CHILD ABUSE(LAW AND SOCIAL TRANSFORMATION)
INTRODUCTION:
Child Abuse is the physical, sexual or emotional neglect or maltreatment of a child.1 To look at the child abuse with a legal perspective, one needs to go back to the history of child rights. In earlier times there were no rights protecting the children. A child was considered not to have mental element of its own and a guardian had all the power on a child to an extent that he/she could even take decisions regarding the death or life of a child. It was for the first time in 19th century that it was realized that children ought to have some rights because a child is one of the most vulnerable members of society. It was in the 19th century that Europe realized that that children can’t be treated in the same way as that of adults and laws were passed governing child labor. It was realized that education had to be made compulsory and obligatory for young children.
It was in 1919 , that League of Nations created a committee for the protection of children. And five years after this , 20th century saw “Declaration of Geneva” being adopted by League of Nations.
This was inspired by the work of Janusz Korczak , “father of children’s rights”.
“Declaration of Geneva” accepted the duties towards children irrespective of race, nationality or creed.
The duties were wide ranging from providing means requisite for normal development, food, nursing, help, shelter, priority at times of distress to consciousness that a child’s talents must be devoted to the service of men.
But the point of focus in “Declaration of Geneva” regarding this research article remains the duty that child “must be protected against every form of exploitation.
Declaration provided for protection from exploitation. Though League of Nations and “Declaration of Geneva” could not stop the gross human rights violation by Nazis during second World War . Holocaust stories published later showed the world how even the children were not spared .
And not only children of European Jewish community had to suffer , Polish children had to be migrated to safer places in order to save them
Finally when world war two came to an end in 1945 and United Nations, i.e. the child of League of Nations , was created, World saw Universal Declaration of Human Rights , 1948 which provided that motherhood and childhood are entitled to special care and assistance.
But a full fledged declaration on child rights came in 1959 in form of “Declaration of the Rights of Child”. It recognized child as a subject of rights.
1979 was observed as International Year of the Child.
On November 20, 1989 , the Convention on the Rights of the Child (CRC) was unanimously adopted by United Nations General Assembly2 which later on became the most widely ratified treaty in the World with United States of America being the only United Nations member which has not ratified it.
Now coming to the Indian perspective , we have legislations such as
Juvenile Justice (Care and Protection of Children) Act, 2015 which caters children that need rehabilitation , care and protection. It derives its powers under clause (3) of Article 15 which states protective discrimination and empowers state to make special provisions for women and children and clause (e) and (f) of article 39 which directs state to take care that tender age of children must not be abused and children shall be given opportunities to develop in a healthy manner and in conditions of freedom and dignity and that they shall be protected against exploitation and moral and material abandonment. It also derives its powers from article 45 of Indian constitution which directs that states shall endeavor to provide within 10 years from the commencement of constitution for free and compulsory education for all children until they complete the age of 14 years. Even the 86th amendment(2002) was one of the fundamental steps towards “right to education”; which is a recognition of children’s right to study. Article 47 is also source of power to Juvenile Justice( Care and Protection of Children Act,2015).
The Protection of Children form Sexual Offences Act(POCSO),2012 is one of the Indian Government most progressive laws. It qualifies penetrative sexual assault on children under the age of 12 as aggravated penetrative sexual assault. The punishment for which was recently made more stringent by providing death penalty for aggravated sexual assault on children and fines and imprisonment to curb child pornography. This Act is widely appreciated for its gender neutral approach
The Criminal Law (Amendment) Act 2013, introduced several new sexual offences under the India Penal Act 3
In the year 2000, Supreme Court introduced a law to ban corporal punishment4 but corporal punishment still remains a brutal reality throughout the country and the very sad part that came out during my visits in villages that people don’t even know about the fact and the practice goes on with sometimes parents asking teacher to give corporal punishment to their children. Many other research paper suggest that corporal punishment can lead to increased aggression, anti-social behavior, physical behavior, physical injury and mental health problems. When it comes to POCSO(The Protection of Children form Sexual Offences Act) , during my visit to serval police stations in Mathura, in western Uttar Pradesh, police stated that zero cases had been reported under POCSO act in past few years. On talking to the people, I realized that cases were not being reported due to several causes that included family reputation, which also emerged as one of the biggest causes to restrain people from reporting
In 2007, “A Study on Child Abuse: India 2007” was conducted by Ministry of Women
and Child Development (GOI) that revealed shocking figures concerning physical, sexual and emotional abuse
Two out every 3 children, in form or other had been subjected to physical abuse
Out of 69 percent physically abused children, 54.68 percent came out to be boys
More than 50 percent children were constantly being subjected to one or other form of physical abuse
Among children physically abused within families,88.6 percent were physically abused by parents
Andhra Pradesh, Assam, Bihar and Delhi have reported higher cases of abuse in every form.
