A multi-speciality approach to the protection of children from sexual offences act: A review

Abstract

Children constitute vulnerable section of the society, and governments have moral responsibility to safeguard their interests and safety. It does so by enacting various laws and providing framework for its implementation. Child sexual abuse (CSA) is widely prevalent in all societies and World Health Organization has promulgated broad guidelines against such practices. There are enough provisions against such perpetrators in India and suitable amendments have been provisioned based on inputs from various sections of the society. This article delves into the provisions of the act, its medicolegal application, and psychodynamics of such behaviors among the perpetrators.

Article 1 of the United Nations Convention on Rights of the Child (UNCRC) defines “Child” as a human being less than 18 years of age. The convention was adopted by the United Nations General Assembly in November 1989 and it came into force in September 1990. India ratified the UNCRC in December 1992.^[1,2]

The UNCRC defines terms such as “Protection” and “Child.” Children are vulnerable for abuse and government has a moral obligation to protect them. Protection for children would encompass guidelines and procedures against abuse and violence.^[1,3] The UNCRC provides various forms of protection to children that are enshrined in Articles 8, 16, 17, 19, 20, 22, 23, 33, and 34 of part 1 of the UNCRC. Article 19 defines “protection” as all appropriate legislative, administrative, social, and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, and maltreatment or exploitation, including sexual abuse. Article 34 makes the State Government responsible for protecting children from sexual exploitation and sexual violence.^[1]

Child sexual abuse (CSA) is prevalent although grossly underreported.^[4] Before 2012, Indian legal framework recognized sexual offences in three sections of Indian Penal Code (IPC). These were not specific to children. These were IPC Section 376 (rape), Section 354 (outraging the modesty of a woman), and Section 377 (unnatural sexual acts). This had many limitations. First, other forms of sexual offences such as sexual harassment and non-penetrative assaults were not legally recognized as criminal acts and, hence, not recorded. Additionally, Sections 376 and 354 were limited for females only and did not include sexual offences against male or trans-children.^[5]

With the enactment of a special law, i.e., Protection of Children from Sexual Offences (POCSO) Act, 2012, CSA was labeled in India as a criminal offence.^[5,6] CSA covers involvement of a child in sexual activity that he or she does not fully comprehend or is unable to give informed consent to. It includes an act for which the child is not developmentally prepared or that violates the laws or social taboos of society. Inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity amounts to CSA. It also includes trafficking and prostitution. Child sexual exploitation is when a third party derives monetary benefits out of CSA.^[1,4–6] POCSO Act was passed with the objectives of protecting children from the offences of sexual assault, sexual harassment, and pornography. It also aimed to establish special courts for speedy trial of such offences.

Child molester is a descriptive non-clinical term of an individual who engages in CSA. As per International Classification of Diseases–Tenth Edition,^[7]“Pedophilia” is defined as sexual preference for children usually of prepubescent or early pubertal age. In Diagnostic and Statistical Manual of Mental Disorders–5^th edition (DSM-5),^[8] the definition of “Pedophilia” is extended to involve the presence of recurrent, intense sexually arousing fantasies, sexual urges, or behavior involving sexual activity with a prepubescent child or children (generally aged 13 years or younger) for a period of at least 6 months, individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty. DSM-5 specifies that the individual is at least aged 16 years and at least 5 years older than the child or children they are attracted to. Prevalence of pedophilia is not known. Causes of such behaviors have often been debated. Pedophilic urges and non-pedophilic interests such as unavailability of an appropriate sexual partner are considered to be the driving factors.^[9,10]

The current article delves into the thought process of the perpetrator, relevant medical examination in a child, and legal provisions in to the same. The article is considered important from forensic, pediatric, and psychiatric perspectives and views from all three specialties have been assimilated.

METHODOLOGY

We did a literature review on acts of sexual offences against children, promulgation of guidelines, pioneers of the guidelines in the world and in our country, and case studies that led to the framework of the act being laid in India. Subsequently, we expanded the search to include “etiology of pedophilia” and “characteristics of pedophilic” and “pedophile strategies” and medical examination of such children. We used search engines Medline, Medline, PubMed, Psycinfo, and Google. We used keywords as Paedophilia, childhood sexual abuse, Perpetrator, sexual offences, POCSO Act, and child rights,

RIGHTS OF THE CHILDREN AGAINST CSA

UNCRC has made the government responsible to meet the basic needs of the children. It includes life survival, protection, education, health, and safety against violence, including CSA and child exploitation.^[1,11] As per the UN Office of the High Commissioner for Human Rights website (last update 06 Mar 2022), total of 196 countries had signed and ratified the UNCRC.^[12] The USA is the only country to have signed, but not ratified the convention^[12] (https://indicators.ohchr.org/).

