Praiseworthy but Flawed Legislation
The Protection of Children from Sexual Offences Bill, 2011 which was passed in the Rajya
Sabha on 10 May 2012 and in the Lok Sabha on 22 May 2012 received the assent of the
President of India on 20 June 2012. It is now known as the Protection of Children from
Sexual Offences Act, 2012 and is the law of the land.
This is a piece of landmark legislation. For the first time a special law has been passed to
address the issue of sexual violence against children. It seeks to protect all children below
the age of 18 from sexual assault, sexual harassment and pornography. These offences are
clearly defined for the first time in Indian penal law. The Act provides for stringent
punishment to the offenders. Aggravated Penetrative Sexual Assault, for example, carries an
imprisonment of no less than 10 years, which can be extended to imprisonment for life.
Unique Features
The Act has some remarkable positive features. It provides for the setting up of Special
Juvenile Courts and appointment of Special Public Prosecutors for the speedy trial of the
accused. The evidence of the child is to be recorded within 30 days and the trial to be
completed, as far as possible, within a year.
It provides a number of child friendly measures related to reporting, recording of evidence,
investigation and trial of offences.
The statement of the child is to be recorded as far as practicable by a woman police officer
not below the rank of sub-inspector. The medical examination of the victim is to be
conducted in the presence of the parent of the child or any other person in whom the child
reposes trust or confidence. In case the victim is a girl child, the medical examination is to
be conducted by a woman doctor. The Act also stipulates that immediate arrangements have
to be made, as needed, for the care and protection of the child who has been victimized.
The media has been barred from disclosing the identity of the victim without the permission
of the Special Court.
The attempt to commit a crime, even if not successful, is made liable to punishment. The
Act also provides punishment for abetment of the offence. Failure to report a known offence
is also considered abetment.
In the case of an allegation, the Act places the burden of proof on the accused. At the same
time it also provides punishment for false accusation. The Act considers offences as
aggravated when committed by a person in a position of trust or authority over the child in
any way.
The Act has mandated that Central and State governments give wide publicity to it. An
especially appreciative measure mandated is that training be provided periodically to
officers of Central and State governments on matters related to the implementation of the
Act.
Short Comings
On the whole the Act is a fine piece of legislation in terms of dealing with cases of abuse of
children. However, the Act has totally neglected measures to be taken to prevent abuse. All
though the Bill is meant “to protect children from sexual assault, sexual harassment and Parappully/sexual abuse/child: protection of children act 2012 2
pornography,” there is nothing in the Act that refers to prevention of abuse. The Act only
deals with actions to be taken after the child has suffered sexual violence. Hence, the Act is
a misnomer. Our legislators seem to think that punishment is a valuable deterrent. It has
never been so in history! Just like capital punishment in itself has not deterred the
committing of murder!
Although The Parliamentary Committee overseeing the Bill, had widely disseminated the
Bill (it was also available on the Net) and invited comments and suggestions on the Bill
from various organisations working with children, and suggestions had been sent, not many
of them were incorporated before the Bill was passed in Parliament. The Act as passed
contains some serious defects.
Definition of Offence
In the earlier version of the bill anyone under age 16 was considered a minor. The Act raised
the cut off age to 18. In the course of it, the Act also made any sexual activity, even a
consensual one, with children under 18 or between minors a serious criminal offence,
punishable with imprisonment. This is unfortunate. Not every sexual act between children
below 18 is inappropriate. There is much sexual experimentation among children that is part
of healthy psychosexual development. The American Psychological Association, the
premier association of psychologists in the world, has stipulated in its definition of sexual
abuse that there has to be a difference of five years between a child and a perpetrator for a
sexual act to be considered abuse. One redeeming feature of the Act in this context is that if
an offence under this Act is committed by a child, such child is to be dealt with under the
provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Procedures for Reporting Cases
Chapter V of the Act that describes is “Procedures for Reporting of Cases” is the weakest or
the most flawed section of the Act from a psychological and professional perspective.
This section required greater specificity. Any person who has reason to believe that an
offence under this Act is likely to be committed or knows that such an offence has been
committed any time in the past is obliged to inform the Special Juvenile Police or the local
police. Failure to report is considered a criminal offence punishable by imprisonment.
Using the phrase “Any person” is making the onus of reporting universally binding,
including the victims. Just as in Chapter II, B where various categories of persons whose
action can be considered as aggravated sexual assault have been specifically mentioned, so
also this section should have specifically listed the categories of persons mandated to report
abuse, and who can be exempted.
In this context, what about “privileged information” such as gained through lawyer-client
exchange, in psychotherapy or in the Sacrament of Confession (Reconciliation) in the case
of catholic priests? Are these professionals also bound to divulge such privileged
information? In the case of catholic priests who are obliged by their vow to maintain secrecy
about everything heard in the Sacrament of Confession, this requirement becomes a
violation of their sacred commitment to protect the sanctity of the Sacrament. It gives rise to
conflict of conscience.
