An article from 1997 on CSA and the law

Ok 1997 was a decade ago, things have changed since then.

Or have they really ??


To Think The Unthinkable
The judiciary, like the rest of society, dangerously downplays the reality of child sexual abuse
Soma Wadhwa



Wives who make allegations of sexual abuse of their children by their husbands suffer from "some peculiar psychiatric condition". The alleged sexual abuse of an "infant child (who would have just passed her suckling stage then)" is a "seemingly incredulous" accusation to make. An allegation of child sexual abuse by a mother will be "concocted to wreak her vengeance" on her husband.

The medical examinations carried out at the behest of a mother which reveal "a wide vaginal opening—wider than would be expected of their age group" will at most support the probability of "what a mother might do with the little female child for creating evidence of sex abuse".

"A father is a father...and even if he is a bad father he still has the right to his children..."

THESE are no old wives’ tales. These are the observations, made by the Supreme Court, on wives, tormented children and allegedly abusive husbands. Uttered as observations in the Satish Mehra versus Delhi administration case filed by the former—challenging his wife’s allegation that he had repeatedly sexually abused their eight-year-old daughter from age three onwards—these words speak of a typical judicial attitude towards cases of child sexual abuse.
"Instead of addressing the legal and social problems related to child sexual abuse, such observations coming from the country’s apex court reaffirm the myths about the heinous crime," says Maya Ganesh of Sakshi, an NGO working with women and children in the area of violence. Verdicts such as these, the agitated activist points out, only add to the outdated beliefs that a mother who accuses her husband of this crime either doesn’t sexually satisfy her husband, wants to take revenge on him, is insane, or doesn’t take care of her children. "It’s quite a task anyway to convince people that bus conductors, drivers and domestic help are not the only ones who abuse children. That this is a crime that has children suffering in many apparently ‘normal’ homes. It would certainly help if the judges didn’t feel the same way too," she says.

Unfortunately, the hope seems misplaced. Even as the National Commission for Women conducts a National Consultation on Sexual Exploitation of Children in Goa this week with ministers and justices as speakers, a survey conducted by Sakshi just last year had 50 per cent of the 109 judges questioned from all over the country saying that child sexual abuse is not a common crime. They felt that the offence exists only amongst "uneducated, depressed and over-sexed people and/or people with a prostrate gland problem". A 48 per cent of the judges felt the perpetrators of such crime were not from within the family, but strangers and domestic help. Comforting beliefs, perhaps, but ones that are easily shattered even with the very meagre documentation done on the subject in the country. Bangalore-based NGO Samvada’s study—titled Preliminary Report of a Workshop Series and Survey on Childhood Sexual Abuse of Girls—carried out with 348 girls from schools and colleges in the city revealed that 83 per cent of the respondents had experienced some form of sexual abuse.


Two-thirds of the victims said their abusers were known to them, the majority of them being male members from the family.

THE case then is hardly overstated when the judiciary and the executive are asked to recognise that child sexual abuse is a grave reality that needs urgent attention. "The entire system—the judiciary included—has to do its bit towards finding a solution. There should be a ruling making sex education mandatory in our schools. A child should be taught to differentiate a good touch from a bad one," observes Sana Das of Samvada.

Till that happens, however, it is left to the judiciary to interpret touches and decide on the nature of offences. Which interpretations, often, are appalling. In the case of the government under-secretary, who was accused of repeated sexual abuse of his daughter, the abuse involved vaginal and anal penetration with a finger and forcing the child to have oral sex. Neither the district court, nor the high court or the Supreme Court was willing to acknowledge any of the penetrations as rape. The district court ruled in the CBI versus K.C. Jhaku case: "The word ‘penetration’ does not connote penetration of any foreign object. There must be penetration of the male organ, and that too in the vagina, otherwise, the act would constitute a carnal intercourse."

"The problem with the existing law on child sexual abuse is that there is no existing law on the subject," says lawyer Niti Dikshit. The absence of a separate law on child abuse means that sexual assault on minors is tried under Section 377 of the Indian Penal Code which makes the crime punishable for being "voluntary intercourse against the order of nature". Moreover, the minimum sentence for rape is 10 years while the maximum sentence under Section 377 is 10 years.

"What of the minor boy who is being forced into oral sex or the girl child who is being fondled and used as an object to masturbate...we always need a sympathetic judge to interpret the law favourably. We could do with a solid law," argues the lawyer.

THIS vagueness regarding the crime spills into police stations that are sought as the first refuge by harassed victims of the crime. The lack of specialised cells for a crime that needs to be treated sensitively has most such victims coming into the Crime Against Women Cell (CAWC). "We hardly have any investigative powers to deal with this crime. Nor do we have any counsellors to handle the complainants," admits deputy commissioner S.S. Grewal of Delhi’s CAWC.
"We often end up asking harsh questions but then we are not trained in the field."

The absence of trained professionals in the police stations and the courts while these cases are on, insists child psychiatrist Vinay Kshetrapal, can be detrimental to the mental health of the victim who is already traumatised. "Disbelieving questions and harsh attitudes can ruin a child’s confidence when he or she has just about mustered enough courage to speak out the unspeakable," says Kshetrapal. He insists that all such cases abroad are conducted with a counsellor monitoring the mental health of the minor victim.
"Sympathy is an imperative in this case."
So are laws.
As also a healthy judicial attitude.