The Goa Child Protection Act, 2003

Goa is a tourist hotspot that is frequented by young and old from all over the world, some of whom visit for the calming "holiday" atmosphere, some for the wild nightlife and woodstock reminincing, and some for more sinister activities..

Post-Father Freddy Peat and other similar cases where locals and tourists were found to be indulging in the sexual abuse of children/child pornography, the Goa Child Protection Act of 2003 made a strong statement in favor of punishing those who traumatized and exploited Goa's youth.

It can be downloaded and perused

CSA cases in India

Child rights activists all over the country were heartened by the news of the conviction of Wilhelm and Loshiar Marty by the Bombay Sessions Court on 29 March 2003, given the difficulties involved in prosecuting sex offenders in general and foreign paedophiles in particular. After the conviction of the notorious Freddy Peats in Goa on March 21 1996 not a single conviction of a foreign paedophile has taken place. This is ironic, considering that there is a great deal awareness about tourism related paedophilia in Goa today and unlike in the past, today the State too acknowledges the existence of this problem. The number of convictions or the lack of it actually defines the extent of the problem.

Today when NGOs lodge complaints with police officers they do not cast aspersions on the credibility of the complainants, as was often the case earlier. There are police officers in Goa who have investigated cases very effectively. The sad reality is that the will to effectively deal with this problem on the part of the State as a whole is still lacking. The police, the prosecutors, the courts, the Home Department and other state agencies involved have to be committed to stopping the menace of paedophilia.

The details of the cases given below illustrate the point:

Freddy Peats
Arrested on 3 April 1991, he was granted bail within 45 days, after which he freely roamed the state of Goa till he was convicted five years later. The Sessions Court expedited the case only after Mumbai-based child rights activist, Sheela Barse, filed a writ petition in the High Court in 1995 praying that the Sessions Court proceed with the trial on a daily basis. This resulted in Freddy Peats being sentenced to life imprisonment on 21 March 1996.

Kenneth John Clark
An 18-year-old boy from Andhra Pradesh filed a First Information Report against Kenneth John Clark, a British national on 9 October 1996, following which he was arrested by the Colva Police Station and charged under sections 372 and 377 of the Indian Penal Code, 1860 (IPC). The boy alleged that Clark subjected him to anal sex on several occasions. Apparently Clark also allegedly forced this boy to have sex with a 14-year-old boy in his presence. Clark was let off on grounds of insufficient evidence.

Ernie Jean François
In December 1996, Umed, a child rights organisation, received a complaint against Ernie Jean François, a Swiss national aged 52 years, who had brought a nine-year-old girl from Pune, with whom he was residing in Calangute. An informant told Umed that he had been visiting Goa each year since the last three years and that he always brought different children with him. The girl accompanying him at the time had reportedly been with him for almost a year, visiting various parts of India and not going to school. Umed brought this case to the notice of the local police. However, François was allowed to leave the country on 12 March 1997, as the police were apparently unable to find evidence of sexual abuse.

Peculiar features about this case underly the problem faced generally. The police took the girl away from the custody of the suspect only 10 days after Umed filed its complaint. No representative from Umed was allowed to be present for any hearings of the case. The conclusion of the case was communicated to Umed through an official letter from the Home Department of the state government. The letter states that the first medical report ruled out "the possibility of any forceful sexual intercourse" (emphasis added). It goes on to say "in a subsequent medical report the doctor has stated that on interrogation the child admits to having sexual intercourse with more than one person." But apparently, she had not had sexual intercourse with Jean Ernie François. No medical reports were attached to this letter and Umed's written request for the documents met with no response.

Although Umed representatives were not permitted to interview the child, it seems that the chairperson of the National Commission for Women, Mohini Giri met her. On 20 March 1997, The Hindustan Times reported that Ms Giri was 'rattled' by her encounter with this girl. The girl reportedly told her that 'the Swiss uncle would bathe her every morning and at night he showed her blue films and patted her on her face.' He would put her to sleep 'kissing her everywhere'. These sensational revelations did not result in any action on the part of the state, nor was it followed up by any action on the part of the National Commission for Women.

Meanwhile François continues to visit Goa.

Yvonne Rene Wallez
In March 1998, a case was registered by the Calangute police station against a 67-year-old man of Belgian origin, Yvonne Rene Wallez, for sexually abusing a 15-year-old handicapped boy under Sections 373, 377 and 294 of the IPC. However, on 13 May 1998, Wallez was found dead in his room. Jagrut Goenkaranchi Fauz (an organisation concerned with the social impact of tourism) had demanded an inquiry into the death of this man to ascertain whether this man had committed suicide to avoid judicial trial or whether any paedophile associates were involved in his death. However no follow-up was done by the police in this case.

