Chapter II
Sexual Offences Against Children
A. Penetrative Sexual Assault and Punishment Therefor
Proviso to Section 3
In the proviso to section 3, in order to ensure gender neutrality, it is suggested that in line 3, the words ‘his will’ be replaced with ‘the child’s will’.
Definition of Consent:
In the definition of consent, there are a few concerns that need to be addressed. These include:
How can there be unequivocal voluntary agreement in the case of children below the age of sixteen years or children with mental disability or challenge?
How will it be decided what constitutes ‘unequivocal voluntary agreement’.
Unequivocal voluntary agreement for a specific and limited act only can be dangerous as it will put the victim to unnecessary questioning to decide on whether the sexual act that took place was different from the one for which willingness was expressed.
An explanation such that given below may help.
‘Consent’ means the unequivocal voluntary agreement of the child to engage in the sexual activity in question.
(i) There is no unequivocal voluntary agreement where the complainant has, by words, gestures or any form of non-verbal communication, communicated unwillingness to participate in the sexual activities which form the subject matter of the charge.
(ii) Unequivocal voluntary agreement may be specific and limited to the express acts or times consented to. Any sexual acts performed after the withdrawal of voluntary agreement is non-consensual.
(iii) There can be no presumption of unequivocal voluntary agreement based on the woman/person’s class, caste, occupation, sexual identity, or membership in any group.
(iv) No consent is obtained where the complainant is in coercive circumstances.
(v) The use of a condom or insistence on the use of a condom and/or the use of contraceptive medication or other prophylactic medication to prevent sexually transmitted diseases shall not be taken to mean unequivocal voluntary agreement.
(vi) There is no unequivocal voluntary agreement where the complainant is below sixteen years of age, or mentally challenged or disabled.
B. Aggravated Penetrative Sexual Assault and Punishment Therefor
There is need to add sub-clause (u) to section 5. As experience has shown, it is important to include a specific sub-clause covering penetrative sexual assault on a child along with being stripped and/or paraded naked in public. The suggested sub-clauses would read as follows:
(u) whoever commits penetrative sexual assault on a child and makes the child to strip and/or parade naked in public
5(a) – It is important to recognize victimization due to authority and control exercised by the police personnel, in or out of uniform, wherever he/she goes, including beyond the precincts of a police station and beyond his own jurisdiction. It is also important to ensure that children are protected while in the custody of any police personnel, whether or not directly having charge of the child.Therefore it is suggested that the following be added to Section 5 (a):
(i) On a child in his/her custody or in the custody of a police officer subordinate to him/her; or
(ii) When he/she is known or identified as a police official; or.
Illustration: Police official assaults a child in the police station or elsewhere, while on duty or otherwise, in circumstances where he is known to be a police official or where he identifies himself to be a police official.
Illustration: A child is rescued from a brothel and being brought to the police station. The officer in charge asks his subordinate to bring the child in another vehicle. On the way, the subordinate commits penetrative sexual assault on the child.
5(b) – It is important to ensure that children are protected while in the custody of any personnel of the armed or security forces, whether or not directly having charge of the child. Therefore we recommend addition of the following to section 5 (b):
(i) On a child in his custody or in the custody of a personnel of the security forces subordinate to him;
Illustration: A child is escorted across borders by the border security personnel. The officer in charge asks his subordinate to accompany the child, who commits penetrative sexual assault on the child.
5 (d) – To ensure that children are protected in all settings it is important to specifically include certain settings that tend to get overlooked. We therefore recommend the following insertions into section 5 (d):
“whoever being on the management or on the staff of a jail, special home, observation home, protection home or other place of custody or care established by or under any law for the time being in force including a reception centre, or institution working with women and children with mental and/or physical disabilities, commits penetrative sexual assault on any child, being inmate of such jail, special home, place or institution; or”
5(g) – It is appreciated that the bill is moving beyond ‘rape’ to cover various forms of sexual assault, including sexual assault committed by a group of persons as in the case of a gang rape. However , gang penetrative sexual assault needs an explanation to clarify what constitutes a gang. This is necessary since this is the first time such a terminology has been used in the context of sexual assault. The following explanation could be added to section 5(g):
Explanation 1: Where a child is subjected to sexual assault by one or more in a group of persons acting in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this subsection.
