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Legislation Concerning Reporting of Child Sexual Abuse and Child Trafficking in India: A Closer Look




© Springer Science+Business Media Dordrecht 2015
Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_25


25. Legislation Concerning Reporting of Child Sexual Abuse and Child Trafficking in India: A Closer Look



Sibnath Deb 


(1)
Department of Applied Psychology, Pondicherry University (A Central University), Silver Jubilee Campus, R.V. Nagar, Kalapet, Puducherry, 605 014, India

 



 

Sibnath Deb



Keywords
Child sexual abuseChild traffickingMandatory reportingChild protectionPolicyCross cultural issues of child protection



Introduction


The increasing rate of child sexual abuse and child trafficking has become a serious concern for national and international policy makers. Because these acts are criminal and result in serious harms to the child, and occur in closed scenarios where the situation is concealed, it is very important for people who become aware of the acts to report the incidences to the appropriate authority. Reporting of incidences could help to render justice and health rehabilitation to the victim and penalize the perpetrators. In addition, it would help to understand the nature and magnitude of the problem. The objective of this chapter is first to review the Indian legislation concerning mandatory reporting of child abuse and neglect and, second, to consider the potential for mandatory reporting of two categories of child maltreatment in particular in the Indian context: sexual abuse and child trafficking.

The Indian Constitution (adopted on Nov. 26, 1949, enforced on Jan. 26, 1950) guarantees four fundamental rights to all citizens: justice, liberty, equality, and fraternity. If any citizen experiences any form of violence, abuse, or maltreatment, they have every right to seek justice. Violence, especially interpersonal, social, and community, has existed in society since time immemorial. The nature, forms, and extents of violence vary from time to time. Recently, the active role of the media has now brought the severity of specific problems, including child sexual abuse and trafficking to the surface in India. Violence is a natural phenomenon since the inherent nature of human beings is to dominate others in different forms to gain power and resources. However, legislative and social measures taken up by the appropriate authorities of a society from time to time for combating the problem have brought some changes. Review and/or amendment of legislation is also necessary for addressing emerging challenges.

Although children have always experienced various forms of violence, this issue has been recognized by the international community in the recent past through adoption of the UN Convention on Rights of the Child (CRC) (1989) to which most nations are signatory. The Government of India is also a signatory to the CRC (1989). In addition, the Government of India has passed various pieces of legislation addressing the problems of children and promoting their rights.

The Government of India has adopted a range of legislation for the protection of child rights in addition to a number of articles for child protection in the Indian Constitution (1949). Yet, none of the legislation prescribed anything about reporting of offenses against children except two, which have only done so in a partial way: the Indian Penal Code (IPC 1860) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act 2012). Even the Immoral Traffic (Prevention) Act (ITPA), 1956, did not mention anything about reporting. In the IPC, sections like 176 (Omission to give notice or information to public servant by person legally bound to give it), 177 (Furnishing false information), 197 (Issuing or signing false certificate), and 201 (Causing disappearance of evidence of offence or giving false information to screen offender) talked about reporting of any offenses without specifying the category of professionals and/or social agents. The POCSO Act (2012) mandated all persons to report any sexual offence against a child (s 19) and the media, studio, and persons in the photographic profession to report sexual exploitation of the child (s 20).

Despite so many new measures, a major problem persists because children continue to experience violence in different forms owing to poor reporting. There is an urgent need for India to review other countries’ legislation pertaining to mandatory reporting of child sexual abuse, especially the USA and Australia, and child trafficking, such as the Human Trafficking Act of Ghana (2005), to consider the potential for these approaches in the Indian context and to formulate appropriate legislation or amend existing child rights-related legislation in India, taking into account local cultural beliefs and practices and economic conditions of the people. In turn, it will help the Ministry of Women and Child Development, Government of India, and the National Commission for Child Protection and State Commissions for taking corrective measures for child protection.


