July 21, 2010

Infantile Shortshrift


INDIA HAS NO law to criminalize child sexual abuse (CSA). The Prevention of Offences against Children Bill was drafted in 2005, but it has been in the cold storage despite the setting up of the Commission on the Protection of Child Rights in the same year. On a wave of moral panic after the Ruchira molestation case resurfaced, the government drafted the Criminal Law (Amendment) Bill, 2010 (CLA) to review rape laws in the Indian Penal Code (IPC) – to redefine rape beyond non-consensual peno-vaginal penetration and have clear provisions on CSA.

The 1999 Supreme Court case of Sakshi v Union of India was the first legal attempt to challenge inadequacies of the provisions in the IPC to make CSA an offence. The petitioner urged the Court to alter the definition of sexual intercourse to include all kinds of sexual penetration into any type of orifice of the body, not just peno-vaginal penetration. The 2004 judgment in this case admitted that there is wide prevalence of CSA, but did not alter the definition of ‘rape’. “An exercise to alter the definition of rape… by a process of judicial interpretation is bound to result in a good deal of chaos and confusion and will not be in the interest of society at large…,” the Court said. In response the Law Commission of India published its 172nd report which recommended that the offence of ‘rape’ be substituted by ‘sexual assault’, which would make it gender-neutral and bring into its fold a range of sexual offences beyond forced peno-vaginal penetration.

Thus we have the CLA, coming over half a decade after the judgment, although CSA has been given an infantile short shrift. In the CLA, ‘rape’ has been redefined as ‘sexual assault’ and includes penetration of any orifice on a woman’s body by any part of the man’s body or any other object. Consent remains the guiding factor to decide what qualifies as sexual assault.  The age of consent is fixed at 18 years. However, “when penetration is carried out for proper hygienic or medical purposes” it is not sexual assault – thus it allows for gross misuse as defense for medical personnel who can be perpetrators of CSA.

The CLA has a separate section (376C) on “sexual abuse of minors”. Unlike the section on sexual assault this section is gender neutral and lists a range of penetrations into any of the child’s bodily orifices by a man or a woman to constitute CSA. However, this section deems consent completely irrelevant. The problem with such a provision is that it could actually lead to criminalising consensual sexual acts between young people: if a 17-year-old girl has consensual sex with another boy of the same age, the boy is considered to have committed CSA. There could also be a situation where both can be perpetrators and victims at the same time. Children’s experiences of mutual sexual exploration or experimentation can potentially turn criminal under this provision. The IPC stipulates the age of criminal responsibility at 7 years. It’s paradoxical that by virtue of this law minors are capable of scheming and executing a crime at 7 years, but not capable of consenting to sex with someone of the same age till they are 18! The importance of protecting children from sexual abuse cannot be denied, however to criminalize expression of sexuality is a warped expression of conservative morality.

Unfortunately, CSA has also been understood only as penetrative sex in this section. The fact that CSA can take forms where contact or touch is not required (exposing or made to expose genitalia, showing pornography etc.) or where there is no penetration falls outside of the ambit of this section. Non-penetrative and non-touch CSA gets covered under Secs. 354 and 509 of the IPC (outraging the modesty of a woman, which only includes the girl child), though these sections remain woefully steeped in the discourse of female honour. Ideally, it should be included in a graded fashion under the sexual assault section in the CLA. The CLA also does not include incest and the processes of grooming that precede sexual contact in any case of CSA. The tokenistic insertion of this provision in the CLA does great disservice to the demand of child rights groups and the Sakshi petition for a separate and dedicated criminal law on CSA. Though the CLA gives considerable attention to punitive measures by increasing punishments and creating new crimes, a glaring omission is the absence of any provision for children with disabilities whose vulnerability to sexual abuse may be higher compared to other children.

In a state of legislative overdrive, even if the CLA amends the IPC it would mean little for victim-survivors of CSA and the amendments certainly cannot substitute the immediate need for a separate legislation on CSA.

(This piece was originally published in the New Indian Express, Chennai.)

1 comment to Infantile Shortshrift

  • Sreeparna

    Oishik – excellent article. Yes the CLA seems to follow the American legal definition of ‘statutory rape’, where consent is irrelevant if the victim (in the American case this applies to female victims only) is below the age of consent. This runs the risk of criminalizing young men for no real reason. Although I would hazard a guess that in the Indian context this risk would be lower since women/girls infrequently press charges of sexual assault (even when it happens). However I can completely envision a situation where the overzealous or overprotective parents of a young girl who disapprove of her liasion (for good or bad reasons) may decide to use this against her partner. This does leave the law wide open for abuse and interpretation.

    The understanding that CSA can occur without touch needs a complete rewiring of perspective not just on the part of the legal community but also on the part on the larger society. It is not uncommon to come across well-educated (and otherwise reasonable) people who cannot conceive of domestic violence without physical violence. The threshold is set extremely high – but she is not being beaten no? Thus withholding money or excessive control over physical mobility while in the letter and the spirit of the law is construed as being abusive, most people do not perceive this to be a form of wife abuse.

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