Abstract
Child sexual abuse (CSA) is a worldwide problem with girls most affected even allowing for the possibility that boys are less likely to report it. In India there is strict anti-CSA legislation like the Protection of Children from Sexual Offences (POCSO) Act, but enforcement falls short due to poor socioeconomic conditions, low education levels, and insensitive actions and responses.
Introduction
The World Health Organization (WHO) defines child sexual abuse as “the involvement of a child in sexual activity that he or she does not fully understand and is unable to give informed consent to, or for which the child is not developmentally prepared, or else that violates society's laws or social taboos”.1,2 It is a major concern worldwide.
Practically all child sexual abuse statutes characterise the accused as adults, hence Castro et al. defined CSA as an adult engaging in sexual behaviour with a youngster for the purpose of enjoyment, stimulation or sexual gratification. 3
According to WHO figures from 2002, about 73 million boys and 150 million girls aged under 18 had been victims of sexual violence in some respect.2,4 The prevalence of CSA has been found to be higher in girls in virtually all research, but it has been postulated that boys may be unwilling to complain due to their male psyche and fear of being stigmatized.2–8
Perpetrators are male in roughly 85% of cases, and most often aged between 30 and 40 years.3,5 and usually, these perpetrators are people in positions of trust, such as family members, friends, employers or well-known people; abuse frequently occurs in settings such as homes, schools and recreation centres.3,9
CSA has far-reaching consequences, including damage to long-term physical and mental health, social and occupational outcomes, and a negative impact on the country's social and economic growth, with abused children more likely to become abusers as adults. 4
To address this threat, the United Nations General Assembly passed a convention on the Rights of the Child on 11 December 1992, which established a set of standards to be observed by all State parties in ensuring the best interests of children, and in due course the Indian parliament passed the Protection of Children from Sexual Violence Act, 2012, which was later amended in 2019 to protect children from sexual assault, sexual harassment and pornography, as well as to establish Special Courts for the trials of such offences for matters related to or incidental to such offences.10,11 However, due to a variety of challenges, the implementation of legislation in India, particularly in poor states like Bihar, is unsatisfactory as explained and demonstrated in this case report.
Case history
On 7 October 2021, a 13-year-old girl was brought to AIIMS, Patna, emergency by her parents, complaining of headaches, lower abdomen pain, and a missed period. The gynaecologist in charge of the emergency room performed a pregnancy test, which was positive. Following a physical examination and a first-level ultrasound examination, the gestation period was determined to be 17 ± 3 weeks. The gynaecologist phoned a forensic medicine specialist on duty, and a team of forensic medicine experts came to examine the patient, but the parents refused consent to the forensic examination. However, on the second day, following counselling, the parents agreed to a forensic examination. The police were promptly notified. After investigation by forensic experts and gynecologists, the following facts were discovered.
The girl was from a small village in Bihar, and came from a poor family. She had four younger sisters and one brother. Her parents sent her to her father's sister's home when she was two years old due to poverty, as her father's sister could not conceive after ten years of marriage. Her father’s sister’s husband had regular peno-vaginal sexual intercourse with the girl for the past two years, and the girl was oblivious to the nature and consequences of the act. In telephonic conversations with her mother, she frequently complained of headaches and tummy problems, and her mother advised her bua (father’s sister) for her care. Her mother brought her to AIIMS, Patna, when her condition did not improve after treatment by local quacks.
After verifying the diagnosis and at the request of her parents, a gynaecologist from AIIMS, Patna, began the medical process of termination (by mifepristone and misoprostol regimen).
Meanwhile, police only came after repeated requests, but her parents did not make any statements or file any complaints with the police who failed to file a suo moto first information report (FIR), claiming that they could not do so without a complaint from the parent or child. When the foetus was about to be expelled, the girl locked herself in the bathroom and flushed it down the toilet. However, a collaborative team of gynecologists and forensic experts saved some retained product of conception, but despite repeated requests, police did not take the sample to the Forensic Science Laboratory. In this regard higher authorities of police and administration were also informed but all efforts were rendered futile.
