With the draft of The Protection of Children from Sexual Assault Bill, 2010, being debated, activists discuss its pros and cons
It was in “a momentary lapse of judgment” that the accused “ravished her honour”, probably “in a fit of passion” or “momentary lust”. To quote the landmark judgment in the 1974 Mathura case, the two policemen who raped the 16-year-old girl from Chandrapur were acquitted because she “was habituated to sexual intercourse”.
Since the Indian Penal Code does not recognise child abuse as a separate offence, it is to the quagmire of adult laws on rape and sodomy that young victims of abuse turn — laws that fail to adequately address the crime of child sexual abuse. But the tide could be turning. The second working draft of The Protection of Children from Sexual Assault Bill, 2010 is doing the rounds of the Ministries concerned. A remarkably gender-neutral draft, that allows for Special Courts to deal with CSA (child sexual abuse), it lists the procedures to be followed for recording a child's evidence and to protect his or her identity, and a requirement of a verdict within a year.
“It began sometime in April with a series of discussions and debates all over the country — Bangalore, Mumbai, Delhi and Chennai,” says Vidya Reddy of Tulir, the organisation that was asked to captain the consultations. Thousands of novel ideas, outrageous suggestions, ambitious plans and zealous recommendations. “Chaos!” she laughs. And gleaned from it all were a few hundred words that could ease the lives of thousands of children brave enough to place some of their darkest moments under the judicial eye.
A study by the Ministry of Women and Child Development in 2007 revealed that 53.22 per cent of all Indian children, irrespective of class, caste, religion, education and income backgrounds had disclosed being sexually victimised in at least one way; and there had been very little difference in the disclosure of abuse from girls and boys.
“I have a ‘One-Step Theory', that people like to acknowledge issues such as CSA as always one step away from themselves,” says Vidya. There is also a constant minimalisation of the problem. “So what if someone tickled her under her dress?” demanded a headmistress to her once with a Gallic shrug. “It was just a little bit of CSA!”
Till now, the only Sections that were invoked from the IPC were 354 (‘intent to outrage her modesty'), 376 (which deals with rape, specifically of a woman by a man) and where boys were concerned, the now in-limbo section 377 dealing with sodomy. This leaves us with loopholes large enough to waltz through, with a parade following. (Remember designer Anand Jon, accused of violent sexual assault of seven young women, some of them under-age, who asked to be tried in India? He was refused. A Los Angeles court sentenced him to 59 years in prison.)
In the draft bill, CSA has been delineated into five categories, with differing punishments — sexual assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault, and sexual harassment. Is this necessary? “Here's a for-instance. Rape laws in Kenya are so sweeping and tough that you would think the conviction rates would be very high there. In fact, it's just the opposite. The laws are so rigid that they're escaping through the cracks,” says Carol A. Plummer who has been working in the area of prevention of child sexual abuse for over three decades in the United States. “It also lends a clarity to the nature of abuse,” says advocate Geetha Ramaseshan, who led the consultation process as well. “But what we need is not increasing punishment, but sure punishment.”
One of the hardest things during the consultations was to keep in mind how the law would translate into local languages. “These cases are going to be heard in the 673 district courts in India, with judges who might not even want to acknowledge child abuse. The language has to work there,” says Vidya.
And significantly, the Bill recognises the role of social workers and NGOs who work in this field as vital to dealing with abuse. For instance, children who are mentally or physically challenged are allowed to have a special educator present to record their statement.
A few concerns linger. For instance, the burden of proof has been shifted to the accused. “We're not very comfortable with that clause. Yes, it is a heinous crime, but we cannot be emotional about this, and subvert one of the basic principles of our criminal jurisprudence system,” says Geetha.