5(i) – A reading of section 5(i) gives the impression that grievous hurt or injury is confined to the sexual organs of a child. This needs to be changed to ensure that the section covers grievous hurt or injury to any part of the body of the child.
5(s)- It would be useful to explain the term sectarian violence. The explanation suggested to the Home Ministry in this regard by a groups of women’s rights and child rights NGOs could be used for this purpose. It is as follows:
Explanation I: Sectarian violence is any attack committed against the persons and properties of individuals or a group of persons on the basis of their group identity, which can be inferred directly or from the nature or circumstances of the attack. It includes any one or a combination of the following:
(i) multiple attacks
(ii) attacks in mass numbers,
(iii)attacks over a prolonged period,
(iv) attacks in a number of places simultaneously and / or
(v) attacks with a systematic and consistent pattern.
Explanation II: ‘Group identity’ could be, inter alia, on the basis of religion, gender, caste, class, language, region, political ideology or other identity of the group.
Explanation III: Where a child is subjected to penetrative sexual assault by one or more in a group of persons acting in furtherance of their common intention, each of such persons shall be deemed to have committed aggravated sexual assault within the meaning of this subsection.
Explanation IV: Where a child is subjected to penetrative sexual assault by one or more persons, holding a position of economic and/or social dominance and/or political authority.
C. Sexual Assault and Punishment Therefor
In section 7 (a) and (b), concerns regarding consent remain the same as pressed above in the case of section 5.
D. Aggravated Sexual Assault and Punishment Therefor
There is need to add sub-clause (u) and (v) to section 9. As experience has shown, it is important to include a specific sub-clause covering sexual assault on a child along with acid attack or an attempt for it [proposed sub-clause (u)]. Similarly, a specific sub-clause could be added on sexual assault on a child along with being stripped and/or paraded naked in public [proposed sub-clause (v)]. The suggested sub-clauses would read as follows:
(u) – whoever commits sexual assault on a child and subjects the child to an acid attack or an attempt for it
(v) whoever commits sexual assault on a child and makes the child to strip or parade naked in public
9(a) – It is important to ensure that children are protected while in the custody of any police personnel, whether or not directly having charge of the charge.Therefore it is suggested that the following be added to Section 9 (a):
(i) On a child in his/her custody or in the custody of a police officer subordinate to him/her; or
9(b) – It is important to ensure that children are protected while in the custody of any personnel of the armed or security forces, whether or not directly having charge of the child. Therefore we recommend addition of the following to section 9 (b):
(i) On a child in his custody or in the custody of a personnel of the security forces subordinate to him;
Illustration: A child is escorted across borders by the border security personnel. The officer in charge asks his subordinate to accompany the child, who commits sexual assault on the child.
9(d) – To ensure that children are protected in all settings it is important to specifically include ceratin settings that tend to get overlooked. We recommend a similar change in section 9(d) as suggested for Section 5(d ) to read as follows:
“whoever being on the management or on the staff of a jail, special home, observatrion home, protection home or other place of custody or care established by or under any law for the time being in force including a reception centre, or institution working with women and children with mental and/or physical disabilities, commits sexual assault on any child, being inmate of such jail, special home, place or institution; or”
9(g) – It is appreciated that the bill is recognizing the seriousness of sexual assault committed by a group of persons with common intent. However , gang sexual assault needs an explanation. This is necessary since this is the first time sexual assault is being addressed holistically, going beyond rape, and the term gang has not been used earlier in the context of sexual assault. The following explanation could be added to section 9(g):
Explanation 1: Where a child is subjected to sexual assault by one or more in a group of persons acting in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this subsection.
9(i) – A reading of section 5(i) gives the impression that grievous hurt or injury is confined to the sexual organs of a child. This needs to be changed to ensure that the section covers grievous hurt or injury to any part of the body of the child.