Magnitude of the Problem



The Global Context


It is very difficult to measure the nature and extent of violence against children since most of such incidences occur in the privacy of family and are never reported or investigated (UNICEF 2009). The hard reality is that in some nations, data collection mechanisms do not exist (UNICEF 2009; Pinheiro 2006). However, one of the recent global meta-analytic reviews of population-based studies of childhood sexual abuse has estimated cumulative prevalence rates for sexual abuse prior to age 18 as 18.0 % for girls and 7.6 % for boys (Stoltenborgh et al. 2011). A recent discussion paper on child protection and child welfare in the Asia-Pacific region (Pouwels et al. 2010) summarized primary studies reporting the pervasiveness of physical, psychological, and sexual violence in the preceding 12 months for children in China (10 %, 13 %, and 2 %, respectively), Malaysia (19.0 %, 20.4 %, and 22.2 %, respectively), and Vietnam (47.5 %, 39.5 %, and 19.7 %, respectively). A study of childhood maltreatment in 7 low- and middle-income countries (Dunne et al. 2009) revealed rates of physical, psychological, and sexual violence ever experienced during childhood for children in India were 33.1 %, 46.8 %, and 20.2 %, respectively. The results of these studies suggest that children in different countries experience different types of victimization at different rates. Even within countries, there may be regional differences.

There are various global estimations about trafficking of women and children every year. According to the US Department of State Trafficking in Persons Report (2007), about 600,000–800,000 men, women, and children are trafficked across international borders each year. Approximately 80 % are women and girls and up to 50 % are minors. Another estimation says that approximately 80 % of trafficking involves sexual exploitation and 19 % involves labor exploitation (Source: Eleven Facts about Human Trafficking; ​www.​dosomething.​org/​tipsandtools/​11-facts-about-human-trafficking).


The Indian Context


India, with its more than one billion population, has achieved a literacy rate of 74.04 %. About 70 % of the people in India live in rural areas, while 30 % live in the urban areas (Census of India 2011). Poverty in India is widespread. Various agencies reported almost similar estimation about poverty in India. For example, according to the World Bank Report (2010), 32.7 % of all people in India fall below the international poverty line of US$1.25 per day (PPP), while 68.72 % live on less than US$2 per day (Junofy 2013). The United Nations Development Programme (2010) estimated that 29.8 % of Indians live below the country’s national poverty line (Mandal 2010). The children from these families become more vulnerable to trafficking and/or sexual abuse (Census of India 2011). Of the total population, about 44.4 % of them are children, irrespective of socioeconomic background, and one in every two children is deprived in respect of not receiving primary education, adequate nutrition, and medical care (International Institute for Population Sciences 2007). Girls in India, especially in the rural areas, are discriminated against in terms of education, nutrition, and medical care and are also treated as burden for the family (India Country Report on Violence against Children 2005; Deb 2006).


Child Abuse Generally


A national level study on child abuse revealed widespread abuse of girls and boys in India. Both boys and girls are equally at risk of abuse. The persons in trust and authority are major abusers. Five- to twelve-year-old children are in the high-risk category. About 70 % of the children have not reported the abuse to anyone. Two out of every three children have been physically abused, while two out of every three school-going children are victims of corporal punishment – half of these incidents occur in government-run schools. More than half of the child respondents (53.22 %) reported facing one or more forms of sexual abuse, while 21.90 % child respondents reported facing severe forms of sexual abuse that included sexual assault, making the child fondle private parts, making the child exhibit private body parts, and being photographed in the nude, while 50.76 % faced other forms of sexual abuse such as forcible kissing, sexual advances made during travel and marriages, and exposure to pornographic materials. Every second child reported facing emotional abuse, and in more than 80.0 % of the cases, parents were the abusers (Report on Child Abuse and Neglect. New Delhi: Min Women Child Dev 2007). In another study covering students from grades 8 and 9 of eight schools in Agartala, Tripura, Deb and Walsh (2012) found that 21.9 %, 20.9 %, and 18.1 % students experienced physical, psychological, and sexual violence at home. Girls were more often victims of sexual violence (25.0 % compared with 11.3 %).


