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The POCSO Act Is Limited In Its Understanding Of Child Sexual Abuse

Shruthi Gurumoorthy

Trigger Warning: Mention Of Child Sexual Abuse

A child below 16 is raped every 155th minute and below 10 years of age is raped every 13 hours (Kumar, Chandran, Rao, & Maheshwari, 2019).

The issue of child sexual abuse, largely ignored in the public health discourse, is rarely acknowledged as a grave concern in India despite the fact that the rate of sexual abuse has increased from 2.5 POSCO cases for every 10 crimes against children in 2017 to 3.7 POCSO cases for every 10 crimes against children in 2020 (NCRB, 2020).

Child sexual abuse was recently recognised as a criminal offence in 2012 after tremendous efforts over the years by activists and non-governmental organisations toward breaking the “conspiracy of silence” [Dummett, M. (2013)].

Law: A Changing Tool And Its Limits

The genesis of POCSO: Prevention is better than cure, they say. So can we prevent child sexual abuse in India? If yes, how? To answer this, a review of our policies, laws and programmes and views of stakeholders is essential.

The supposed intention of the law is social transformation and social engineering. Indian society, often guided by institutions of caste and patriarchy, requires laws that help bring social cohesion through the convergence of all stakeholders that accept a zero-tolerance approach to sexual abuse and never pass it off as banter, or have a laugh or consider it a part of growing up.

It is important not to downplay or normalise such unacceptable behaviour.

The POCSO Act 

POCSO (Protection of Children from Sexual Offences), as mentioned earlier, is a recent effort by our criminal justice system that recognises a range of sexual offences and sexual behaviours towards children as crimes.

The POCSO Act has a limited scope.

This important law came into effect because of a study spearheaded by the Ministry of Women and Child Development in 2007, supported by UNICEF, Save the Children and Prayas. The purpose of this national study on child abuse was to have a comprehensive understanding of child abuse which would facilitate the formulation of policies and programmes to prevent it. This gave birth to the POCSO Act 2012.

The law being a welcome development, unfortunately, has a limited understanding of sexual abuse. According to the Act, a sexual offence is described as an offence which focuses on the Act being an offence only if it is penetrative.

For instance, the Act says the person has committed penetrative sexual assault if:

Limitations Of The POCSO Act

There is an assumption that the perpetrator will always be a male (as “he” is being used). There have been many cases where the perpetrator is female (Lexlife, 2021).

The sexual offence is limited to only penetration, whereas child sexual abuse should involve not only penetration but includes two main types of abuse; touching and non-touching. Touching includes touching a child’s genitals, making a child touch someone else’s genitals, playing sexual games or putting objects or body parts inside the vulva or vagina, in the mouth, or in the anus of a child for sexual pleasure.

The Act needs changes.

Non-touching abuse includes showing pornography to a child, exposing a person’s genitals to a child, prostituting/trafficking a child, photographing a child in sexual poses, encouraging a child to watch or hear sexual acts either in person or on a video or watching a child undress or use the bathroom.

But the Act focuses solely on the victims of penetrative sexual violence, which prevents others from seeking justice through the POCSO Act.

There is no mention of whether child sexual abuse can be reported during the adulthood of a survivor. It takes time and effort to realise and come to terms with the abuse due to many factors, including lack of awareness about safe sex practices, good and bad touch and consent and lack of any familial and institutional support.

In this sense, the Act prevents the survivors from reporting crimes and seeking justice in their adulthood. So it is very important for the Act to have an amendment where it takes the plight of adult survivors into consideration and creates an equitable justice system.

It is important to understand that child sexual abuse is an act of power relation grounded in the interplay of family, society, community and the individual. Evidence has shown that a family setting is where a large number of victims face abuse [Choudhry, V., et al. (2018), HAQ (2018), Rahi, (1999)].

In this context, one needs to evaluate the parental discipline prevalent largely in Indian households. This pattern can be a cause of concern that puts down the confidence of a child when the abuse happens and prevents the child from revealing any information due to the fear of its consequences [Roy, S, & Madiki, I P (2020), Virani, P (2000)].

