calling for overly stringent punishments, as highlighted by the Justice Verma Committee, which noted that harsher penalties, including the death penalty, may not necessarily lead to a reduction in cases of child sexual abuse, rape, or gang rape.

The blog piece here to addresses challenges in enforcing CSA laws, such as social stigma and delayed justice, and highlights judicial interpretations and international standards. Recommendations include faster legal processes, enhanced victim support, and inclusive policies. The fight against CSA requires strong laws, effective enforcement, and collective societal efforts to safeguard the future.

Despite the POCSO Act, Loopholes in India's Legal Framework Still Endanger Child Safety

The POCSO Act of 2012 was brought into force to tackle issues related to sexual abuse of minors in India, filling the gaps in the Indian Penal Code (IPC), which did not have adequate provisions addressing offenses particularly aimed at protecting minors. The Bharatiya Nyaya Sanhita (BNS) includes specific provisions for child sexual abuse. It uses gender-neutral language by referring to "child" instead of "minor girl" in cases like Section 366A of the IPC, covering both boys and girls under 18. Clause 95 penalizes those who hire or engage children under 18 to commit crimes, with the same punishment as if the child had committed the offense. Clause 135 makes kidnapping of all children under 18 an offense.

The BNS includes a dedicated chapter on offenses against children, enforces stricter penalties for crimes involving minors, and outlines different punishments for various forms of rape and gang rape based on the victim's age. This reflects India's progress towards fulfilling its commitment to the UN Convention on the Rights of the Child (CRC) and marks a positive step forward, influenced by advocacy efforts from NGOs.

The “POCSO Act”  while a significant step towards protecting children from sexual offenses in India, has faced several challenges and shortcomings in both domestic implementation and alignment with international standards.

Domestic Failures

1. Despite mandatory reporting requirements, ‘under-reporting remains prevalent due to the social stigma surrounding sexual abuse, with many cases, especially those involving family members, going unreported as victims and families fear societal consequences.’          

2. Despite POCSO's provisions for special courts and child-friendly procedures, the slow judicial system and backlog of cases lead to delayed trials and justice, forcing many victims to endure prolonged legal battles and additional trauma.

3. Enforcement of the POCSO Act is inconsistent across India, with rural areas particularly struggling due to limited awareness, inadequate resources, and insufficient training for law enforcement officials, leading to poor implementation.

4. ‘While the POCSO Act prioritizes victim protection, rehabilitation and support services, such as counselling, shelter homes, and social reintegration programs, are often under-funded or poorly managed, leaving many survivors without adequate psychological or emotional support.’

5. Although the POCSO Act covers a broad range of offenses, it lacks sufficient provisions to address online sexual exploitation, grooming, and trafficking, which have become major concerns in the digital age, necessitating updated measures to tackle these evolving forms of child exploitation.

Failure to Comply with International Standards

1. Despite India ratifying the UN Convention on the Rights of the Child (CRC), gaps remain in POCSO's implementation of child rights protections, as its trial delays and enforcement shortcomings do not fully align with the CRC’s emphasis on the child’s best interest.

2. While international norms like the CRC emphasize both the prosecution of offenders and the prevention of child sexual abuse through awareness, education, and community involvement, POCSO mainly focuses on punitive measures and lacks comprehensive prevention strategies.

3. “Although POCSO outlines child-friendly procedures, global child protection frameworks emphasize the need for specialized training for police, judiciary, and social workers, ‘which many officials still lack, leading to secondary victimization of child victims during investigations.’

4. While international conventions, including those from the ‘UN Committee on the Rights of the Child’, emphasize addressing the impact of factors like gender, caste, class, and disability on access to justice, POCSO falls short in considering these intersections, often leaving marginalized children without adequate protection or redress.

5. Although international standards highlight the importance of robust mechanisms to combat ‘cross-border child sexual abuse’ and ‘online exploitation’, the POCSO Act lacks sufficient provisions to effectively address these emerging challenges, leaving India lagging in the fight against global child exploitation networks.

