The recent, Mira Road expose of a father's sexual abuse of his daughter for nine years has opened a Pandora's box of similar cases of incest across the country. Increasingly, this is also shedding light on the legal system's shortcomings in dealing with incest, as well as on social attitudes that hinder effective solutions.
The Indian legal statutes do not contain any specific provisions against incest. Many developed countries such as Britain, the US and Germany have strong laws against incest. UK, which made incest punishable in 1908, sets a prison term of 12 years for the offence. Punishment in the US varies from one state to another; extending to 20 years in the state of Massachusetts, while in Hawaii it is five years. Some countries have, however, abolished or diluted their laws against incest - this is invariably because many of them viewed sexual partnerships between closely related persons - even adults - as incestuous, and in recent years there has been some liberalisation of their views on this. Incest involving minors, on the other hand, is uniformly frowned upon in the developed world (and is also the specific focus of this article).
As everywhere else in the world, in India too incestuous conduct is almost never consensual. Instead, it is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is child abuse by parents and other elders confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power, which triggers and feeds incest in families. This power is multiplied several times over when the relationship between the abuser and the abused is of father and daughter. Disbelief, denial and cover-up to 'preserve the family reputation' are often then placed above the interests of the child and its abuse.
Some years ago, in a popular late-night legal-awareness television serial Bhramar, one episode explored the true case of a father impregnating his 14-year-old daughter after abusing her sexually for months together while the mother was forced to remain silent. For fear of a public scandal, the parents decided to poison the girl. The paternal grandfather, the sole witness to the murder, complained to the police. But the perpetrator went scot-free on the argument that he had other children to care for, and if he were to go to prison, they would be orphaned! When the criminal was set free, the older man left the home and was never seen again.
A report from RAHI, (Recovering and Healing from Incest), a Delhi-based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly three-quarters of upper and middle class Indian girls are abused by a family member - often by an uncle, a cousin or an elder brother. Anuja Gupta, founder-executive director of RAHI says, "Not legislating a strict punishment amounts to the law reiterating that it is not a serious issue. If stringent punishment were made legal, then it has to be accepted that incest exists. But we don't even want to admit that. It is treated more like an aberration so there is no harsh punishment. This is true across the world and it is a terrible truth to own up to."
A 1985 study by the Tata Institute of Social Sciences revealed that one out of three girls and one out of 10 boys had been sexually abused as a child. Fifty per cent of child sexual abuse happens at home. In 1996, Samvada, a Bangalore-based NGO, conducted a study among 348 girls. 15 per cent were used for masturbation mostly by male relatives when they were less than 10 years old. Seventy- five per cent of the abusers were adult family members.
Vidya Reddy, who runs Tulir-CPHCSA (Centre for Prevention and Healing of Child Sexual Abuse) in Chennai, says, "Most people imagine abusers to be shadowy and frightening strangers with a psychiatric disorder. In fact, often an abuser is a 'regular' person who leads a 'routine' life and is known to the victim, but has no inhibition or qualms over having sex with children." This was proved to be true in the Mira Road case. Neighbours and local residents who know Chauhan well were shocked because he appeared to be a decent and well-behaved person.
Women's rights activist and lawyer Flavia Agnes opines, "In most cases of sexual abuse, it is the father who is responsible for the heinous crime. He is the custodian of the child. So a case of custodial rape should also look at the father as a suspect. Somewhere, we do not want to interfere with our family values and choose to keep quiet about such cases." The tight-knit family structure, the domineering role of the fathers and uncles, the submissiveness of women who are mute witnesses to gross injustice and the ingrained tendency not to allow "family shame" to be exposed whatever the cost, are factors that help the abusers get away with it all.
But there are those who disagree with this view. One expert with a contrary view is Mohammad Abdul Kalam, professor of Anthropology at the University of Madras who says that cases of incest should be seen as individual perversions and believes that stricter laws would not bring down incest in Indian society.
