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Criminalisation is not enough

Criminalising consensual sexual behaviour between young people in the name of prosecuting child sexual abusers is a denial of young people’s right to safe and consensual sexual relations, write Debolina Dutta and Oishik Sircar in this analysis of the new Protection of Children from Sexual Offences Act

child sexual abuse

India finally has a law to criminalise child sexual abuse (CSA) – the Protection of Children from Sexual Offences Act, 2012 (PCSO Act) – which was passed by the Lok Sabha on May 22, 2012. Just 10 days before this Aamir Khan’s TV show Satyameva Jayate’s second episode was themed on CSA. At the end of the show, Aamir asked: “Do you want a strong and specific law against the sexual abuse of children?” The show, aired on May 13, 2012, mentioned that such a law was pending, but in fact it had already been passed by the Rajya Sabha on May 10. The show provided no information on the contents of the law, so it was only on the basis of Aamir’s intense appeal that the viewers were expected to ‘vote’. An overwhelming number of SMSs said ‘Yes’ on their website.

There seems to be a similar ignorance about the contents and consequences of the PSCO Act amongst legislators. They have overlooked many of the slippery slopes and limitations of this law.  

The enactment of this law should be a moment of celebration, and also one of contemplation. It’s a cause for celebration because after so many years of concerted effort – litigation, law commission reports, and several draft laws – the government has yielded to the demands of civil society groups which have cried themselves hoarse about why we need a separate law to address CSA. It has realised that we can no longer hide behind the fig leaf of Sec 377 and sundry other inadequate provisions in the Indian Penal Code (IPC) to prosecute perpetrators of CSA. Back in 2000, following the judgment in the Sakshi case, the 172nd report of the Law Commission of India had recommended the passage of a separate law on CSA.

Briefly, some of the positive highlights of the PSCO Act are: a) it defines CSA as a gender-neutral crime; b) it defines acts that constitute CSA comprehensively by including penetrative, non-penetrative and non-touch forms of abuse; c) it grades the quantum of punishment on the basis of regular and aggravated offences that take into account custodial forms of CSA; d) it sets up a detailed procedural mechanism, including the establishment of special courts with child-friendly methods of recording evidence and conducting trials; e) it has provisions enabling reporting of cases by a child, and squarely imposes the burden of proof on the accused. 

However, despite some of these very significant provisions, the PSCO Act is lacking in some fundamental ways in which CSA could be prevented and children protected. Our concerns are meant to raise caution about how the law’s central objective of ‘protection of children from sexual offences’ might get displaced because of its singular focus on criminalisation.

The PCSO Act criminalises acts of CSA, which is a post-offence intervention. Criminalisation alone can hardly ever have a deterrent effect that leads to prevention of an offence. If it were otherwise, all criminalised acts – from theft to murder to rape – would have stopped, or at least decreased, because of the law’s deterrent effect.

Complex family dynamics and the stigma around this issue make it difficult for children, or anyone else, to report CSA even to a family member, let alone the police. Even if one is able to report CSA, if the perpetrator is a close family member or parent, the survivor might not want to initiate legal proceedings. In situations like these, the law turns into a useless tool. Given such realities, the law must include provisions like access to psycho-social counseling services, information on causes and consequences of CSA, age-appropriate comprehensive sexuality education (CSE) in formal and non-formal institutions as guaranteed rights. In its present form, this law under Sec 39 only mandates the involvement of qualified counselors and other experts at the pre-trial and trial stages. These are post-abuse situations that do not talk about prevention. Mere criminalisation does little to create enabling conditions to empower children and recognise them as rights-bearers. 

