The sexual abuse of children is one of the most heinous crimes imaginable. It is an appalling violation of their trust, an ugly breach of our commitment to protect the innocent. Reliable estimates are hard to come by since this is a furtive form of abuse, often causing victims to suffer in dark and claustrophobic silence. A 2007 study by the Ministry of Women and Child Development (MWCD) found that 53.22 per cent of India's children have experienced some form of sexual abuse. Against this background, the lack of specific provisions for child sexual abuse in our criminal law is a serious lacuna. Rape is an offence under the Indian Penal Code, but lesser forms of sexual offences against children, which constitute a broad range including groping and harassment, are covered by grossly inadequate and inexact provisions such as “outraging the modesty of a woman.” The second working draft of the Protection of Children from Sexual Assault Bill addresses this weakness by specifying various forms of sexual abuse against girls and boys under the age of 18. The gender neutrality of the proposed legislation is noteworthy since sexual abuse against boys, despite naive presumptions to the contrary, is rampant. The MWCD report, which surveyed 12,447 children, found the majority of victims (52.94 per cent) were boys. Significantly, the draft Bill permits sexual activity if a person is above 16 years of age, provided such activity satisfies the definition of consent as laid down by it.
The provisional draft, which has emerged from consultations between the Law Ministry and NGOs, provides for stringent punishments, ranging from three years in prison for sexual harassment to life imprisonment for aggravated sexual assault. More importantly, it deals with sexual abuse in a comprehensive and sensitive manner. Apart from prescribing that all such cases be tried in special courts, the draft specifies procedures to be followed for recording a child's evidence, for protecting his or her identity, and for providing the child with assistance from NGOs and experts in pre-trial and trial stages. A grave flaw in the draft, which is strongly opposed by some activists who have been critical in its very formulation, is that the burden of proof has been shifted on to the accused. This could encourage the misuse of the law — for example, when bitterly estranged couples fight divorce or custody cases — and the Law Ministry must seriously consider deleting the ‘reverse onus' provision. It would be a shame if a sound and progressive law is allowed to be marred by something that controverts the basic jurisprudential canon that people accused of crimes are presumed innocent until found guilty.