Legal lacuna
What Ramalingam does not say is that the same father cannot be held under the law for anything called 'incest.' Indian laws do not even recognize incest as a crime, though rape and sexual abuse, especially of minors, are serious crimes relating to incest. The Delhi High Court is considering framing guidelines for conducting investigation and prosecution in crimes relating to incest, in the wake of several incest cases surfacing at present. But Ramalingam believes that the existing laws would suffice to punish the perpetrators of crimes like incest and CSA (criminal sexual assault).
Child rights activists have long been demanding a more clearly defined law to prosecute perpetrators of incest. In 1983, the law against rape was amended to include policemen, hospital and prison staff who abused women in their custody which amounted to custodial rape. But it did not include sexually abusive fathers, whose sexual abuse of a daughter is the worst form of custodial rape.
Legal Loopholes
- There is no central law on child abuse.
- Laws dealing with sexual offences do not specifically address child sexual abuse.
- The India Penal Code 1860 does not recognise child abuse. Only rape and sodomy can lead to criminal conviction.
- Anything less than rape, as defined by the law, amounts to 'outraging the modesty.' These laws are already problematic when applied to adult women. They are even more difficult when applied to children.
- While sec. 376 IPC seeks to provide redress against rape to women, it rarely covers the broad range of sexual abuse (particularly of children), that actually takes place.
- Most of these forms of abuse are sought to be covered under sec. 354 of the Indian Penal Code as a violation of a woman's modesty. Though offences under Sec. 354 of the IPC are cognizable, they are also bailable, allowing the perpetrator to abscond before the case comes up in court.
- The Juvenile Justice Act, amended and rewritten in 2000, makes no attempt to identify sexual abuse on children. Sec. 23 of the Act deals with assault, exposes, willful neglect, mental and physical suffering, for which imprisonment prescribed, is only for 6 months.
- Section 5 of the Immoral Traffic Prevention Act 1956 prescribes punishment of not less than 7 years for inducing a child into prostitution, but does not directly address child abuse.
- The word 'rape' within law, is too specific because it does not include abuse on boys.
- 'Intercourse' is often interpreted to mean with an 'adult' and almost always implies 'consensual' sex.
Sudha Ramalingam, lawyer and activist with the People's Union for Civil Liberties points out that if a father perpetrates abuse on his daughter, he could be arrested for custodial offences. "But in a society like India, the family wants to protect both the perpetrator and the victim. That is why most of such crimes go unnoticed. They are anxious to protect the child's future and safeguard the reputation of the family. The psychological and physical impact it would have on a child is rarely taken into consideration."
Says Delhi-based senior consulting psychiatrist Dr. Sanjay Chugh, "child sexual abuse often comes to light when childhood histories are explored and in most cases the perpetrator is a known person who is close to the family or inside the family." He is concerned about the effect of incest on the victim. "The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not to allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counsellors can bring the victim's faith in the goodness of human beings back," he explains.
"People need to realize and accept incest as a part of our society that happens in every socio-economic group. Closing our eyes and getting into the denial mode will not make the problem go away. We need to spread the word at a mass level where people are made aware not only about its existence but also about the help available. Workshops in schools and colleges that highlight such problems should be conducted for children and teachers to become more sensitized. Parents need to be educated about how they can protect their children or help those who have suffered. We need to take the responsibility of educating each other, reaching out to each other and take active steps to stop this physical, psychological and social pain that gets inflicted upon innocent lives," Dr. Chugh sums up.
Incest, he says, will persist as long as the collective conspiracy of silence within the family, the state and the society allows it to go on.
The provisions in the laws for tackling paedophilia as well as the incestuous abuse of children are far from adequate.
In a span of 15 days, Goa has seen four cases of heinous child abuse, and once again a problem long known to exist is in the spotlight. The state is now witnessing an alarming rise in sexual abuse against children in the 7-16 age group. The recent arrests and investigation by social groups reveal that more than 10,000 paedophiles visit the coastal state every year and molest children, especially brought for the trade from Karnataka. Recent cases prove that many foreigners implicated in this exploitation lure children with expensive gifts and money. They also buy gifts for the families of the children, to convince them to let the young ones stay with them. But the exploitation is also Indian, and not limited to crimes committed by tourists.