Child Sexual Abuse and Trafficking


Child sexual abuse has been an age-old and deep-rooted social and cultural problem in India. India is also witnessing an increase in child trafficking, with West Bengal a focal point of activity (Indian Express, 16 Aug. 1999, p. 8; Sanlaap 2003; Sen 2005). As a result, child trafficking for commercial sexual exploitation has become a serious issue for policy makers (Deb 2002). Child trafficking involves the recruitment, transport, and transfer of children, through abduction, deception, or force, for exploitative purposes. Trafficking of children for commercial sexual purposes has become transnational and highly lucrative (International Labour Organization 2005; UNICEF 2005). As there is no reliable data concerning the worldwide prevalence and incidence of child trafficking for sexual exploitation, research is urgently needed to fill up the knowledge gap (United Nations Office on Drugs and Crime 2009). Although child exploitation in the form of forced economic labor is a much discussed issue, the booming industry of child sexual exploitation after trafficking is yet to receive adequate attention from researchers, academics, and social activists. In India, every year about 10.0–15.0 % of children, especially girls, become victims of child trafficking for a number of reasons like poverty, demand for girls as sexual commodities, and lack of adequate parental supervision (Indian Express, 16 August 1999). There have been many cases where children just disappear overnight, as many as 1 every 8 min, according to the National Crime Records Bureau, Ministry of Home Affairs, Govt. of India.


Social Factors Behind Trafficking and Sexual Exploitation of Children


Child trafficking and sexual exploitation of children, especially girls, is the product of a number of forces in Indian society and families. Socially, there is a lack of compulsory education until 2009, with about half of all primary school-aged children not attending school (Government of West Bengal 2008). Other statistics indicate that 73 % of children attend school to the end of primary school (UNICEF 2008), but even if accurate, this still means that more than one quarter of all primary school-aged children do not complete primary school. Because of the vast population of India, this means that tens of millions of young children are denied an opportunity to gain an education and skills, thus vastly limiting life chances and social mobility. It is relevant to mention here that the Government of India has enacted the Rights of Children to Free and Compulsory Education Act, 2009, which ensures free education for children between 6 and 14 years. Undoubtedly, this legislation will save a large number of children from trafficking although this law is yet to be implemented effectively in the truest sense.

Further, the traditional class system in India aggravates the problem as children from lower classes are denied rights and are habitually maltreated. This is exacerbated by a lack of functional child protection services. At a social and familial level, there is extreme poverty (Deb et al. 2005; Government of India, Press Information Bureau 2007), which compounds these societal factors. Indicating the widespread economic deprivation, 28 % of all children are born with low birth weight (UNICEF 2008), and the India National Family Health Survey-III found that more than 56.0 % of teenage girls in India are anemic, with a hemoglobin count of less than 12 g/dl, the world standard; this is especially serious in rural areas. In a study of 40 trafficked girls, Deb and Sen (2005a) found indications of these factors: the majority (82.9 %) were aged between 18 and 20 years; respondents were largely illiterate (57.1 %) or semiliterate (42.9 %); nearly all (91.4 %) had more than two siblings; and parents, who were mostly illiterate and very poor, were involved in agriculture as laborers or vegetable traders.

In another study, Deb et al. (2011) observed that a large number of trafficked were illiterate, with only 29.2 % and 26.6 % having attended primary school and secondary education, respectively. With regard to their parents’ education, about 38.3 % of the respondents’ fathers and 70.8 % of their mothers were illiterate. About 33.3 % of the fathers and 19.2 % of the mothers studied up to primary level of education. Only a few (19.2 % of the fathers and 8.4 % of the mothers) had studied at secondary level. The majority of the respondents lived in rural areas, while 33.3 % lived in urban areas and about 20.8 % of the girls lived in semi-urban areas. The monthly income of 45.8 % of the families was below Rs. 1,000 (US$24), 27.5 % of the families’ incomes ranged between Rs. 1,001 and Rs. 2,000 (US$24–US$48), and 13.3 % had an income above Rs. 2,001. Therefore, it may be stated that more than half of the families were living below the poverty line, according to the definition of poverty stated by the Indian Government’s Planning Commission (Government of India, Press Information Bureau 2007). Further, the authors revealed that about one third of the girls were sexually abused before being trafficked, and all of the girls were sexually abused after being trafficked. Nearly 45.8 % of the respondents indicated that they were sexually abused between 14 and 17 years of age, while 37.5 % were sexually abused between 10 and 13 years. The other 16.7 % were sexually victimized while very young, aged between 6 and 9 years. Regarding the perpetrators of the abuse, nearly 55.8 % were strangers, while 29.2 % were relatives. The remaining 15.0 % belonged to the “other” category, which mostly constituted known local acquaintances. About 73.3 % of the respondents stated that they were abused after being drugged and sold to brothels in major cities like Mumbai, Delhi, Pune, and Kolkata. Others stated that they left home after being lured by better job prospects in big cities and then became trapped in a cycle of abuse.