50.2 percent children were working all the 7 days of a week
More than 50 percent children(53.22 percent to be precise) had faced one or more form of sexual abuse.
Andhra Pradesh ,Assam, Bihar and Delhi reported the highest percentage of Sexual Abuse among both genders
Severe Sexual Abuse was Reported by 21.9 percent of child respondents.5
THE GROUND ZERO STORY OF CHILD ABUSE LAWS
During my study review week, I went to several police station to ask whether there had been any case reported against child abuse. The common answer that I got from every police station in Mathura( a small town in western UP) was ‘no”. No cases against child abuse had been reported. So I decided to go out on my own and work to figure out reality
I took sessions in private and government schools with children in the age slab of 8 to 17 years, to which I got permission on the condition that school will not be named. Going in the schools and taking sessions with children and I realized that they were nowhere aware about the concept of Child Abuse and sometimes when a student became disturbing during the sessions , I witnessed male teachers using corporal punishment. In all of my sessions hardly any child had heard about the term POCSO and only one 8th standard girl could tell me the full form of POCSO that is Protection of Children From Sexual Offences but again to my disappointment she did not know about the Act and recent amendment made regarding death penalty for aggravated penetrative sexual assault.
I collected data from them my means of hand made forms that had to be filled in privacy. During which I also experienced a child filling the form of emotional abuse and then coming to me to ask for form that she had previously submitted and then turning the check sign in emotional abuse column to a cross sign; negating her entry; and returning the now to be considered empty form.
I could sense the tension in the atmosphere while explaining child abuse but when it came down to data collection, the response did not turn out in the way I hoped it would.
My sample size was in the age group of 8 to 17 (as I picked few children to hold a session with all the three schools) out of which only 2 children accepted to be sexually abused. Other responses were generally about emotional and physical abuse. Overall 17.7% children agreed to be subjected to any form of abuse. In the age slab of 8-12; 18.4% children accepted to have undergone emotional abuse and 9.2% children accepted to have been subjected to physical abuse (apart from corporal punishment they received by their teachers). In the age slab of 13- 17, emotional abuse cases in sampling came out to be 14% and 9.1% were that of physical abuse.
WHAT CAN BE MADE OUT ?
During my field work I realized that what is lacking in such places is legal awareness. A proper legal literacy is not there. Children don’t want to open up because they hesitate and that’s because our social structure is such that many cases are buried down inside the four walls of a house in order to protect family reputation which is further believed to be spoiled by involving police and letting your child be enquired.
As per NCRB 2016 report, the cases in which abuses were grandfathers, fathers, brothers and close family members, in India, stand at 4.4%. And in such cases, family prefers not to let other people know. This leads to underreporting and a number of cases never come out.
In 94.8% cases, according to NCRB, children were sexually assaulted by someone known to them. Out of which in 10% cases, culprits were family members or relatives. In 2015, 14913 cases were registered under the Protection of Children Under Sexual Offences ( POCSO ) Act. 8800 cases among them were about rape on a child. In 25% of cases registered, the culprits were co-workers, employees and 35.8% of such crimes were committed by neighbours.
These assaults and crimes on a child who is in a developmental stage leave a very bad effect psychologically. Some of them turn out to be criminals themselves while others start seeing the world with eyes of distrust.
According to a research paper published by Melissa Hall and Joshua Hall “The Long Term Effects of Childhood Sexual : Counselling Implications”-
“Sexual abuse that does not include touch and other types of sexual abuse are reported less often , which means this number of individuals who have been sexually abused in their childhood must be greater.” This brings into light one more reason of underreporting.
The very trust in world of a child begins with the family. They are the first people in the world that a child has to deal with. But in cases of incest ; this trust within the mind of a child is destroyed. And he/she doesn’t speak up. I consider the two responses that agreed being subjected to sexual abuse during my sampling as really brave ones. Because children get
traumatized and they don’t want to speak about their dreadful experiences let alone filling a form which will describe their experience in the form of just a check box. And when it comes to emotional abuse; it not only exists as an individual concept with wide scope but can also be regarded as an equal crime during sexual and physical assault keeping in mind that what kind of various psychological distress they can cause.
It is sad to realize that there is not much awareness about emotional child abuse. And the case remains same with physical abuse which though has laws governing it but despite that corporal punishment remains a brutal reality throughout the nation.
Emotional Child Abuse is something that people need to be sensitized about. The emotional wounds are long lasting and they can cause a harm greater than any other physical injury.
Emotional well being is something that people should aim about. Our aim should be towards making emotionally healthy society and a child is the most vulnerable unit of the society.
He or She is needed to be protected against mental exploitation. Though framing a law on
emotional abuse can’t be expected because of it’s subjective nature but society as a whole can be sensitized towards child emotional abuse.
