Provisions that address child sexual abuse

Commentary Provisions that address child sexual abuse

By Nishtha Desai

A stumbling block in the prosecution of paedophiles has been the absence of laws that comprehensively deal with the specific problem of paedophilia. The Goa Children's Act, 2003 contains certain provisions that address the sexual abuse of children in general and tourism related paedophilia in particular:

Definition of sexual offences (sexual assault, grave sexual assault and incest)
In Section 2, which deals with definitions, sexual offences are classified into 'grave sexual assault', 'sexual assault' and incest. 'Grave sexual assault' covers all form of sexual intercourse including oral sex and anal sex as well as offences such as making children pose for pornographic films, making children have sex with each other and deliberately causing injury to the sexual organs of a child. 'Sexual assault' includes showing children pornographic pictures and exhibitionism.

By including a wide range of possible activities that an offender may engage in, the focus will shift from the present one-point-programme of detecting semen in the vagina/anus of the child, in investigating cases of child sexual abuse.

Punishment
The punishment prescribed for grave sexual assault under Section 8(2) is 7 to 10 years imprisonment and a fine of Rs 2,00,000.

• The punishment for sexual assault is a sentence of up to three years and a fine of Rs 1,00,000. [Section 8 (2)]
• The punishment for incest is imprisonment for a period of one year and a fine of Rs 1,00,000. This is in addition to the sentence for the sexual assault or grave sexual assault that is committed by the offender. [Section 8 (2)]

Children staying with unrelated adults

• Three months from the commencement of this Act, any adult staying with an unrelated child is required to register with the Director, Women and Child Development. If the Director deems necessary, he/she will authorise the District Inspection Team to inspect the case and submit a report with recommendations. Failure to inform the director can attract a fine of Rs 1 lakh and imprisonment of one year. [Section 8 (4 to 9)]
• Hotels and other establishments that provide boarding lodging or any similar facility have the responsibility of ensuring the safety of children in their premises. Significantly, no child shall be allowed to enter any room of any hotel or establishment with an unrelated adult, with exceptions being made for 'reasonable areas' such as a teacher with students or children staying with friends. The owner and the manager will be held responsible for violation of this section. [Section 8 (10 (a) to (b))]
• All hotels and establishments are expected to see that children do not have access to Internet facilities that are not fitted with filters and that they have no access to any 'objectionable material' through any other medium such as videos, cable. [Section 8 (10(c))]

Non-bailable offence

• Tourism related child sexual abuse is considered a non-bailable offence as defined under Section 2 (a) of the Code of Criminal Procedure, 1973, (CrPC). [Section 8 (11)].
• In February 2000 Dominique Sabire, an associate of Freddy Peats, jumped bail and disappeared. It is hoped that this provision will prevent such a recurrence.

Responsibility of photo studios / film processing units

It is the duty of all photo studios and developers of films to report to a police officer not below the rank of a DySP in case they find that photos/films developed by them contain sexual/obscene depictions of children. Failure to report will result in a minimum sentence of one year and/or a minimum penalty of Rs 50,000. This law can serve to apprehend paedophiles like Freddy Peats who was found in possession of 2,305 pornographic photographs, many of which must have been taken over the 10 years that he operated his racket.

Facilitating the sale and abuse of children

• Anyone who facilitates the abuse of a child by soliciting, publicising or making children available for their commercial exploitation will be viewed as engaging in unlawful activity. This includes hosting web sites, taking suggestive or obscene photographs, soliciting customers, guiding tourists…or any other form, which may lead to the abuse of a child. [Section 8 (12)]
• The sale of children in itself is an offence and can be punished for one year extendable to three years and a minimum fine of Rs 50,000. [Section 8 (13)] A detailed clause is devoted to describing what is meant by the sale of a child. [Section 8 (16 (a) to (e)]. This will help in prosecuting those who engage in the trade of babies. Around seven years ago when Bailancho Saad, a women's collective investigated a case of a baby being sold by a hospital, they were shocked that while the sale of a child for sexual trafficking was a crime, the sale of a baby in itself was not recognised as a crime by law.

Children in cyber cafes

Children below the age of 14 years cannot enter a cyber cafe or any other facility providing computer services unless accompanied by an adult. Such establishments shall also ensure that child-friendly safeguards are installed and that children below the age of 14 years can only access the internet in the presence of an adult from the establishment. [Section 13, Other Provisions Clauses (16-18)]

Trafficking of children

The law authorises airport authorities, border police railway and traffic police to report any case of adults travelling with a child/children in suspicious circumstances or any suspected case of trafficking. Such adults maybe detained for questioning at the nearest police station. [Section 8 (15)]
Anyone who exploits a child for commercial sexual exploitation shall be liable to pay a penalty of upto Rs 1,00,000 and simple imprisonment of one year (in addition to any other penalty that is attracted by any other Act in force). [Section 9 (4)]

Pro-active steps recommended by the act

A basic thrust of the law is to evolve a society that is child friendly. In this spirit it provides for proactive measures on the part of the state. Some of these measures are:

The setting up of Victim Assistance Units:

This is an especially welcome measure which will entail setting up of units that include social workers/counsellors to help the child to deal with the trauma of abuse and which will prepare him/her for court procedures. [Section 8 (19)]

Sensitisation of the police and sensitisation training for all those involved in the healing, rehabilitation and other assistance programmes for child victims: Police officers will as part of their training be familiarised with the rights of children and the relevant laws. [Section 8 (20-21)]

Better investigation techniques: The government is also authorised to appoint persons to go under cover and pose as clients for child prostitutes or as employers for child labour, for better investigation. [Section 8 (23)]

Evolving a child friendly tourism code: The tourism department in collaboration with the travel and Tourism Trade of Goa is to formulate such a code. This will facilitate the detailing of 'good practices' to be adopted by all members of the tourism industry in the best interests of children. [Section 8 (22)]

Setting up of a children's Court: The setting up of a Children's Court to try all offences against children is a bold step prescribed by this law. A child friendly court will help to minimise the double trauma that abused children are subject to in courts, which even adults find awesome and terrifying. [Section 8 (27)]

The Goa Children's Act is unusual because it does not merely recommend punitive measures against offenders. Instead, in dealing with child sexual abuse it attempts to place responsibility on different sections of society to play a role in protecting all children and preventing the abuse of any child. The hotel owners, the photo studios, cyber cafe operators, the police, the tourism department and all those involved in the travel and tourism trade are expected to keep their eyes open and fulfil their duties, sensitive to the situation of any child they may come across in the performance of their duties. Moreover, it also seeks to establish child friendly court procedures, which will help to ensure that children are able to give evidence without being exposed to the presence of the perpetrators of the crime.

Already there have been at least three cases booked under the Goa Children's Act. However, the rules are yet to be formulated and the Children's Court also has not been set up yet. Bailancho Saad filed a writ petition in the High Court challenging the failure of the government to set up the Children's Court and constitute the jury so that the Goa Children's Act can be implemented. Consequently, the High Court recently ruled that the Children's Court would be shortly set up. As with any law much will depend on how the Goa Children's Act is implemented. Child rights activists throughout the nation are observing Goa with keen interest. Let us hope the Goan experience will inspire the rest of the nation.

Nishta Desai is a child rights activist working with children's rights in Goa.

For more information on 'Children's Rights in Goa' (CRG), write to:
crg@sancharnet.in


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