Child protection bill

[Guest guest]

STILL A MATTER OF SHAME

The new bill to protect children from sexual abuse does not address

the issue of the sexual rights of a child, writes Tarunabh Khaitan

The government has proposed a comprehensive legislation to protect

children, the offences against children bill. The bill covers

various types of offences against children, including corporal

punishment and bullying.

One of the central features of the bill is its provisions regarding

the age of consent for sexual intercourse. It seeks to criminalize

sexual assault (section 3) and sexual abuse (section 5) " with or

without the consent of a child below 16 years of age and without the

consent of a child who has attained the age of 16 years. " This

effectively fixes the age of consent for sexual intercourse to be 16

years, and a child below that age is deemed incapable to give

consent under the law .

The bill, on the whole, is a welcome measure. Section 377 of the

Indian Penal Code, which has been used until now to prosecute cases

of child sexual abuse, is thoroughly inadequate and makes no

distinction between consensual and non-consensual sex. Nor does it

give children the special treatment that they deserve. It is

primarily a homophobic provision, mainly targeted against gay men,

and its `utility' in prosecuting such cases is incidental,

inadequate and problematic. It symbolizes the Indian reticence on

issues concerning sex in general and child abuse in particular .

While there is widespread acknowledgement that child sexual abuse is

rampant, we choose to sweep it under the carpet rather than talk

about it. Even the attitude of parents is usually to cover up the

issue and blame the child, rather than confront the offender.

Thus, a separate legislation covering child sexual abuse was long

overdue.

Even if we assume that this proposed legislation will be accompanied

by the repeal of section 377 of the IPC, which would have lost its

residual legitimacy to exist on the statute book, the offences

against children bill will create yet another provision which can be

used to harass and penalize teenagers for victimless crimes, only to

serve public morality.

Let us consider a child aged 15 years, who has consensual sex with

another child aged 17 years. Under this legislation, the 17-year-old

would have committed a crime against the 15-year-old. If both of the

children involved are under 16 years of age, technically they are

both guilty of sexual assault, since neither of them is capable of

giving a valid consent in the eyes of the law.

The importance of protecting children from sexual abuse by adults

cannot be over emphasized. However, to criminalize children under a

legislation ostensibly meant to protect them solely on the basis of

a prudish denial of child sexuality is simply moral policing. As

Tatchell puts it, " the question is not whether children should

have sex but whether we should criminalize them for doing so. "

The hypocrisy of the law-makers is apparent when one compares this

law with the age at which children can be held responsible for

committing a crime. Under section 82 of the IPC, only a child up to

seven years of age is incapable in the eyes of the law of committing

an offence. Section 83 of the IPC recognizes that a child above

seven years of age but below twelve years is capable of committing a

crime if she/he has " attained sufficient maturity of understanding

to judge of the nature and consequences of his conduct on that

occasion. " Children above the age of twelve are treated at par with

adults in their ability to commit an offence. Therefore, a 13-year-

old can be held responsible for committing a murder and even rape,

but is incapable of giving consent for sex with another person of

the same age! This legal fiction is not only illogical but also

unrealistic.

What is the alternative? Can't the same doubts be raised for any

arbitrarily determined minimum age of consent? The answer may lie in

a flexible standard, as adopted under Swiss law. It fixes the

minimum age of consent at fourteen years, but clearly provides that

no child under the age of fourteen can be held criminally

responsible for such behaviour. It further provides that if the

child is over the age of fourteen, then she/he is not criminally

responsible if the difference between his/her age and that of the

other person involved is not more than three years. Therefore, a

three-pronged approach is adopted under Swiss law: all adult-child

sexual relationships are criminalized; no child aged below the age

of consent can be criminalized; for those children older than the

minimum age of consent, no criminal liability is imposed if the

difference in age between the young people involved is not more than

three years. This is a flexible standard, which allows a sexual

relationship between a 14-year-old and a 17- year-old, but not with

anyone older than that.

Germany and Israel also have comparable flexible standards. This

flexible standard is more realistic inasmuch as it acknowledges

child sexuality without criminalizing it or turning a blind eye

towards it. A further safeguard should include an express defence of

a " mistake of age of consent " if the victim is close to the age of

consent and the accused honestly believed that she/he was of the age

of consent. Further, in other borderline cases, where the difference

between the two people was four years instead of three, the law

should provide clear guidelines to the judge to refer the young

people involved to counselling on safe-sex and pregnancy rather than

imprisoning or fining them.

The shame culture that exists in India on every sexual issue has led

to an ethos where everything is fine as long as we don't have to

talk about it. This shame transforms into guilt, plaguing the family

members, community and ultimately the child. Every effort is made to

deny the abuse, and in the process, deny the sexual rights of the

child. The proposed legislation only reaffirms this social attitude

instead of challenging it.

The worst sufferers of this new legislation would be homeless

children who live on the streets and on railway platforms. With the

privacy of a roof denied to them, it is difficult for them to hide

their sexual encounters from the prejudiced eyes of the police who

are ever willing to pick up these children on the slightest pretext.

We are only making the most vulnerable of India's children even more

vulnerable at the hands of the state authorities who have a well-

documented history of abusing homeless children.

This child's right over his or her body includes not only the right

not to be violated by an adult but also the right to sexual

experimentation with peers. Criminalizing sexual contact between

children is the ostrich-like solution where we hide from the

problems we don't want to confront.

A more mature and reasonable response will be to ensure that the

children understand that they are in control over their bodies and

are empowered with the tools to act responsibly. Compulsory sex

education in schools would be a good first step. Not filling up our

badly-managed and already over-burdened juvenile homes with more

children, that too for having consensual sex with other children,

might be an equally good follow up measure.

http://www.telegraphindia.com/1060424/asp/opinion/story_6139419.asp

Forwarded by:

Meindert Schaap

e-mail: meindert@...