9(s)- It would be useful to explain the term sectarian violence. The explanation suggested to the Home Ministry in this regard by a groups of women’s rights and child rights NGOs could be used for this purpose. It is as follows:
Explanation I: Sectarian violence is any attack committed against the persons and properties of individuals or a group of persons on the basis of their group identity, which can be inferred directly or from the nature or circumstances of the attack. It includes any one or a combination of the following:
(i) multiple attacks
(ii) attacks in mass numbers,
(iii)attacks over a prolonged period,
(iv) attacks in a number of places simultaneously and / or
(v) attacks with a systematic and consistent pattern.
Explanation II: ‘Group identity’ could be, inter alia, on the basis of religion, gender, caste, class, language, region, political ideology or other identity of the group.
Explanation III: Where a child is subjected to sexual assault by one or more in a group of persons acting in furtherance of their common intention, each of such persons shall be deemed to have committed aggravated sexual assault within the meaning of this subsection.
Explanation IV: Where a child is subjected to sexual assault by one or more persons, holding a position of economic and/or social dominance and/or political authority.
E. Sexual Harassment and Punishment Therefor
In section 11(iii), the terms ‘ enticing a child’ and ‘sexual gratification’ should be added to read as follows:
“shows any object to a child in any form or media or entices a child for pornographic purposes or sexual gratification”
NEED FOR A SEPARATE PART COVERING AGGRAVATED SEXUAL HARASSMENT
Sexual Harassment by persons in position of authority or trust have not been covered. Like other parts of the bill, there should be a separate part covering aggravated forms of sexual harassment on the lines of the provisions laid down in section 5(a)-(g), (i), (k), (n), (o), (p), (s), (t) and the changes suggested to these provisions in this document.
In addition, as experience has shown, it is important to include a specific sub-clause covering sexual harassment on a child along with acid attack or an attempt for it. There have been several cases where girls become victims of stalking followed by an acid attack when they do not pay heed to the perpetrator(s). Similarly, being stripped and being made to parade naked in public should find specific mention in the suggested section.
The punishment for aggravated sexual harassment should not be less than five years, but which may extend to seven years, and shall also be liable to fine.
Chapter IV
Abetment of and Attempt to Commit an Offence
Sections 16 and 17 – Instead of laying down a detailed section on abetment, including punishment for abetment, the bill in section 16 and 17 should refer to sections, 107, 108 and 109 of IPC.
Section 18 – Going by the tenor of Section 511 of the IPC, it is suggested that the punishment for attempt to commit any of the sexual offences mentioned in the bill should be one-half of the longest term of imprisonment provided for that offence in this bill.
Chapter V
Procedure for Reporting of Cases
Section 20 – The words ‘sexually exploitative of the child’ is left to various interpretations and can be manipulated. It is imperative to have a clear explanation for such terms.
Section 21 (2) – It is suggested that in-charge of a government department be included in order to ensure that sexual assault on a child by a subordinate gets reported.
Section 22 – This section defeats the purpose of the law. Scope for misuse of any law cannot guide the formulation of a legislation meant to protect the vulnerable.
Chapter VI
Procedures for Recording Statement of the Child
This Chapter needs to be broken down into two sections as follows:
1. Procedures to be followed by the police for recording statement of the child and preliminary investigation
2. Procedures to be followed by the Magistrate for Recording Statement of the Child
The suggestions that follow are based on the judgement in Court on its Own Motion vs. State Crl.M. 1467/04 in CrLW 532/1992.
Suggestions for Procedures to be followed by the police
Various High Court and Supreme Court judgements and the NHRC have over the years laid down provisions that can ensure proper recording of a case by the police as well as preliminary investigations, without causing discomfort to the child victim. Such procedures, as given below, should be included in Chapter V as a separate section.
a) On a complaint of sexual assault/harassment alleged to have been committed or attempted on a child victim, theinformation shall be recorded, as far as possible, by a woman police officer in the case of girls and a male officer in the case of boys not below the rank of Sub-Inspector, preferably a designated male or female child welfare officer from the concerned police station as the case may be.”