The first of the recent cases is especially shocking. A 9-year-old girl was alleged raped by an Italian, aged 56 years, a frequent traveler to Goa. Navhind Times reported earlier this month that it is now believed that he has been abusing many children for over 10 years. A popular host to many parties, he used a perviously abused girl to procure a child as a domestic servant in his house. It is alleged that he raped her for three days continuously after tying her hands and legs, and that he performed forced anal sex on the little one.
A shameful history
Foreign paedophiles are not new to Goa; it is well known that many visit tourist destinations around the world for a few months every year, usually in the months corresponding with winter in their country of residence. In Goa, tourist agents involved in the racket provide information on beaches to visit, and how to find and approach potential targets. The 'channawalla' or the 'ice cream seller' on the beaches acts as a pimp. In some cases, a child lives with the paedophile in his room, with the knowledge of the proprietors of the hotel or guesthouse. A number of impoverished families from the nomadic Lamani tribe as well as from villages in northern Karnataka are engaged in vending wares on the beach. Their children inevitably interact with foreign tourists lounging on the beach, providing an easy and regular avenue for exploitation.
The history of this crime in the state is long, and as a result Goa is destined to become the child sexual abuse capital of the world, having already attained that status within India. The first 10-year long racket of paedophilia came to light in 1991. Freddy Peats, the aged mastermind, is presently serving life imprisonment in Goa along with his accomplice, New Zealander Eoghan Colm McBride, also into his sixties. Interestingly he enjoyed the respect of the people of Margao for his supposed dedication to the welfare of poor children. Five of his partners from Australia, Sweden, Bangkok, Germany and France are still absconding.
The state's response to these crimes has been appallingly indifferent; Peats' conviction was a rare prosecutorial success in an ocean of neglect and failures. More typically, cases are rarely brought, and almost never concluded properly. A good example of this is the case of John Colin Middleton, a 71 year-old Briton, who was arrested on 19 March 2001 from a guest house where he was found with three children he brought with him from Nepal. He was alleged to have served a sentence for a previous conviction for sodomy with a child in New Zealand. Middleton was released on bail on 23 March 2001. His passport was later returned to him and the case against him was declared 'closed'. Such arbitrary waivers of prosecution and punishment are common.
The legal picture
Paedophilia, or Child Sexual abuse [CSA], is the physical or mental violation of a child with sexual intent, usually by an older person who is in some position of trust and/or power, vis-à-vis the child. The term paedophile refers to any adult who habitually seeks the company of a child/children for the gratification of his/her sexual needs. A child is defined variously by different Indian laws. In this article, a child is defined by age - as anyone below the age of 18 years - as per the definition contained in the Convention on the Rights of the Child.
Child sexual abuse occurs in three ways typically: incestuous abuse (i.e. by family members of victims), sexual abuse by strangers, and child prostitution. In conservative societies, as ours is, incest is less likely to be reported to the police, because of fear of social disgrace. Families often chooses to 'resolve' the issue privately because they view it as not a criminal matter. From the victim's point of view, however, incest may be more traumatic than rape by strangers, because such behaviour may be continued over a period of time and the victim remains helpless to protect herself from such abuses. In addition, it may have long-term psychological effects. The victim develops an inner sense of guilt and depression, which may have long-lasting effects on her personality development.
The laws dealing with sexual offences do not specifically address child sexual abuse. It is disconcerting but true, the India Penal Code 1860 does not recognise Child abuse. Only rape and sodomy can lead to criminal conviction. Anything less than rape, as defined by the law, amounts to 'outraging the modesty'. These laws are problematic when applied to adult women, but they are even more difficult when applied to children. While sec. 376 IPC seeks to provide women redress against rape, it is rarely interpreted to cover the broad range of sexual abuses [particularly of children] that actually takes place. The word 'rape' is too specific, this does not include abuse on 'boys'; moreover, 'intercourse' is often interpreted to mean with an 'adult'.