Corporal Punishment which still prevails in schools all over the nation has never yielded to be helpful. Rather it creates resentment and anger in minds of children. Different children respond differently to abuse , and we can’t decide what is right way or wrong way to response to an abuse. Most of them never even tell their parents about what happened because they themselves could not understand what happened and what and how will they explain. And many a times when they tell their parents; their parents refuse to accept the facts if the person is an elderly member of victim’s family and when they do, they still refuse to report to police in order to protect their reputation. Even in school allowed to take samples on child abuse on the condition that they shall not be named which is quite evident as I would not do that even if the condition have been put forward. But the ques arises that why he need such confidentiality? That is because the society is still not open and victims are not given the required empathy and support for proper rehabilitation.
The social stigma keeps the justice faraway from the reach of the child and he/she uses trust in judicial, legal as well as social help
Legal literacy out to be one of the most needed things in areas such as Mathura and children should be made aware of their rights. Lack of knowledge, mental trauma, fear of consequences are the factors that restrain a child from reporting cases first to their parents and then if they are successful in their first step then parents are the one who are restrained from getting justice from their child by fear of family reputation getting spoiled, lack of knowledge social stigma and mindset that stereotypes police stations
A POSSIBLE WAY
As stated earlier, legal awareness is one of the most important things. Making laws doesn’t ensure justice. People should be made legally aware and should be informed about their rights, duties and procedures followed to reach the temples of justice that is courts.
Children shall be properly educated about their rights and shall be informed about remedies they have against corporal punishments. They should be made aware of the provisions of POCSO and shall also be educated about emotional abuse and whom they can approach in such a case when they require help.
State governments shall work on making a child helpline number that caters to the need of children if the threat exist within the family.
Children should be given proper sex education so as to generate in them a consciousness about the wrong from being done if any. Law makers shall take into account that though there cant be a law on emotional abuse due to subjective nature but there absolutely can be obligation to educate children about emotional abuse and Gram Panchayats shall help spreading awareness about emotional abuse
The NCRB data we have still can’t be deemed sufficient due to under reporting of child abuse offences.
The laws related to cyber emotional abuse shall be formulated covering wider aspect of emotional abuse and stringent punishments shall be provided.
For gross violations of child rights such as child marriages, kidnappings etc. government shall established a proper law and order situation. But for child marriage the fight shall be on a greater front that is societies are needed to be uplifted, Tribal communities shall be jelled up with mainstream societies. Child abuse as a term shall be interpreted widely and openly where we shall also include a child not being allowed to go to school as child abuse.
Child Rights and all the Efforts that government ought to do are not to be left on government only. Society needs to work as a whole in protecting the children that will became the backbone of our economy within the coming few years our demography might start resembling countries such as Germany and Japan. For a healthy and smooth economy , we need to protect our future that stands right Infront of our eyes as our children. To maintain the status of highest growing economy, we need a healthy and efficient workforce and in order to get so we need to protect our now venerable future workforce. So that we all see a healthy society tomorrow
Every child is special, every child is gifted. Exploitation in any form can be of great harm towards the personality, self esteem and self-confidence of the child
When children are subjected to child abuse or neglect; it makes them think that this world is not a very friendly place. Some might restrict themselves and become quiet( which is the worst response possible but as stated earlier, we can have no control over the response of such a child) and others might not be able to groom into powerful personalities that might be inherent to them but got loaded with traumatic experiences of child abuse.
Parents shall be encouraged to send their children to schools and likewise their should be brought a foster care system in order to rehabilitate children rescued from plight of child trafficking.
We have laws regarding many things, and remedies too but what we lack is proper implementation. It goes same as difference as a plan and its execution, and successful implementation of laws can easily open gates of social transformation. If we take the example of sati-pratha, it was one of the most prevalent social practices in India. But proper implementation of laws against sati by British government made people leave the practice with time. There had been various other factors involved but implementation of law was one of the important ones.
The very basic idea behind suggesting a few ways out to help children was to suggest proper implementation of already existing laws and a few more remedies and actions that can be brought into place so that the childhood can be saved and children can be protected against any kind of exploitation. Effective implementation can also help in addressing the problem of underreporting.
The research about the ground data was based on analytical approach that I have adopted in this paper. For collection of data (as I could not get from police stations.) I had gone to three schools; two private and one government; explained the topic in detail to the children with whom I took sessions and collected data from them in order to reach the given numbers that I have already stated in the section “The Ground Zero Story Of Child Abuse Laws”.
I keep the space open for any views or arguments that would negate my viewpoint on the matter and I hereby, in my research writing in this paper, and ask for a humble leave from the reader.
BIBLIOGRAPHY AND WEBLIOGRAPHY
FINANCIAL EXPRESS
VISTAS ONLINE
The Criminal Law (Amendment) Act, 2018 [No. 22 of 2018]
The Hindu – Business Line
https://www.urbanpro.com/a/punishment-in-schools-in-india-what-the-law- says/2653029
https://en.wikipedia.org/wiki/Child_sexual_abuse_laws_in_India
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NAME-KHYATI SHARMA