By Devika Agarwal (RMLNLU, Lucknow)
“Where ignorance is
bliss, ‘tis folly to be wise.…” Thomas Grey never had
it more right: what evokes horror in oneself is better left unheard, unseen and
unknown; ignorance begets complacency and complacency begets a blissful
existence of oneself. Child sexual abuse that occurs within the family is a
well-guarded secret in the Indian society today, a topic seldom broached and
quickly hushed.
Sexual
abuse that a child faces at home is any sexual abuse of the child by a family
member known to the child and includes sexual abuse of a child by his parent,
sibling, uncle or aunt. What lends this form of sexual abuse a bitter taste is
the fact that the perpetrator is none other than someone whom the child loves,
is affectionate about and trusts without a shred of doubt. And it is the
rending of this trust that shakes the very mind and soul of the child and
shocks any one to whom this tale is recounted. Perhaps the most damaging effect
that this form of abuse has on a person who was sexually abused as a child is
that it may turn him into a child abuser, perhaps because he feels that he must
do unto others what others did to him.
Pinki
Virani’s book Bitter Chocolate
(published by Penguin Books in 2000) reveals startling statistics: a minimum of twenty percent of boys and
girls below the age of 16 are regularly being sexually abused; half of them in
their own homes, by adults who have the child’s trust.
The
media is scantily clad when it comes to reports of such form of sexual abuse in
India, a Google search does not reveal much either. Pinki Virani’s book is an
eye-opener in many ways: the author herself admits to being sexually abused as
a child by someone known to the family. As a critic notes, Pinki Virani is
destitute of self-pity when she narrates how her father knew of the abuse that Virani
faced at the hand of the perpetrator but never stopped the man from coming to
their house nor confronted him.
What
precludes bold reporting of such cases is the fact that the abuse is of such
form and character that it strikes at our very beliefs about the role family
plays in a person’s life, where a father or a brother is the keeper of a girl’s
dignity, and one wonders if home is any longer the sanctum sanctorum for a
child.
The
existing law in the country is inept to deal with such form of sexual abuse.
The relevant provisions of the Indian Penal Code which deal with offences
against the human body are:
·
Section 354- punishes assault or criminal force to woman with
intent to outrage her modesty. Here
woman denotes ‘a female human being of any age’ (A maximum punishment of
imprisonment up to 2 years may be imposed)
·
Section 375- punishes rape committed by a man against a
woman. The definition of man is ‘a
male human being of any age’. It criminalizes sexual intercourse by a man with
a girl below the age of 16 years. The explanation to this section makes penetration an essential ingredient of
rape.[1]
·
Section 377- punishes “carnal intercourse against the order of
nature with any man or woman”.
The
aforementioned provisions are, however, threadbare inasmuch as they do not seek
to target the specific menace of child sexual abuse and are very general in
their application.
Also, the Indian Penal Code
does not countenance a situation where the rape is committed by a woman or the
rape victim is a man. Likewise, section 354 is gender biased in its
application, leaving very little scope for prosecution in cases of sexual abuse
committed by a woman or that committed against a boy child.
In
a country plagued with multiplicity of litigation, the loopholes in the legal
framework catalyze an unabashed rate of unsuccessful conviction when it comes
to cases of sexual assault. A case in point is that of Smt. Sudhesh Jhaku v. K.C.J., in which a little girl, all of 6
years, used to be taken by her father to the office and from there to a hotel room. the others to accompany were the friends of the girl's father.Enclosed there, they would consume alcohol, watch what are generally known as "blue films" and revel in sex orgies. And, during those naked games of raw flesh, the accused would make his own daughter consume alcohol, remove clothes, and thrust his fingers in her vagina and anus. This led to the mental retardation of the child and the girl would panic in the proximity of any man. The accused was prosecuted under section 354 ("outraging modesty of a woman") and section 377 (unnatural offences) The mother, dissatisfied with the charges levied against the accused, moved the court to charge the accused for the offence of rape (section 375) The Delhi High Court, however, dismissed the petition of the mother that the charge of rape against the father of the child could not be levied on the technicality that the penetration according to its literal interpretation means 'penetration of the male organ into woman's vagina'
Contrast
this with the English Law on the point which enacted penal legislation in 2003,
Sexual Offences Act 2003. Familial child sexual offences are given recognition
in section 25 of the Act. An offence under this Act is made out if a person
touches a child family member and the touching includes all forms of penetration.
A successful conviction, if carried out, promises to put the perpetrator in
prison for a maximum term of 14 years.
Further,
Article 34 of the United Nations Convention on the Rights of the Child (UNCRC)
1989 makes it incumbent upon the State Parties "to protect the child from all forms of sexual exploitation and sexual abuse"
An immediate
offshoot of any legislation is the question as to its efficacy in
implementation. At the procedural level where a prosecution leads to trial, the
child is the key witness. The significance of the psychological angle of
cross-examination of such victims cannot be discounted. It is often seen that
children who have been sexually harassed are doubly and trebly victimized when
they are asked to recount their story of horror and shame, where the defense
counsel leaves no stone unturned in manipulating the child by asking leading
questions, so that even the Court starts disbelieving the prosecution story.
The law therefore must be adequately equipped in order to not remain a mere
paper tiger. On the societal front, we need to wake up to the satya which exists in many Indian
households before it’s too late to save That Child Who Gently Weeps.
[1] Section 375 (Explanation): Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.
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