Finally, there are factors associated with perpetrators: In India, the male gender is dominant, making girls even more vulnerable. And there is a common misconception among the rural folk that people infected by sexually transmitted diseases including HIV/AIDS can get rid of the problem if they have sexual intercourse with a minor girl. Thus, a high risk for child trafficking and sexual exploitation is created by the proclivity of many adults to exploit children financially and sexually, within this atmosphere of overpopulation, poverty, lowly paid employment, illiteracy, lack of educational opportunities, general lack of promotion of children’s rights, and the limits on children’s life chances through poor education (Deb et al. 2011).


Dynamics of Trafficking


Offers of false marriages and jobs are the main two methods adopted by the traffickers in addition to abduction and sale for child trafficking (Deb et al. 2005; Deb and Mukherjee 2011). Many of those seeking marriage, enhanced employment prospects, and a higher standard of living are particularly susceptible to traffickers (Kempadoo et al. 2005). In cases of sale, parents sell their children, mostly daughters, for meager sums of money, who are then trafficked to cities or across borders. There is some evidence that relative poverty is more relevant to trafficking than the general socioeconomic status of the individual (Kempadoo et al. 2005). Deb et al. (2005) found that trafficking and commercial exploitation of children is overlooked in spite of border security and patrol. Typically separated from their family’s domestic servants or in other commercial roles in industries including agriculture, mining, and manufacturing, fishing, and begging, many victims end up in prostitution. Even in the apparently more regulated forms of commercial work, the trafficked children are susceptible to exploitation, including low wages, physical and psychological abuse, and overwork. These children are extremely vulnerable to abuse and exploitation, due to their low status and their traumatic experiences of parental abandonment, sexual abuse, transplantation into unfamiliar surroundings, and accumulation of denied rights, all without resources to assist (Mukherjee 2006).


Impact of Child Sexual Abuse and Trafficking


Like sexual abuse, trafficking causes numerous adverse consequences including psychological trauma (Pinheiro 2006; WHO 2002). In a study of 40 children, Deb and Sen (2005a) found that after their initiation into prostitution, about 80.0 % of the trafficked children became dependent on illegal substances and 20.0 % became pregnant unintentionally. Four children (11.4 %) were also HIV positive (Deb and Sen 2005a). Chatterjee et al. (2006) identified three categories of consequences: mental, physical, and social. Unsurprisingly, among the mental consequences, nearly every child suffered depression, loneliness, and loss of interest. Physically, nearly one in seven (6/41) was HIV positive. Socially, trafficked children were severely discriminated against in social and family life, by being disowned and exiled from their home village and family and excluded from marriage.


High-Profile Cases and Media Reports


In the last decade, the media has reported a number of cases related to violence against children. One such incident in the village of Nithari, Noida, Uttar Pradesh, revealed a horrifying picture of death of many children mostly girls after they had been sexually abused. Perhaps, the media coverage brought such practices to the attention of the public and policy makers that might have alerted them to the possibility of such a horrible crime taking place in their own backyard (The Times of India, Delhi, Feb. 14, 2009). Thereafter, the Ministry of Women and Child Development, Govt. of India felt the necessity to carry out a national level investigation to find out the nature and extent of child abuse and neglect in India.