Even the child who has been abused is obliged to report the matter. This is not a very childfriendly measure. For a variety of reasons, including fear of reprisal, a child can refrain from Parappully/sexual abuse/child: protection of children act 2012 3
reporting. I feel the child victim should have been exempt from this requirement to report.
Fortunately the child is exempt from punishment for failure to report [Section 21(3)].
There is also no punishment stipulated for children who make false accusations or provide
false information. In one sense, this is child friendly. However, this is also a questionable
exemption in the context of a child being defined by the Act as someone below the age 18.
A malicious adolescent can make a false allegation and face no consequences for it, ruining
in the process the reputation and even careers of innocent people.
The Act does not mention any Statute of Limitation. Should an act committed 20 or 50 years
ago be reported? Some differentiation should have been made between ongoing or recent
abuse and abuse which happened a long time ago.
An important issue in regard to Reporting of Abuse that is missing from the Act is the
protection of those reporting the abuse. When a teacher, for example, reports that a student
is being abused by a family member (most abuse happens in the family), he or she may face
negative consequences, including threat to life; the child too may suffer negative
consequences including beatings and further assault etc. Section 19(5) and (6) provide for
the protection and care of the child who has been victimised. However, no protective
measures are offered for the person who reports abuse. Obligation to report, without
providing protection for the one who reports, including children other than the victim, can
be dangerous. We are aware of the dangers that whistleblowers face these days.
Non-inclusive Definitions
The wording of the act is such that a male bias can be read into it. The Definition of
Penetrative Sexual Assault in Chapter II, Section A (3), for example, uses the masculine
pronoun “he” to refer to the offender; this excludes women as offenders. What about women
who engage in digital rape of boys or girls, or insert objects into the anus or vagina of
children? Or, is penetrative sex applicable only to use of the male organ?
Even though the opening sentence of Section 19 (1) of Chapter V, uses “any person,”
referring to those who are to report known cases of abuse, the pronoun used in the rest of the
section is “he.” Here again we can read a male bias; by using the pronoun “he” the Bill can
be interpreted to exclude women from the responsibility of reporting.
There is an assumption among many people that sexual abuse is perpetrated only by men;
this is not true. Even though most abusers are men, women also sexually abuse both male
and female children. Even though most victims generally are female, latest available
statistics indicate that there is an increase in the number of boys who are sexually abused in
India; in some states the number of boys abused outnumbers abused girls.
Better Late Than Never
The Act was long overdue in the context of statistics showing that more than 53 percent of
children in India experience some form of sexual exploitation. Until the Act was passed
there was no law in India specifically addressing the protection of children from sexual
exploitation, even though such a law was mandated by the United Nations Convention on
the Rights of Children, 1989 which was ratified by India on 11th December, 1992. The
Convention required the State Parties to undertake all appropriate national, bilateral and
multilateral measures to prevent the inducement or coercion of a child to engage in any
unlawful sexual activity. It took India 20 years to fulfill that mandate. Better late than never! Parappully/sexual abuse/child: protection of children act 2012 4
The approach to the Bill by our lawmakers has also been rather lackadaisical. It had been
drawn up in 2005. But it was introduced in the Rajya Sabha only on March 23, 2011. The
same Bill was introduced in the Lok Sabha and passed hastily in the Lower House at the
last minute without much of a discussion (the only point raised was that it could be
misused) on the last day of the budget session of Parliament.
Another point to note: The Act states that it is applicable to the whole of the country, except
Jammu and Kashmir. I am not in the know of the reasons for this exception. However, don’t
the children of Jammu and Kashmir require protection against sexual assault? In the violent
climate existing in that State, there is the greater likelihood of children being victims of
sexual exploitation. Shouldn’t some provisions be made to prevent this happening?
In Conclusion
Over all, despite its shortcomings, the Act is highly commendable and one that is long
overdue. It clearly defines sexual assault, sexual harassment and pornography and gives
very clear guidelines to be followed when incidence of abuse comes to be known. Abused
children will have the consolation that their violators as well as those who abet their
victimisation will face due course of the law. Those who care for children also can have the
confidence now that they can avail of legal recourse in cases of sexual exploitation of
children.
Church Response
I understand that the CBCI has been working on the Church’s policy statement on sexual
abuse of minors. It appears this has been an in-house enterprise and the document was not
circulated among a wider group for feedback and suggestions. There has also been delay, for
whatever reasons, in publishing it. The website of the Catholic Bishop’s Conference makes
no reference to the proposed policy.
It is important that the Church’s policy statement incorporates and address the requirements
of the recent Act.
I am curious especially about the Church’s response to the legislative requirement that any
one who comes to know of sexual abuse, present or past, no matter what the source or
medium (and this includes sacramental confession) has to report the matter to the police or
would be considered as abetting crime.
Jose Parappully, PhD
The author is a Salesian priest and a clinical psychologist. He is the Founder-Director of
Sumedha Centre for Psychology and Spirituality at Jeolikote, near Nainital, Uttarakhand.
Email: sumedha.bps@gmail.com
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