Helmut Brinkmann
In August 1998, some residents of Calangute complained to the police about Helmut Brinkmann, a German aged 53, that he was a paedophile. This was a unique case because the child, a boy around 14-years-old testified against him and forensic examination revealed the presence of sperm in the anus of the child and it was proved that the sperm was of the suspect, Helmut Brinkmann.
Brinkmann was convicted for unnatural sexual offences by the Assistant Sessions Judge, Nutan Sardessai, and awarded rigorous imprisonment for six years. Brinkmann was later acquitted on appeal by the Additional Sessions Judge, D R Kenkre, on seemingly technical grounds.
It is interesting to look at the two judgements, which establishes how the same facts can be given such a diverse interpretation, based on the mind-set of the individual in office. In trial court's judgement three issues were formulated: Firstly, was the boy kidnapped? - In which case the accused would be liable under Section 363 IPC. Secondly, whether there is proof to convict the accused under Section 373 of the IPC; which pertains to buying or hiring a minor with the intent of or knowing it to be likely that such a person shall be used for either prostitution or illicit intercourse or any purpose which is unlawful or immoral. Thirdly, whether the accused committed unnatural sexual offences punishable under Section 377 of the IPC. The court ruled that there was no evidence of kidnapping, but there was evidence to convict the accused under Sections 373 and 377.

In the appeal court's judgement the two points formulated were: Firstly, whether the victim boy is an accomplice in commission of the crime and secondly, whether there is evidence to convict the accused under Sections 373 and 377. But while he has ruled that the victim is an accomplice in commission of the crime, he ruled that 'it is not proved that the guilty was indulging in unnatural offence'.

The judgement contends that to prove that the accused was guilty under Section 373 it was necessary for the prosecution to prove that the accused had carnal intercourse with the victim... and that it was against the order of nature. According to him 'the prosecution was required to prove Section 377 to prove Section 373'. A basic contention of the judge appears to be that the prosecution failed to establish that the accused had carnal intercourse with the victim. The judge ruled that the testimony of the child has to be corroborated in 'material particulars' for it to implicate the accused.

First of all, for a child to talk about being sexually exploited is rare, consequently a child's testimony needs to be given serious consideration. Moreover, in the judgement passed by Sardessai J. in February 1999 the trial judge viewed the evidence of spermatozoa in the anus as significant, as it was observed that it was not possible for discharge from the penis to fall on the anus of the same person. Kenkre J., however, has stated that 'discharge from the penis can fall on the anus' of the same person and has raised doubts about the possibility of sperm surviving for more than 48 hours without being 'washed out at the time of taking bath or cleaning the anus after natural course'. Sardessai J.'s contention was that it appears improbable that the sperm in the anus could belong to the same person, because of 'the anatomical position of the anus and the penis' (to quote Judge Sardessai's judgement).

Child rights activists were able to convince the State to appeal to the High Court against the decision of the Additional Sessions Court. But when the case came before the High Court child rights activists were aghast to learn that Brinkmann had left the country. The Public Prosecutor while informing the court that he was 'probably' not in the country, failed to draw the attention of the judges to the fact that the offender in question was a suspected paedophile.

In another travesty of justice the immigration authorities informed the Goa Police after Brinkmann had left the country in spite of a Look Out Circular against him.

Dominique Sabire Sabire was a Frenchman, aged 61 at the time of his arrest in 1999; an associate of Freddy Peats. A holder of two postgraduate degrees and a writer of bestsellers in French, he was caught at Delhi Airport, where he was in transit on his way to Thailand. There were previous references about his visits to Thailand in his letters. He left the country after jumping bail in February 2000, and continues to abscond. Ironically, the Campaign Against Paedophilia had warned the state of this possibility while conducting a campaign on the Brinkmann case.

Sabire was granted bail on 23 June 1999, but was required to report to the CBI office in Panaji every alternate day. He then made a plea that he be allowed to report to the Calangute Police Station as he was residing in Calangute. He was granted permission to do so from 16 February 2000. From 27 February he stopped reporting at the police station. However, Police Inspector Subhash Goltekar, who was in charge of the Calangute Police Station, informed the Public Prosecutor on 29 March, only 31 days after Sabire had stopped reporting to the Calangute Police Station, giving the Frenchman ample time to escape. Following this act of gross negligence on the part of this police officer, letters were written to the Director General Police demanding his suspension. However, to our knowledge, no action has been taken against him to date.
John Colin MiddletonMiddleton, a 71-year-old Britisher, was arrested on 19 March 2001 from a guest house in Benaulim where he was found with three Nepali children; two 13-year-olds and one 15-year-old, who he had brought with him from Nepal. According to Jan Ugahi and Childline, the organisations that had tipped off the police about the case, this man had a previous conviction for sodomy with a child in New Zealand. However, the Interpol has so far failed to respond to the inquiries of the Goa Police in this matter. Middleton was released on bail on 23 March 2001. His passport was later returned to him and he was allowed to leave the country. Unfortunately questions such as how three minor Nepali children were in his custody staying in the same room as him did not receive the attention they deserved.