This environment is also a reason for the under-reporting of child adversity, especially child sexual abuse.

Engagement Through Conversation And Learning

We need to educate children.

In India, any discussion of sexual nature is considered taboo. Sex education has attracted strong objections and apprehensions from all circles and has gone to the extent of its provision being banned in states including Maharashtra, Gujarat, Rajasthan, Madhya Pradesh, Chhattisgarh and Karnataka.

A study in rural Maharashtra by Verma, Sureender, & Guruswamy, 1997, in a school showed that most of the teachers and principals had an opinion that sex education can be a part of something extracurricular and not part of the curriculum.

But India is mandated as a signatory of the United Nations International Conference on Population and Development (ICPD) to provide free and compulsory sexuality education for adolescents, without which the country is violating the human rights of young people [Ismail, S, et al. (2015)].

Dr Ramanujam, Consultant Psychiatrist in Tirunelveli Medical College, practising for more than a decade, told me, “In my experience, I have mostly seen women to be the victims and in a patriarchal society like ours we have attached honour with women’s sexuality. 

“We have to start questioning such ideas and practices. Women always feel that it is their fault that this happened to them and fall into the trap of guilt. Women take it to themselves. First, together as a society, we have to dismantle the guilt and educate everyone about sexual abuse. There should be severe punishment for such crimes and victim bashing should be stopped. 

“We should orientate children about good and bad touch. As a community, we should all come together to fight injustice. The state should focus on the education system. Sex education should be introduced in schools and there should be more awareness generation with reference to Child Sexual Abuse and POCSO Act. The redressal mechanism should be strong.”

Representational image.

When I asked him why he thinks people commit such crimes, he said, “There are multiple reasons as to why perpetrators perform such crimes, it can be either because of substance abuse or watching pornography.” He also mentioned that wherever sex education is a compulsory part of education, the crime rate is lower there. This is reiterated in the literature.

One of the steps that have proven successful in the prevention of child sexual abuse is the introduction of sex education in the school curriculum.

It is shown in Nigeria that those children educated by parents on sex education were 1.23 times less likely to be abused than those not educated (Manyike, P C, et al. 2015). Likewise, the study in the United States shows that states which had mandated minimum sex education for students in public schools were the states with the lowest rates of rape [Herman, B (2020)].

Similarly, a pre and post-test assessments of 396 children in pre-school, kindergarten and first and second grade exposed to the Care for Kids program proved to be successful in teaching children about healthy sexual behaviour, such as personal boundaries and respect for other, which were measured including “demonstrates an understanding that genitals are private”, “says ‘no’ when he/she does not want to be touched” and “accepts a ‘no touching’ answer from others”. (PCAR, 2016)

There are some things that parents and guardians could do to protect their children and the kickstart to that is by having a conversation in their homes without any inhibitions. Indian families usually shy away from openly discussing any topic that is related to one’s genitals.

The Lens Of Conveying Matters

Anusuya, herself an adult survivor, is now a mother of a 9-year old girl. During our conversation, she shared two crucial points: She taught her child about good touch and bad touch when the child was 4–5 years old.

Her daughter understood the concept very well and one fine day, when they were in a movie theatre, a song began where as part of their dance routine, the hero grabbed the heroine from behind and also placed his hand at her navel. Watching this, Anusuya’s daughter screamed, “Amma (mother), uncle is doing bad touch to aunty,” to which the entire theatre burst out laughing.

Start a conversation with your children.

And another incident Anusuya shared was when Anusuya and her daughter went to one of their family friend’s house, a boy was playing with her child and he tickled her around her waist. The girl again went running to the mother and said, “This Bhaiya is doing bad touch.” The boy’s face changed completely and he became frightened. Since Anusuya was sitting right there, she spoke to the boy and left that place.

Anusuya understood that the touch of the boy wasn’t bad because she was physically present there, but she was terrified that what if she wasn’t present there and her daughter told her about the incident. This shows us that when you’re teaching the child about good touch and bad touch, one has to make sure that it is conveyed with full sensitivity.

