Introduction
Indulging in any form of sexual activity with a minor is termed as child sexual abuse. Physical contact between a child and the perpetrator is not necessary. A child is a minor who cannot consent for any such activity and indulging him/her into a sexual activity is a crime. It is conductible in manners such as fondling with the child, showing pornographic videos; or any sexual activity that creates an impact on the child’s emotional, mental, physical health. The victims of such crimes are not only girls but also boys.
International Labor Organization is a United Nations agency for determining the standards of work. It strengthens social justice and deals with work-related issues. It also mandates opportunities to both the men and women who work on the basis of equity, security, freedom, and dignity. Indian Constitution guarantees the prohibition of child labor under Article-24. Child labor in itself is a crime. But indulging a child in any sexual activity in the form of labor is a heinous crime. Child labor does not only mean an employed child working in industries or factories. It also refers to children forced into sexual activities against their will.
When a child is involved in sexual activities such as prostitution or the use of a child for gaining sexual pleasure or pornography or indulging him/her in any sexual intercourse in the form of labor is also child labor, which is child sexual abuse[1]. It is the worst form of child labor. Child trafficking is also part of the heinous crimes. Selling and exploiting a child for pornography, recruitment of child soldiers, beggars, and forceful labor is unacceptable.
Victims of Child abuse and Pornography
A child is often a tool for sexual favors. There are many incidents taking place and reports of involvement of minors in sex trafficking. This happens because minor doesn’t possess the mental capacity to understand the difference between good or bad clearly. Some forcefully get into the field of prostitution, some into the profession of pornography, while others in some sort of illicit sexual activity.
They are victims of sexual violence, in case they refrain from performing the said act. This hinders their physical growth and deprives them of their childhood. These sexual abuses and minor’s exploitation have a long term effect on the minor. According to Article 2 ILO Convention Number 182, child pornography is the worst form of child labor. Under child sex trafficking the child is the laborer and delivers the service of prostitution; or is in use for making of pornography. This is an obstacle to the development of a child’s mental and physical state and is also the violation of child rights under UNHRC.
Child labor is an evil that exists in the society. It destroys not only their childhood but also their education and health. Some enter into child labor due to the economic condition of their family. The ordinary rule is that a minor below the age of 14 years cannot be employed, or permitted to work in any condition. However, according to the Child and Adolescent Labour (Prohibition and Regulation) Act of 1986[2], if a child does any labor in order to extend domestic help to his/her family, then, in that case, he/she is allowed to work; with the provision that the industry the child is working in provides non-hazardous work.
In one of UNICEF’s studies and the ILO it says that around 168 million minors across the world between the ages of 5 to 17 years are victims of child labor.
It is even worse that at a later point of time, they become the victim of child sexual abuse too. Some are even the victims of forced and bonded labor. They even become a part of illicit activities forcefully. The minors face sexually exploitation and because of a need for money they bear all the mental and physical trauma. Many times due to lack of knowledge about the type of touch or what exactly constitutes sexual abuse, they neither report about the incident nor realize the way in which they are exploited. Later, when they come to know about it, it is usually too late which leaves them with deep mental stress, depression, shock, emotional distress, loneliness, and post-traumatic stress disorder.
Impact on a child
A child who is suffering from sexual abuse has a devastating effect on his mental, physical, psychological status, both short-term and long-term. Short-term impacts include aggressive behavior of a child, sleep disturbances, eating problems, weird behavior and performance in school and public, and unwillingness to participate in any sort of social activity. Younger children might show symptoms such as thumb-sucking and bed-wetting. They may feel ashamed, powerless, and hate towards each and every one.
Long-term impact may be wide-ranging. Children become self-destructive in nature; trying to kill themselves, develop addiction towards alcohol and drugs, face anxiety attacks, and become insomniac. In the long run, these child victims also face difficulties while building relationships and sexual functioning during their adulthood. They get angry very easily because of carrying a heavy burden of not being able to save themselves from such abuse. Child victims also suffer betrayal and experience traumatic sexualization; also an inability to trust adults because of failure from receiving protection from exploitation. Due to such reason there a possibility that these victims might become re-victims.
A child when becomes a victim of such abuse it is very difficult to make him speak about what he/she is facing. They do not understand the meaning of good and bad touch and fail to protect themselves from exposure to such sexual activities. They feel burdened throughout their lives and face depression overages.