Alan Dow
In May 2003 the police along with Children's Rights in Goa entered a hotel room in Calangute, and found Alan Dow with a 13-year-old girl, both skimpily clad and sharing the same bed. But as there was no forensic evidence Dow was allowed to leave the country and no case was registered against him.

From the case descriptions given above it is evident that serious attention needs to be given to the question of what needs to be done to protect children and prosecute paedophiles. In order to facilitate the prosecution of paedophiles the following points need to be realised by state authorities:o Investigation of cases of paedophilia should be given as much importance as cases of dacoity/narcotics and the NGOs should not be expected to do all the investigative work. Police should be motivated to investigate such cases by appropriate incentives, such as it reflecting positively in their service records.

Protocols need to be developed to ensure that paedophiles out on bail are prevented from escaping from the country. It should be a matter of procedure that the police communicate with immigration authorities and foreign embassies to alert them to the fact that the suspected offender should not be allowed to leave the country.

Sensitisation programmes have to be carried out among all those dealing with cases of paedophilia - the police, prosecutors and judges.

Existing laws should be used effectively to deal with cases of paedophilia until comprehensive laws are formulated to deal with cases of child sexual abuse.

Credit for this article goes to - Nishtha Desai, who is a child rights activist working with children in Goa.

I applaud her for her research and input but do not necessarily subscribe to all her viewpoints. For instance, the police need abuse specific education and training, incentives shouldn't matter.Secondly, there are NO LAWS against CSA and the Goa Children's Act is a state-specific deterrant which has it's limitations and loopholes as the aforementioned article clearly points out.

‘Police not equipped to handle child sexual abuse cases’

New Delhi, January 3

With more and more skeletons of children being unearthed from the D5 house in Noida’s sector 31, the “lapse in law and order situation” in the area has become the focus of all attention. “What is getting completely overlooked is that, this is a case of child sexual abuse (CSA) of the most macabre kind, and needs professional handling. The police are ill-equipped to handle such complex cases,” says Rajat Mitra, a clinical psychologist researching violent offenders and sex offenders. "The whole extent of the crime," says Mitra, "has yet not been unearthed."

"The police have been handling this case as one of serial killing and homicide. But the primary issue here is of CSA, especially because such a large number of children were involved. There is a high possibility of more involvements. The owner-servant duo might be sharing their interest with others and there can be other accused also," says Mitra.
"Most importantly, missing children are immediately associated with having run away from home," says Mitra. "Knowledge about CSA is so limited even among the police that they seldom connect a case with CSA," laments Mitra.
CSA offenders often collect trophies or souvenirs from victims -- such as a precious object or possession of the child.
If the police were well-informed or trained about such crimes they would be looking out for evidence of this nature, otherwise they wouldn't even be able to recognise such evidence, he feels.
According to Mitra, this is primarily a crime committed out of lust. The accused are very organised and plan their acts very professionally. The suspects in these cases need to be professionally interviewed so that they reveal the diabolical planning and their organised network.
He says, as the duo readily confessed to their crimes, it could be possible that they are masking other crimes. It could probably be an 'escape route'. “The accused should be probed professionally for the full dimension of the case to be unearthed,” demands Mitra.
The extent of tortures that the duo inflicted on the children can be known only through a proper interview.
On most occasions, CSA offenders enjoy sharing their experiences with others and at times, are known to film their acts and watch them with other pedophiles. Even a web camera can be used for this purpose, says the researcher.
“CSA offenders are habitual offenders. This would in all probability not be the only place where they have committed the crime. Moninder Singh is known to have houses in other cities as well,” says Mitra.
He laments, CSA is not recognised in India. There is no documentation and very little reports to go by.

He cites the example of a CSA offender that he interviewed recently, when it gradually came to light that he had abused several other children in other cities. More probing revealed that even missing persons reports had not been lodged for these children.

Sexist Legal System ?

A shocking recent judgement of the Supreme Court holds that no person can be punished for attempt to rape under the IPC. In this case a man, Tarkeshwar Sahu, a resident of Jharkhand, had lured a twelve-year-old girl to his hut, removed his clothes and the girl’s, and was trying to rape her. The SC only convicted the accused of molestation under Section 354 IPC which states that assault ‘intending to outrage’ the ‘modesty’ of a woman is punishable with up to two years’ imprisonment. The judgement is based on an erroneous interpretation of the law and also highlights the need for extensive amendments to deal with the law on sexual assault in general and child sexual abuse in particular.

Apparently, the Supreme Court held that Section 511 of the IPC only deals with attempts to commit offences punishable by life-imprisonment. A reading of the section and its illustrations will show that this is not true. Section 511 deals with attempts to commit any offence punishable by imprisonment for life, or other imprisonment, for which no specific punishment has been provided for in the code. The section states that an attempt to commit an offence will be punishable with half the longest term of punishment that is prescribed for committing the respective offence.