Healing Children's Pain: Legal Measures as Medicine for Their Wounds

Implementing and enforcing child sexual abuse (CSA) laws faces significant universal challenges in both SAARC countries and the UK due to socio-cultural and systemic issues. In India, the 'Nirbhaya' case highlighted societal norms that prioritize family honour over justice, causing delays in reporting due to fear of backlash. Similarly, Bangladesh’s “'Mithu Begum' case (Supreme Court of India. (2019). Mithu Begum v. State of West Bengal, (2019) 3 SCC 654).”  [i]showed how stigma and traditional beliefs can prevent victims from seeking help. In Pakistan, gender bias and patriarchal attitudes, exemplified by the murder of “Qandeel Baloch (Qandeel Baloch v. State, 2017),” exacerbate these issues by discouraging CSA reporting and leading to inadequate legal responses. The UK, despite having an advanced legal framework, faces challenges such as those revealed in the “Rotherham child sexual exploitation scandal (Rotherham Metropolitan Borough Council v. Various Defendants, 2014),” where lack of cultural competence led to underreporting and inadequate victim protection, and disparities in support services between urban and rural areas further complicate timely assistance for survivors. Here are potential solutions to the challenges and shortcomings of the POCSO Act:

Domestic Failures

1. To address underreporting due to social stigma, it is essential to launch extensive awareness campaigns in communities, schools, and families to diminish CSA stigma, and to create safe, anonymous, and accessible reporting channels that encourage victims and their families to report without fear of societal repercussions.

2. To address delayed trials and judicial backlog, it is crucial to expand the number of special courts for POCSO cases, expedite trials through case management reforms, and offer support services to victims during prolonged legal proceedings to reduce trauma.

3. To address inconsistent enforcement in rural areas, it is necessary to improve training for law enforcement officials, increase resources, and establish local child protection units to enhance awareness and capacity for handling CSA cases.

4. To address inadequate rehabilitation and support services, it is important to increase funding and improve management of services like counselling, shelter homes, and reintegration programs, while partnering with NGOs and mental health professionals for comprehensive, continuous support for survivors.

5. To address the lack of provisions for online exploitation, grooming, and trafficking, the POCSO Act should be amended to include specific measures for these issues, and efforts should be strengthened through collaboration with cybercrime units, international agencies, and tech companies to effectively tackle these digital-age crimes.

Failure to Comply with International Standards

1. To close gaps in compliance with the CRC's focus on the child's best interest, POCSO should be better aligned by ensuring timely trials, strengthening enforcement, and implementing accountability mechanisms and alternative dispute resolution methods to expedite cases without sacrificing justice.

2. To address the lack of comprehensive prevention strategies, it is essential to create and implement nationwide CSA prevention programs emphasizing awareness, education, and community involvement, and to integrate these initiatives into schools, community centres, and public platforms alongside existing punitive measures.

3. To address inadequate training, mandate regular updates to specialized programs for police, judiciary, and social workers on child protection and trauma sensitivity, and establish monitoring bodies to ensure effective application.

4. To address failure in intersectionality, amend POCSO to incorporate factors like gender, caste, class, and disability, train stakeholders to recognize these issues, and create targeted outreach and support programs for marginalized groups to ensure equal justice. To enhance the POCSO Act's effectiveness, proposed amendments could include definitions for "marginalized groups" and "vulnerable children," explicitly recognizing unique vulnerabilities in Section 3. This would mandate training for stakeholders on intersectionality, establish targeted outreach programs for marginalized communities, and ensure culturally sensitive support services for victims. Such legal provisions aim to address systemic inequalities and provide tailored justice for all children, particularly those from marginalized backgrounds.

5. To address insufficient mechanisms for cross-border and online child exploitation, enhance international cooperation, establish a global task force, and amend the POCSO Act to improve coordination with international agencies and law enforcement.

About the author

Mrittika Sengupta is an Assistant Professor of law at the Institute of Engagement: Techno India University, West Bengal (India).