Indian legal experience in the area of gender-based violence has shown how civil law interventions must accompany criminal law sanctions, and are in fact more effective in redressing wrongs. The Supreme Court’s Vishakha guidelines mandated the creation of institutionalised mechanisms like anti-sexual harassment cells, the use of information and communication material to build public awareness on sexual harassment, and gender sensitisation workshops for employees at workplaces. These measures help in addressing sexual harassment, not just for post-harassment interventions, but for prevention. Similarly, the Protection of Women from Domestic Violence Act, 2005 provides for civil protection of women’s rights to housing etc, and not just punishment for the abuser. The rules framed under the PCSO Act must mandate the creation of similar institutional measures in schools, children’s homes etc which are geared towards preventing CSA, and addressing it with more than criminalisation. The rules, however, must not be protectionist – where in the name of protecting children from sexual abuse, their freedom and right to experience safe and pleasurable sexuality is curbed.  

Our second concern is that this law defines a ‘child’ as “any person below the age of 18 years”, and thus incapable of giving consent to the acts that constitute CSA. This might be justified as a necessary measure to ensure that an abuser cannot get away by saying that the child had consented to the act defined as sexual abuse. However, this legislative decision smacks of conservative sexual morality, rather than a concern with prosecuting offenders. Debates around the age of consent have always been highly contested and inconclusive. The IPC stipulates that a person can be held criminally responsible at seven years. The absurdity of it all means that a child can have a ‘scheming’ mind capable of executing murder and rape at seven years, but a 17-year-old cannot give legally valid ‘consent’ to a sexual relationship with a 16-year-old!

Criminalising consensual sexual behaviour between young people in the name of prosecuting child sexual abusers is a denial of young people’s right to safe and consensual sexual relations, especially when many young people are sexually active today. In April 2012, Additional Sessions Judge Kamini Lau, while deciding a case in a Delhi court, observed: “The legal system cannot be used to punish youngsters in love who are on the verge of attaining majority and this court cannot ruin their lives by taking a hyper-technical view, especially so when the age gap between these youngsters is within acceptable limits and does not reflect an exploitative coercive situation.”  

This issue becomes more complicated because of Sec 41 of the PSCO Act which exempts any criminal liability on medical personnel if they carry out the very acts that constitute crimes under this law for the purposes of medical examination or treatment, provided it is with the consent of the child’s parent/ guardian. By not recognising any agency on the part of the child to consent to his/ her medical examination, this blanket immunity has two adverse fallouts: first, it does not take into account the possibility that doctors/ nurses or other medical personnel can be perpetrators themselves and can conveniently get away because of this provision; second, what happens when the parent/ guardian who is responsible for providing consent on behalf of the child is a perpetrator?

The ostensible ‘risk’ involved in fixing a lower age of consent is that young people are not ‘mature’ enough to understand the consequences of their consent. The reality of this ‘risk’, if any, can be offset if the law made provisions for making access to information and training in CSE a right for children, and made institutions like schools accountable to put these into operation. CSE prevents CSA by training children in safe and responsible sexual behavior, not only in the language of criminality and danger, but by talking about respect, dignity and pleasure.

On April 28, 2012, at the 45th Session of the United Nations Commission on Population and Development, member states issued a landmark Resolution on Adolescents and Youth in support of young people’s sexual and reproductive health and human rights. The Resolution includes provisions like the right of young people to decide on all matters related to their sexuality, access to sexual and reproductive health services, including safe abortion, that respect confidentiality and do not discriminate, the right of youth to comprehensive sexuality education, the protection and promotion of young people’s right to control their sexuality free from violence, discrimination and coercion. In the wake of progressive international developments like these, the lawmakers would do well to follow some of the recommendations in this UN Resolution.

Now that we have the law, we hope that the government – especially the Ministry of Women and Child Development – will ensure that the above lacunae in the law are rectified through the rules that will be passed to enable its effective implementation. And the age of consent must be lowered to 16 by an amendment as it was in the 2001 draft version of the law. It will be a pity if this important law turns into a tool for criminalising young people’s consensual sexual behaviour, rather than creating enabling conditions for empowering children with rights guarantees to prevent and protect them from CSA.

(Debolina Dutta works with CREA, New Delhi and Oishik Sircar teaches at the Jindal Global Law School, Sonipat)

Infochange News & Features, June 2012