Save children from legal lacuna

Enact specific laws to address child abuse

ananthapriya-subramanian

Ananthapriya Subramanian | March 16, 2010



The government’s decision to introduce a set of guidelines for service providers in the tourism sector in a move to prevent a repeat of incidents like the rape of a Russian girl in Goa recently is indeed a welcome step. The code of conduct that has come into force from March 8, 2010 envisages, among other things, training tour operators and hotel staff on identifying and reporting potential cases of sexual exploitation of children.

These guidelines will help service providers in the tourism industry to help build a protective environment for children by establishing an ethical policy against commercial sexual exploitation of children. The code of conduct should be displayed in all tourist places of interest, hotels, resorts, etc.

The guidelines, which will go some way in addressing some of the horrifying aspects of child abuse, come in the wake of a spate of recent news reports of tourists accused of paedophilia and pornography. While applauding the government’s response, it must be highlighted that much more remains to be done in light of the chilling fact that India has the highest number of sexually abused children in the world.

A study conducted by the Ministry of Women and Child Development, Unicef and Save the Children in 2007 brought out some shocking facts about the extent of child abuse in India. Over 53 percent of children reported having faced some form of sexual abuse. In fact, the study found that two out of every three children were physically abused. But the most shocking revelation is that in a majority of cases the abuse was perpetrated by someone known to the child or in a position of trust and responsibility. Not surprisingly, most children did not report the abuse to anyone.

Nineteen percent of the world’s children live in India. Over 44 crore people in the country are aged 18 years and below and constitute 42 percent of the total population. Signing up to the United Nations Convention on the Rights of the Child, India promised to protect its children from all forms of sexual exploitation and sexual abuse. Article 34 (a) enjoins state machinery to prevent the inducement or coercion of a child to engage in any unlawful sexual activity. Yet, despite having the dubious distinction of having the highest number of sexually abused children in the world, there is no special law in India dealing with child abuse and child sexual abuse.

The Indian Penal Code does not spell out the definition of child abuse as a specific offence; neither does it offer legal remedy and punishment for “child abuse”. The IPC broadly lays out punishment for offences related to rape or sodomy or “unnatural sex”. The IPC laws are rarely interpreted to cover the range of child sexual abuse; the law relating to terms “sodomy” or “rape” are too specific and do not apply to acts like fondling, kissing, filming children for pornographic purposes, etc.

Even the law for the welfare of children, the Juvenile Justice Act, does not specifically address the issue of child sexual abuse. It is difficult to apply the provisions of existing laws to any case of child abuse as it is easy for a defence lawyer to make use of the legal loopholes to facilitate their client’s escape from punishment. Even if someone does get convicted under the IPC for rape, the maximum imprisonment is a mere two years.

We urgently need legislation that specifically addresses child abuse. The legislation must address all forms of sexual abuse, including child prostitution and child pornography. But it should also deal with physical abuse, including corporal punishment, bullying and trafficking of children. There is urgent need as well to have a functioning administrative system to record and register child abuse cases. Given the fact that the majority of children do not report sexual abuse to anyone, any law must look at mechanisms of reporting and persons responsible for reporting. Children need to be able to go to someone who they know will listen to them, protect them and take action on their behalf.

Merely enacting legislation will not be enough unless this is followed by strict enforcement of the law with accountability defined. Also, parents, teachers and others in the community have a vital role to protect children from sexual exploitation and abuse.

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