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Report No. 156

V. Child Sexual Abuse

9.52. Child sexual abuse (CSA) is considered one of the 'new' epidemics of the last decade. CSA could be any kind of "physical or mental violation of the child with sexual intent usually by an elder person who is in possession of trust or power vis-a-vis the child"1.

The experience may vary from an adult exposure of genitals to the child or to persuade the child to do the same, the adult touching the child's genital or making the child to touch his own, involving the child in pornography - both printed and visual, having oral, vaginal or anal intercourse with the child, making verbal or other sexual suggestions or indecent overtures. In addition, fondling or fingering, touching or voyeurism or any such attempt could also be CSA.2

1. Child Sexual Abuse, literature by 'Sakshi', New Delhi.

2. Schwartz, Horovitz and Cardarelli Child Sexual Abuse, pp. 58-59 (Sage Publications, 1990).

9.53. According to the statistics reported in Crime in India, of the total victims of rape cases, children accounted for more than 25 per cent. There is an increasing trend since 1990 as regards child rape.

While 3,393 cases of child rape were reported in 1993, it increased to 3,986 in 1994. Giving the state-wise incidence of child rape, the Report says Madhya Pradesh led in reporting the highest number of 809 child rape cases, followed by Uttar Pradesh (538), Rajasthan (205) and Delhi (206) in 1994. Among the cities, Delhi and Mumbai reported more victims of child rape in the age group below 10 years and also in the age group of 10-16 years.1

While conducting the study of CSA in Delhi, the Delhi Police found that information regarding the offences of molestation or outraging of Modesty (section 354, I.P.C.) and unnatural sex offences (section 377, I.P.C.) committed on children below 16 years was not readily available. Information was collected for 1994 wherein a total number of 291 cases was recorded out of which 69 girls were below 16 years. (31%). In respect of unnatural offences, out of 24 cases, there were 22 boys and 2 girls indicating that 95.9% of the victims were children below 16 years.2

It is difficult to get hard data on the extent of CSA in the country. But there is a silver lining in the horizon. Some NGOs have undertaken studies on CSA and preliminary findings are none too happy. Samvada, a Bangalore based NGO found, in a study of 348 college girls, that 47 per cent. of students had been subjected to sexual abuse. About 45 per cent. had experienced such abuse before the age of 14. The most common offender was a known male family member.

Similar are the findings of Sakshi, a Delhi based NGO in a study made of 357 girls of government and private schools. It was found that 63 per cent. of the children had suffered some form of sexual abuse, about 22 per cent. suffered serious sexual abuse and in 29 per cent. of the cases, the abuse was by a person whom they trusted fully. In their analysis of 19 cases of CSA in 1995 it was found that in majority of the cases, the victims were children between one and twelve years.

1. Amod Kanth "CSA": Legal and Investigative Perspective, in Sheela Barse (Ed.) Child Victims' Right, Report of International Conference on Child Sex Abuse: Victim Protective Investigation and Trial Procedure, 11 at 13 (1996).

2. See Pioneer (Delhi Edn.) dated 7-11-1996, p. 3. See also Incestuous Father Poisons Pregnant Daughter to Death, Indian Express - Express News Line (Delhi Edn.) 3-12-1996.

9.54. The Constitution of India provides special protection to children. Article 15(3) confers powers on the State to make special provisions for women and children. Article 39(f) provides that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. This provision was added to the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978. Article 45 mandates the State to provide for free and compulsory education for all children until they complete the age of 14 years.

9.55. Since 1945 the welfare and rights of children have been a matter of great concern for the United Nations. One of the first acts of the General Assembly was to establish the United Nations Children Fund (UNICEF). In 1959, the Declaration on The Rights of the Child was drafted which has been serving as a guide post to private and public action in the interest of children on the basis "that mankind owes to the child the best it has to give".

This Declaration ultimately led to the drafting of the Convention on The Rights of the Child which was adopted unanimously by the General Assembly on 20th November, 1989. 187 States have ratified this Convention. The Convention came into force in India on 11th January, 1993.

Some of the provisions of the Convention specifically deal with the protection of children from sexual offences and violation, in particular Articles 34, 35 and 36. Article 34 of the Convention imposes an obligation on the State parties to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes the States are mandated to take appropriate measures to prevent:

(i) the inducement or coercion of children to engage in any unlawful sexual activity;

(ii) the exploitative use of children in prostitution or other unlawful sexual practices, and

(iii) the exploitative use of children in pornographic performances and materials.

Article 35 requires States to take all measures to prevent the abduction of the sale of or traffic in children for any purpose or in any form. Article 36 mandates states to protect the children against all other forms of exploitation prejudicial to any aspects of the child's welfare.

9.56. So far as rape of children under 12 years is concerned, the existing section 376(2)(f) provides a minimum mandatory sentence of 10 years rigorous imprisonment which may extend to life and fine.

9.57. To counter the evil of all other forms of sexual abuse of female children, the Law Commission's recommendations for amendment of section 354 as stated in para. 9.35. in Part IV should be adequate. In addition, the Law Commission's recommendation in para. 9.52 of Part IV for aggravated punishment for the commission of unnatural offences under section 377, I.P.C., on both male and female persons under eighteen years of age by adults would cover child sexual abuse on children, both male and female.

9.58. In the opinion of the Law Commission, the existing section 376(2)(f), and the Law Commission's recommendations for amendment of sections 354 and 377 are adequate to deal with child sexual abuse. Consequently, the Law Commission does not recommend the incorporation of new section 364A as suggested in clause 146 of the Indian Penal Code (Amendment) Bill.

9.59. Sexual-child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under section 375 of the I.P.C.. If there is any case of penile oral penetration and penile penetration into anus, section 377, I.P.C. dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them.

If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed section 354, I.P.C. where under a more severe punishment is also prescribed can be invoked and as regards the male child, the penal provisions of the I.P.C. concerning 'hurt', 'criminal force' or 'assault' as the case may be, would be attracted.

A distinction has to be naturally maintained between sexual assault/ use of criminal force falling under section 354, sexual offences falling under section 375 and unnatural offences falling under section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under section 377, I.P.C. or mere sexual assault or mere sexual use of criminal force which may attract section 354 I.P.C. within the ambit of 'rape' which is a distinct and graver offence with a definite connotation.

It is needless to mention that any attempt to commit any of these offences is also punishable by virtue of section 511, I.P.C.. Therefore, any other or more changes regarding this law may not be necessary.

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