Legislative perspectives in India
According to Article-23(1) of the Indian Constitution, human trafficking and begging are forms of forceful labor; and any such forms of forceful labor are prohibited and anything done contrary to this clause is a punishable offense according to the law which would be prevailing at that time.[3]
Exploitation of a child for sexual favor or for the purpose of prostitution leads to forced labor because a child being a minor does not have a right to consent for any agreement taking place with him/her and any agreement entered by the child’s guardian on behalf of them for the purpose of employment would be termed as forced labor. And such misuse of a child’s service can be termed as child sexual abuse, it does not matter whether they are being paid.
Article-24 of the Indian Constitution prohibits the employment of a child in any sort of factories, industries, hazardous chemical factories, etc. Now just because a child is prohibited to work in industries and factories does not mean that they can be engaged in any form of domestic help, sex trafficking, prostitution. This is one of the worst forms of child labor. Although ILO has taken into consideration the minimum age limit as to certain areas where a child can be employed but there can be no criteria as to engage a child into sexual activities as it is against the fundamental laws of the constitution.
According to the Child Labour (Prohibition and Regulation) Act, 1986, a child employed in any form of industry is prohibited. Here “any form” can be analyzed as to industries related to sex trafficking industries, pornography, prostitution, and any industry which carries out sexual activities. Indulging a child in such an industry is the worst form of crime and it is a form of sexual harassment. A child who is providing services related to physical intercourse does not even understand the meaning of it and hence it is sexual abuse.
Punishment of child sexual abuse under the Provisions of IPC
Undergoing sexual intercourse or indulging in any form penetration, insertion, or manipulating without the consent of a person is termed as rape under the provisions of IPC[4]. Forcing a child to provide his services in such industries as forced intercourse which is rape. Indian Penal Code provides for laws against committing rape also what constitutes a rape. The punishments for the rape have been enumerated under Section 376.
An important ingredient in order to constitute rape is whether the male organ has been entered into the woman’s genital organ. Children who are indulged in sexual activities are the victims of rape because a child being a minor cannot give consent for any act or agreement. The punishment for sexual abuse of a woman can go up to three years of imprisonment or more including civil remedies to the victim, under the Indian Penal Code. The punishment for a person accused of rape is a minimum imprisonment rigorously for ten years, which can extend up to life and shall also be liable to pay fine.
Taking into consideration Tukaram v State of Maharashtra[5] which is famous as “the Mathura rape case”. A 16-year-old girl who belonged to a tribal community was raped by police officers. The Supreme Court in this case rejected the criminal complaint made by the girl’s family stating that there was no outward sign on the body of the girl which would state that she was raped. This judgment led to many protests and there were major changes made into the criminal law: for the very first time there was recognition of custodial rape; trials related to matters of rape shall be closed proceedings; there was also a ban in publicizing the identification of victims.
The international labor organization has been ignoring the worst form of child labor. Children are not only forced to provide service but they are being raped.
Role of Judiciary in the matter of child Sexual Abuse
Millions of children and adolescents have been victims of the worst form of child labor that is sexual abuse, which in itself includes sexual assault as well as rape. This is a grave injustice according to the norms of the society and major violations of the rights of a child. This sort of abuse is also in relation to a child’s employment. First of all, employing any child below the age of 14 in any sort of hazardous work is a crime under Article-24 of the Indian Constitution, secondly employment with regard to pornography, commercial exploitation for anything related to sexual abuse, prostitution is one among the heinous crimes that can be spotted, as considered by the ILO.
The High Court and Supreme Court have given various judgments on sexual assault against a child. In the case of the state of Punjab v Gurmit Singh[6] a 16-year-old girl was gang-raped, the Supreme Court has held that the testimony given by the victim would be considered superior. Cross-examination during the trial shall not humiliate or harass the victim and it shall be taken place in front of the camera. It would be advisable that such a trial should take place by women judges.
A girl child who was 6 years old was repeatedly sexually harassed in different locations in the school. The petition was that the case may be heard in a child-friendly manner as a child was in a traumatic condition. The court in this case held that the trial court must consider the feasibility of examining a child. It can take place in his chamber or after the post-lunch session when there is less crowd in the court and previous case trials have already taken place. It is important that the trial shall take place in a child-friendly manner[7].
Child sexual harassment is one among the persuasive problem which the society is facing at present. As the victims of these crimes are usually from the below poverty range they are not aware of the rights available to them. Such people lack education, as income is more important to them. They do not understand the depth of child labor. In today’s scenario, child labor is not only recruiting children to work in a hazardous environment in industries but also sex trafficking, pornography, etc.
Judiciary being the independent wing of the government fulfilling its duties? There have been instances where the judiciary is the most creative body had failed to prove its credibility. In the case of Mohd. Habib v. State of Delhi[8] the rapist was let free from punishment. The court did not consider the bite marks on the body of the seven-year-old victim who also suffered a ruptured hymen, as evidence of rape.