Laws relevant to this case
Section 3 of the Protection of Child from Sexual Offences (POCSO) Act 2012 defines
“A person is said to commit ‘penetrative sexual assault’ if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”
10
The following sections of POCSO Act relevant to this case define what constitutes aggravated penetrative sexual assault:
Section 5(j): whoever commits penetrative sexual assault on a child, which— (ii) in the case of female child, makes the child pregnant as a consequence of sexual assault. Section 5(l): whoever commits penetrative sexual assault on the child more than once or repeatedly. Section 5(n): whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child. Section 5(p): whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else.
10
As per section 375(6) of the Indian Penal Code, a penetrative sexual act with a girl below 18 years of age even after her consent is considered as rape. 12
Section 6 of POCSO (Amendment Act) 2019 sets out the
The same punishment is prescribed in section 376(3) of the Indian Penal Code by the Criminal Law Amendment Act 2018. 13
Section 19 of POCSO Act 2012 requires any person including the child to report the information regarding commission or likely commission of any offence under this Act to the Local Juvenile Police or local police.
Section 19(6) of POCSO Act requires the Special Juvenile Police Unit or local police to report the matter to Child Welfare Committee and the special court or Court of Session, without unnecessary delay but within a period of 24 hours. 10
Section 21 of POCSO Act 2012 prescribes the
Section 27 of POCSO Act (
Rule 3 of POCSO Rules 2020 mandates the registration of the FIR as per the provision of section 154 CrPC, medical examination and immediate sending of collected samples to the forensic laboratory for the purpose of forensic testing, by the Special Juvenile Police Unit (SJPU) or local police, upon getting information regarding the commission or attempted commission or likely commission of an offence. 15
As per rule 4 of the POCSO Rules 2020, on getting information regarding the commission or attempted commission or likely commission of an offence, by a person living in the same or shared household with the child, or the child is living in a child care institution and is without parental support, or the child is found to be without any home and parental support, the SJPU or local police have to produce the child before the Child Welfare Committee (CWC) within 24 hours of receipt of information. 15
Discussion
In terms of case interpretation, the following are the pertinent facts in this case:
Because the girl was 13 years old, she was legally unable to agree to sexual intercourse, therefore the act was deemed rape under section 375 of the Indian Penal Code even with or without consent. The case is classified as aggravated penetrative sexual assault due to the following reasons: (a) The girl became pregnant, which is punishable under section 5(j) of the POCSO Act. (b) Because the sexual offences were repeated, it falls under section 5(l) of the POCSO Act. (c) Because the perpetrator was a relative of the child entrusted with her care and committed the crime in the same shared house in which they were residing, section 5(n) and (p) of the POCSO Act had to be invoked.
As a result, based on the interpretation of many statutes, this case can obviously be classed as aggravated penetrative sexual assault.
However, the offender escaped punishment for the following reasons:
Rather than encouraging the child to complain, the parents went to great lengths to bury the incident. Despite the parents’ refusal to register the case, police were legally required to do so based on information from the doctor, but they did not do this, nor did they bring the child before the CWC or the court, which is a violation of section 19(6) of the POCSO Act, Rule 3(a), and Rule 4 of the POCSO Rules, an act punishable under section 27 of the POCSO Act. Despite the fact that a medical examination was undertaken under section 164A of the CrPC, police did not send the collected samples to the Forensic Science Laboratory, which is a violation of POCSO Rule 3(d).
The basic difference between a civil case and a criminal case is that in civil cases the plaintiff and defendant present their own case whereas in a criminal case the state acts as the prosecuting party. But even without the complaint from the victim or her parents FIR can be registered especially when the doctor as here had already informed the police and the evidence was clear.
Conclusion
This case demonstrates how culture and law enforcement authorities in some areas of India fail to prosecute even the most severe crimes, encouraging perpetrators and exposing children to harm of sexual abuse.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.