CSA includes array of sexual activities such as fondling, inviting a child to touch or be touched sexually, intercourse, rape, incest, sodomy, exhibitionism, involving a child in prostitution or pornography, or online child luring by cyber-predators.^[13]

PSYCHIATRIC ASPECTS OF PEDOPHILIC BEHAVIOR

Dynamics of pedophilia behavior is based on power and trust dynamics instead of coercion and violence.^[14] The offender holds a position of trust and/or power and is often known to the child, for example, step father, elder sibling, or family friend. The abused–abuser theory^[15] depicts development of pedophilic interest by process of grooming by which a child is befriended to gain the child’s confidence. It creates a condition in which the abuser gains control over the child’s decision making. “Cognitive distortion ingresses” suggest that the child molesters adjust their cognitions by developing an idiosyncratic belief system, for example, having sex with a child is a good way for an adult to teach the child about sex.^[16] It may be a result of any adverse neurological event leading to dysfunctional sexual behavior in the victims.^[17–19]

Children are easy targets as they cannot defend themselves and are naïve. Perpetrators select target that are lonely and easily separable from the group. Some of the examples are street children, disabled children, chronic illness, affected by armed conflict, and orphans. Next, they attempt to gain affection of the child and then, gain trust of caregivers to get easier access. In fact, many seek to establish an emotional relationship with the child. Most child sexual abusers create a climate that breaks down the child’s resistance and, thus, enables them to victimize the child. Child sexual offenders do not conform to a homogeneous group. They vary in sexual orientation, marital status, or socioeconomic strata but majority of them are males.^[18] Most perpetrators have poor social skills, strained relationships with adults, emotional attachment problems, low self-esteem, self-devaluation with feelings of being powerless, and being vulnerable.^[19] Those abused before 16 years of age have been found to have higher pedophilic interest and/or developing relationship problems in the long run.^[14,19,20] Further discussion on this topic is beyond the purview of this article.

MEDICOLEGAL ASPECTS OF THE ACT

Nationwide uproar in Mathura rape case and the Anchorage shelter case paved the way for government to undertake study on CSA.^[21] This led to the framework of the act being laid and eventual passing of the POCSO Act. Offences such as aggravated sexual assault were defined in India back in 1956 when a school teacher had sexually assaulted a school girl.^[22] Penetrative sexual assault was initially defined to be peno-vaginal; post Nirbhaya case, it includes insertion of penis or any object into the anus, urethra, vagina, and mouth of a woman or child. It also includes manipulation of any body part so as to cause insertion.^[23] It is mandatory to report an offence and false reporting is punishable.^[23] Use of media for sexual gratification of an individual where a child is used is also punishable.^[5] Sexual Assault Forensic Examination Kit has made the rules of sampling and evidence collection easy in such cases.^[24] The essential components of the kit are as per Table 1. Table 2 summarizes quantum of punishments laid down for sexual offences against children. Amendments were promulgated to ensure stricter punishment and to serve as deterrent.^[25]

Table 1: The essential components of SAFE-kit

Table 2: Quantum of punishments laid down for sexual offences against children as well as amendments promulgated to ensure stricter punishment and to serve as deterrent

Figure 1 lays down the role and duties of registered medical practitioner (RMP) who sees such cases. It does not differentiate between a private and a government practitioner. Role of RMP in cases of sexual violence is legally mandated in all cases of sexual violence. Ideally, the examining doctor should be a female but in the absence, it can be performed with the help of a lady attendant.^[24] In brief, when a case is reported to special juvenile police unit, it is mandatory to record statement within 24 h. The child is taken to shelter home or sent back home if safe. Medical examination should be done by female doctor within 24 h. A support person and special public prosecutor are detailed. Rehabilitation of child is to be done and all preventive measures are taken to prevent child coming in contact with the accused.^[23,24] The act entails that the accused is assumed guilty until proven innocent. It is gender neutral for victim. The approach to the case is child friendly with mandatory reporting. Special juvenile police units are attached to the local police station who conducts the enquiry in civil clothes keeping the best interest of child in mind. It is bound by time limit of 1 year and interim compensation.^[6] The act has some loose ends as well for which it is often criticized.^[26] The act is often criticized for the award of death penalty and differentiation between minor and child while awarding punishment. Other facts that consensual sex between teenagers is considered to be in conflict with law. Physical age and not mental age of the child is commented up on. Underreporting of cases of CSA occurs because of local legal and social framework. Families face fear of indignity, guilt, and social ostracism.^[27] Rarely, even when such an incident is taken seriously, there is hesitancy in involving legal and child care agency.

Figure 1: Role of registered medical practitioner (RMP): Components of role of RMP in cases of sexual violence: It is legally mandated in all cases of sexual violence. The act lays down the role and duties of RMP. It does not differentiate between a private and a government practitioner

CONCLUSION

The POSCO Act marks an important landmark against CSA in India and continues to be in a state of evolution. Many incidents in recent past that stirred the conscience of the society have paved the way for many amendments and will continue to guide legislation in coming times. Existing framework facilitates and guides role of RMP as well as law-enforcing agencies. However, legal strategies need to incorporate medical knowledge aimed at understanding dynamics of such deviant human behavior. An evidence-based and systematic approach from the society, law, and the health care system is need of the hour. The authors recommend that scientific and clinical approach must be incorporated to reach judgment on case-to-case basis. The authors also recommend raising awareness among the parents and children about potential offenders so as to prevent such events by responsible reporting in the popular media.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.