In the past we have had occasions to criticise judgments on attempt to rape because the courts, including the Supreme Court, have been extremely reluctant to hold a person guilty of attempt, even though the accused had, in fact, been trying to rape. Often the courts have relied upon technicalities to rule out attempt, particularly in cases in which the attempt was not at the last stage of the act. The courts have done this by drawing a distinction between the preparation to commit rape and the attempt to commit rape, and have invariably, as in this case, imposed a relatively minor punishment for molestation (up to two years).

In some cases courts have relied upon an old case decided way back in the 19th century (Empress V/s Shankar) which had held that a person can be convicted for an attempt to commit rape only if his conduct indicates a determination to gratify his passions and in spite of all resistance. Thus in various cases where a woman cried out for help or hit the assailant and he ran away, the courts have held that it cannot be said that the accused was determined to have sexual intercourse.

In the case of Jai Chand V/s the State, even though the accused (a hospital orderly) had forcibly laid the complainant nurse on the bed and after breaking the string of her trousers and removed her sanitary napkin, the High Court held that no attempt to rape had been proved, as the accused had not gone beyond the stage of preparation! The Court then proceeded to alter the conviction by the trial court of attempt to rape to one under Section 354 IPC, and punished the accused with two years’ imprisonment. All these judgements are informed with a patriarchal notion of what constitutes an offence of attempt to rape, which has not changed since the 19th century.

The judgement of Justices S B Sinha and Dalbir Bhandari also underlines the need for a law on child sexual abuse and change in the definition of molestation and rape. Sexual abuse of a child, even when it is not penetrative, should be an even harsher offence than molestation of an adult woman. Moreover, often, the sexual abuse of a child is not only by touching, but also by penetration of fingers and other objects. This at present is not recognised as rape under our law.

Furthermore, any non-penetrative sexual assault should constitute molestation and should be subject to a much higher punishment, even for an adult, than at present. The present definition of molestation makes an assault on a woman culpable only if it is done with the intention of outraging her modesty (whatever that means). Earlier the SC had held in a 1967 judgment that all girls possess modesty which is capable of being violated. The Rupan Deol Bajaj judgment in a positive interpretation held that all acts which are an affront to the dignity of a woman outrage her modesty.

The present judgement by interpreting the law is to forever excuse a man who attempts to rape and is as culpable as a rapist in many senses, is not only regrettable, but needs to be immediately reviewed by the Supreme Court itself. The judgement sets a dangerous precedent and will allow rapists, who have been unsuccessful in their attempts, to go unpunished for their real crime and to continue to pose a threat to women and children.

Seven Important Steps

This link i found while perusing a most informative training and sensitization website for children and care-givers of children.

http://www.darkness2light.org/docs/Final7steps.pdf

Adults and young children

It is perfectly normal to see an adult interacting with a child in a social situation. Parents and children, Teachers/Tutors and children, Nannies (ayahs) and children, Older siblings and children.

Sometimes, something doesn't feel right. A lot of women have mentioned things like a "bad gut" feeling about a particular adult's behaviour towards a child in a setting where adult-child interaction is a commonplace sight,say for example at a park or at the market. In many cases where alert women have actually managed to listen to their "gut" and avert further disasters (as was a case where a woman became suspicious of an elderly man and his behaviour towards a little girl and followed him. It turned out that the man and his wife were convicted serial child molestors who would have still been abusing children if this brave woman had not listened to her instincts and tracked them down).

Affection in any form, verbal, physical or simply via body language and reveal telltale symptoms that something is "just not right" in the situation. Here are a few things you need to look out for :

A person who -

Unnaturally controls the behaviour and decisions of a child?
Forces physical intimacy/affection on a child even when the child is clearly not comfortable with it.. (we call it "smothering the child with lust")
Harps on teenage sexuality/issues and verbally obsesses over sex and sexuality during interactions with children and young adults
Makes it a point to spend "exclusive" time with the child
Is overly interested in "hanging out" with the kids, even more than their own age group
Regularly offers to babysit and take children out for "treats" and games
Spends excessive amounts of money on the children (gifts,movie tickets,sweets)
Frequently walks in on children/teens in the bathroom while they are showering
Allows children or teens to consistently get away with inappropriate behavior
Is very in sync with current trends and fashions

If you feel that any of the above behaviour co-incides with the behavior of someone who sets your inner alarm bells ringing, do not panic. Instead, take deep breathes and consider the situation carefully. Assess the child's reactions to the person/people concerned and speak with concerned authorities if required to.

Thats not affection, thats child abuse

Excellent article written in April '06..
http://www.telegraphindia.com/1060404/asp/atleisure/story_6052721.asp