Most of these forms of abuse are sought to be covered under sec. 354 of the Indian Penal Code as a violation of a woman's modesty. Offences under Sec. 354 of the IPC is a cognisable offence but is also bailable, which allows foreigners to simply leave the country before prosecutions begin. While Andhra Pradesh, by a state amendment, has made the offence cognisable, non-bailable and to be tried by a court of session [where the minimum punishment is imprisonment for 7 years, and a fine], other states have not followed. What is also lacking is a central law on the subject. The Juvenile Justice Act was amended and rewritten in 2000, but it makes no attempt to identify sexual abuse on children. Sec. 23 of the Act deals with assault, exposes, willful neglect, mental and physical suffering, for which imprisonment for a term of just 6 months is prescribed. Sec. 5 of the Immoral Traffic Prevention Act 1956 prescribes punishment of not less than 7 years for inducing a child into prostitution, but does not directly address child abuse.
India is a signatory to the UN Convention on the Rights of the Child 1989. India ratified this Convention in 1992. This international Convention obligates members States to protect and promote the physical and psychological health of children. State parties must take affirmative action in protecting children from all forms of sexual abuse, neglect, exploitation, torture, or any form of cruelty.
The Goa Children's Act
With sexual abuse of children becoming increasingly associated with the tourism trade, Goa formed a model law and proposed the establishment of a Children's Court. The idea of a Children's Court was first mooted in the Government of India Children Act 1960, which is today a forgotten piece of law. The Goa Children Act 2003 is legislation against child sexual abuse, especially those related to tourism. The legislation has specifically made any such cases of abuse non-bailable offences under section 2 (a) of the Criminal Procedure Code, 1973. The fines and jail terms are also severe -- Rs 100,000 with imprisonment between one to three years for sexual assault and incest, and Rs 200,000 with seven to 10 years jail term in case of a grave sexual assault. The setting up of a Children's Court to try all offences against children is a bold step prescribed by this law. A child-friendly court will help to minimize the double trauma that abused children are subject to in courts, which even adults find awesome and terrifying.
The Goa Children's Act is unusual because it does not merely recommend punitive measures against offenders. Instead, in dealing with child sexual abuse it attempts to place responsibility on different sections of society to play a role in protecting all children and preventing the abuse of any child. The hotel owners, the photo studios, cyber cafe operators, the police, the tourism department and all those involved in the travel and tourism trade are expected to keep their eyes open and fulfil their duties, sensitive to the situation of any child they may come across in the performance of their duties. Moreover, it also seeks to establish child-friendly court procedures, which will help to ensure that children are able to give evidence without being in the presence of the perpetrators of the crime.
Already there have been at least three cases booked under the Goa Children's Act. However, the rules of operation under the new law are yet to be formulated. The Goa Children's Act has also come in for severe criticism for its poor drafting, and the lack of legal insight into some of its provisions. The Act was passed in a great hurry to meet the growing problem of child abuse in the state, but ground realities have led it to rough weather. Activists in the legal community believe that the legislation may need drastic amendments to meet its objective.
It is absolutely necessary to alert government, civil society and concerned citizens to play a more active role in promotion, respect and appreciation of the rights of the child, and thereby to prevent the abuse of children, especially in sexual ways. Merely acknowledging this on the International Day for the Rights of the Child - 19th November - is insufficient. What is needed is continuous development of law and civil society responses to a perennial problem. In the legal arena, the problems in addressing child abuse are not so much related to the absence of law, but more due to the lack of a system of awareness, the lack of information, and poverty - which makes this problem that much challenging.
There is much that the legal system must do to improve its response to this crime. The baby steps a few states have taken must mature into adulthood themselves.
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