We sould be careful to instil new knowledge but not a new fear. Anusuya has this regret now that she has snatched the child’s innocence away by informing her and making her aware of this at an early age, as this makes her suspicious of every touch around the pelvic region.

After having a conversation with Anusuya, I went ahead searching for material that informs how a parent can identify symptoms of abuse and can talk to the child about the abuse. I came across an organisation called Parent’s Protect. I highly recommend parents, to be parents and almost everyone to read through the website for clarity.

I took this question to Dr Ramanujam. He told me, “While engaging in these topics we should share examples from everyday lives on how a parent should teach a child to not get beaten by anyone and if it happened, they need to report it immediately. Similarly, we need to teach good touch and bad touch as the child will register that in mind without fear or apprehension.”

Any abuse committed by a person has a story to share behind the actions. Krithika Tharan, a therapist, says that paedophilia is a mental health issue. We should identify paedophiles and as a society, we should stand against paedophiles living amongst us.

The government’s concern on child sexual abuse is rather taken less seriously.

In the U.S.A., if a person is identified to be a paedophile, then everyone in the surrounding gets a message from the government that alerts everyone, and most importantly, that person is also sent to mental health asylum.

Paedophiles should be identified and our state should start working on the same. Paedophiles should be given medical treatment and should be kept in isolation until they demonstrate improvement and the professionals concerned issue a NOC to reintroduce them into society. For an immediate focus though, we should make sex education mandatory in schools.

On the ground level, the government’s concern on child sexual abuse is rather taken less seriously. Jaishree, an Anganwadi Worker, told me that they were given training only 4–5 years ago about paedophilia and what a parent should do to protect a child. I asked her if they had been told anything to teach the children, and she said no.

Death Penalty: An Ultimate Solution Or Easy Recipe For Non-Action

In my conversation with survivors, everyone spoke about the importance of knowing and teaching about good touch and bad touch. In addition, they also called for stricter punishment for the perpetrators.

POCSO Act includes a provision that awards the death penalty to the perpetrator in some circumstances. This needs some contemplation. Long term solutions require long term investments, but it is futile to want to execute perpetrators of child sexual abuse.

It is important to understand that harsher punishments are a mere catharsis for the immediate victim and since it is a populist move, it has the blessings of the general public. The situation is more complex when the perpetrator is a family member.

We need to question society’s consciousness.

In addition, the perpetrator, a product of our own society, requires attention, as justice merely can’t mean putting the abuser in jail either. It requires questioning the entire society’s consciousness.

Suggestions And Conclusions

Change needs to happen at various levels—structural, institutional and political. The starting point of change needs to be affected by increasing the funding for children. It is observed that child-funding in 2008–09 was a mere 4.8% and it declined to 3.29% in 2019–20 despite the increase in vulnerability for children during Covid (Joining Forces For Children India, 2021).

This pattern shows that it is high time that we instituted a separate ministry for child development and welfare. Though the recent introduction of the Integrated Child Protection Scheme (ICPS) under the Women and Child Development ministry is laudable, the underlying philosophy of the scheme is “protection”, which ceases children from having agency as they are considered “vulnerable” entities.

It is important to “empower” a child who comes with their own history and circumstances. In a society like ours, child sexual abuse is usually associated with stigma, dishonour to family and self-blaming, which prevents the survivor from disclosing these instances.

The need to dismantle the taboo around abuse is urgent. To achieve this, we need sex education. We also need to continually emphasise consent as the key to any sexual activity. A judge interviewed by HAQCRC in Delhi observes, “The challenges in dealing with such incest cases are more at a social level,” (HAQCRC, 2018).

In addition, as social change is a long term transformative process, the need of the hour is to train the lawmakers and law enforcers to be sensitive towards children, especially in the cases of sexual abuse, and create a conducive environment so that they speak openly and engage actively to help ensure victims achieve emotional rehabilitation.

*I would like to acknowledge Sridhar Subramaniam for ensuring that this piece happens. 

References

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