The Supreme Court has stated that every human has a right to live with dignity as provided under Article-21 of the Indian Constitution. Rape is not just against the body of a woman but the entire society, held in the case of Chairman, Railway Board v. Chandrima Das[9].
Provisions for protection of a child victim under POCSO Act
The major law amendment acts in India is the POCSO Act, 2012, in the world of crimes, which talks about the protection of children against sexual abuse.
POCSO Act, 2012 revolves around the framework of protecting a child from any form of sexual harassment and pornography also the proceedings where a child is the victim of such sexual abuse it has to be carried out in a child-friendly manner, recording of evidence, investigation and speedy trial of such offenses.
Acts that have been recognized as offenses under POCSO:
- Inserting any object/genital organ/ into the vagina of the child or urethra/anus/mouth or asking the child to do such activity, this is termed as Penetrative Sexual Assault.
- When a child is forcefully touched or is asked to touch another person, is termed as Sexual Assault.
- Passing sexually colored remarks, making sexual gesture/noise, repeatedly stalking them is termed as sexual Harassment.
- Pornography videos where is child is involved.
- Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault
According to the POCSO Act, any form of sexual activity indulged with a child below the age of 18 is considered to be a sexual offense. Under Section-40 of the POCSO Act, a child victim of sexual abuse can seek legal aid in accordance with the Code of Criminal Procedure. The act also states that any crime of sexual abuse faced by a child shall be reported immediately if a person who has such an information but fails to report shall be punished with imprisonment of six months, or fine or both.
Suggestion and Conclusion
According to the POCSO act, indulging a child into any sexual activity is an offense because any person below 18 years cannot give consent, so indirectly it’s turning into rape. Even when there are rights for the protection of children it is going unrecognized. Non-governmental organizations that are set up with a motive to spread awareness are failing to do so. Every NGO shall have its own PR manager who would cover the events through newspaper advertisements, posters, etc. It is very important to spread awareness in order to achieve success with good cooperation with the media.
Taking a note on the guidelines provided by the WHO for the protection of child sexual abuse, the safety of the child shall be the first priority while providing a child with medical treatment, there shall be confidentiality and proceedings shall be carried out with utmost privacy, the child’s personal choice and wishes have to be considered without fail, children, while provided with precautions and care, shall not be subjected to discrimination in any form.
Also, the government has set up compulsory education until the age of 14 years, but there are still children who do not go to school. Children who once start earning, for the money becomes priority they do not understand whether the mode of earning that money is suitable or not. The judiciary shall introduce stricter punishments for the accused who cause sexual harassment to a child.
The duration for rehabilitation shall be increased and there shall be maximum no. of residential centers for the street children. The government shall make awareness for sex education compulsory in every school and shall be explained about good touch and bad touch and means to protect themselves from being the victim of these crimes. There can be also counseling sessions in the company where a child is working as a domestic help after his/her schooling time. Counseling sessions are also needed for children in school in time to time basis.
Child labor can be fought against by educating the parents of these children about child empowerment, there shall be a comprehensive child protection policy in each and every school, where the children can complain about any sort of harassment and proper confidentiality shall be maintained. Special posts shall be appointed in village areas in order to spread awareness regarding the child abuse taking place in the society[10].
In order to eliminate the worst forms of child labor it is not only the responsibility of government organizations or international labor organizations, it is the duty of every responsible citizen to contribute themselves to this. A child today will be an adult tomorrow. Nation needs better tomorrow and these children are its future.
References:
[1] Forced Labor: The Prostitution of Children (https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article= 1149&context=key_workplace)
[2] The child and Adolescent Labour(Prohibition and regulation) Act of 1986 (https://indiacode.nic.in/handle/123456789/1848?view_type=browse&sam_handle=123456789/1362)
[3] The Constitution of India (https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf)
[4] Sec-375 of Indian Penal Code (https://www.iitk.ac.in/wc/data/IPC_186045.pdf)
[5] 1979 SCR (1) 810
[6] AIR 1996 SC 1393
[7] 113(2004)DLT125
[8] Appeal (Criminal) No. 82 of 1984
[9] 2000(2) SCC 465
[10] Minutes of the ‘Open House Discussion’ on ‘Rising Incidents of Sexual Violence against Children’ held on 15 May 2018 at NHRC, Manav Adhikar Bhawan, Delhi (http://nhrc.nic.in/sites/default/files/Minutes_Open_House_Discussion_on_Rising_incidents_of_sexual_ violence_against_children_15_05_2018_15062018.pdf)
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