Another recent case which shook the morale of most of the people in India is the gang rape of a 23-year-old physiotherapy student on a public bus, on 16 December 2012 in Delhi, the capital of India. This incident raised the issue of security for women and children in India. If incident like this could happen in the capital of India, what will happen in case of security of women and children of the rest of the country? This incident sparked large protests across the capital Delhi (Telegraph, Dec. 19, 2012). She was with a male friend who was severely beaten with an iron rod during the incident (NDTV, Dec. 21, 2012). This same rod was used to penetrate her so severely that the victim’s intestines had to be surgically removed, before her death 13 days after the attack (Hindustan Times, Dec. 21, 2012). In the 24-h period after the gang rape of the victim, at least two girls under the age of 18 were gang raped and one of them was murdered (CBS News, Dec. 21, 2012). The following day, there was uproar in the Indian Parliament over the incident. Members of Parliaments in both houses had set aside their regular business to discuss the gruesome rape case and demanded strict punishment for those who carried out the attack. Leader of the opposition in the Lok Sabha demanded that “the rapists should be hanged” (BBC News, Dec. 18, 2012). Thousands of people, mostly young, participated in a massive demonstration in 22 December in protest (ITV News, Dec. 23, 2012).


Signing International Protocols


This worsening situation has occurred despite India acceding to the United Nations Convention on the Rights of the Child (on 11 December 1992), which contains a number of articles requiring States parties to take measures to prevent abduction, sale, and trafficking of children (e.g., art 35) and sexual exploitation of children (e.g., art 34). On 15 November 2004, India signed the Optional Protocol to the United Nations Convention on the Rights of the Child (UNCRC) on the Sale of Children, Child Prostitution, and Child Pornography (2000), and India ratified this on 16 August 2005. This Optional Protocol contains a range of provisions about child trafficking and prostitution. States parties are required to prohibit the sale of children and child prostitution (art. 1), to ensure such acts are covered by criminal laws (art. 3), and to take measures to prevent sale and prostitution of children (art. 9). In addition, India has signed (on 12 December 2002), but not ratified, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000), which is a protocol to the United Nations Convention against Transnational Organized Crime. Article 9 of the Protocol requires States parties to establish policies and programs to prevent trafficking, to protect victims of trafficking (especially women and children) from revictimization, to reduce the vulnerability of women and children to trafficking, and to reduce the demand for trafficking. Article 6 requires parties to provide assistance to victims of trafficking so that they may recover physically, psychologically, and socially. This article also requires that domestic legal systems offer victims the capacity to obtain compensation for their suffering. In reality, much of the response in India to trafficking and child labor is undertaken by nongovernment organizations (NGOs), which provide services to the community such as rehabilitation shelters and homes, socio-legal services to victimized children, providing counseling to victimized children, and promoting awareness about children’s rights.


Reported Cases of Child Rape, Kidnapping, and Abduction in India


A large number of children across the world experience various forms of criminal offenses which include murder, rape, trafficking, kidnapping, and infanticide. There is no separate classification of offenses against children in India. Generally, the offenses committed against children or the crimes in which children are the victims are considered as crimes against children. Indian penal code and the various protective and preventive “Special and Local Laws” specifically mention the offenses wherein children are victims. The age of child varies as per the definition given in the concerned acts and sections, but age of child has been defined to be below 18 years as per Juvenile Justice Act, 2000.

The cases in which the children are victimized and abused can be categorized under two broad sections:



  • Crimes committed against children which are punishable under Indian Penal Code, 1860 (IPC)


  • Crimes committed against children which are punishable under Special and Local Laws (SLL)

A total of 5,484 cases of child rape were reported in the country during 2010 as compared to 5,368 in 2009 accounting for an increase of 2.2 % during the year, while a total of 10,670 cases of kidnapping and abduction of children were reported during the year as compared to 8,945 cases in the previous year accounting for a significant increase of 19.3 %. It can clearly be seen that there is an astonishingly low level of reporting of child sexual abuse and trafficking, given the real incidence.


Disposal of Crimes Against Children by Police and Courts


The average rate of charge sheet (a formal document of accusation prepared by the law enforcement agency after preliminary investigation) for all the crimes against children (IPC & SLL) was 83.9 % in 2010, which was the same in 2009 as well. The highest charge-sheeting rate was observed in cases under “Buying of Girls for Prostitution” (97.9 %) followed by “Rape” (97.5 %) in comparison to the national level charge-sheeting rate of 79.1 % for IPC crimes and 94.7 % for SLL crimes (National Crime Record Bureau, Crime in India, MHA, Govt. of India 2010).


State-Wise Conviction Rate in India (National Crime Records Bureau 2010, Ministry of Home Affairs, Government of India)

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