Explanation: Under the Juvenile Justice (Care and Protection) of Children Act, officers not below the rank of Sub-Inspector, have to be designated as child welfare officers at the police station level across the country. As far as possible all information about an alleged or attempted sexual offence against a child should be recorded by them.
b) The FIR recorded under section 154 Cr.P.C shall be clearly read out to the complainant.
c) In the event of recording the statement of the child, if the Investigating Officer should so feel the necessity, s/he may take the assistance of a social worker, counselor or psychologist, translator and such other persons that may help record accurate information.
d) The officer recording the statement of the child victim should not be in police uniform.
e) No child victim shall be made to sign on any statements recorded by the police.
f) The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a statement freely without fear.
g) The statement should be recorded promptly without any loss of time.
h) The parents of the child or any other person in whom the child reposes trust and confidence shall be allowed to remain present at the time of recording of the child’s statement under Section 161 Cr.P.C.
i) The Investigating Officer shall ensure that at no point should the child victim come in contact with the accused. (This is important because the victim and the accused cannot be taken for a medical examination or recording of Section 164 statements in the same vehicle).
j) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.
k) The Investigating Officer shall ensure that the child victim is medically examined at the earliest preferably within twenty four hours (in accordance with Section 164-A Cr.P.C) at the nearest government hospital or hospital recognized by the government.
l) The Investigating Officer shall promptly refer for forensic examination clothing and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date.
m) The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.
n) The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.
Suggestion for inclusion in Procedures to be followed by Magistrates
a) The Magistrate, unless there are compelling reasons shall record the statement of the victim under Section 164 Cr.P.C. on the day on which the application is moved by the Investigating Officer. Any adjournment shall be avoided and in case the same is unavoidable, reasons shall be recorded in writing.
b) The Magistrate before proceeding to record the statement shall ensure that the child is made comfortable and she is free from the extraneous pressure.
c) In the event of the child victim being in the hospital, the concerned
Magistrate shall record the statement of the victim in the hospital.
d) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.
e) The child victim shall not be separated from her/his parents/guardians nor taken out from her/his environment on the ground of ascertaining voluntary nature of statement unless the parents/guardians are reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.
f) In all circumstances, before handing over the child to her/his parents/guardians, the Magistrate shall ascertain that such parents/guardians are bona fide and that there is no likelihood of the child being in any danger or harm from them.
g) In an event where the child expresses fears on being handed over to her/his parent/guardians, the Magistrate shall place the child in an appropriate institution and pass on the matter to the concerned Child Welfare Committee or District Magistrate/Collector where such Committees do not exist for further suitable rehabilitation of the child.
h) Wherever possible, the Magistrate shall ensure that the statement of the child victim is also video recorded.
i) No Court shall send a child in an institution meant for adults.
It is also suggested that Sections 25 and 26 be deleted as they would be part of the procedures to be followed by police as suggested above.
It is also suggested that Section 27 be replaced with an entire new chapter on medical examination as given below.
Chapter VII
Medical Examination of the child
In case of a girl child victim the medical examination shall be conducted by a female doctor.
In so far as it may be practical, the help of a counselor or psychologist shall be made available to the child victim before medical examination at the hospital itself.
Special rooms to be set up in all government hospitals for victims to be examined and questioned in privacy
The parents/guardian/person trusted by the child should be allowed to be present during the medical examination.
A sexual assault evidence collection kit or sexual assault forensic evidence (SAFE) kit consisting of a set of items used by medical personnel for gathering and preserving physical evidence following a sexual assault should be available with all the Government Hospitals. A sexual assault evidence collection kit should contain commonly available examination tools such as;
· Detailed instructions for the examiner.
· Forms for documentation.
· Tube for blood sample
· Urine sample container
· Paper bags for clothing collection
· Large sheet of paper for patient to undress over.
· Cotton swabs for biological evidence collection
· Sterile water.
· Glass slides
· Unwaxed dental floss.
· Wooden stick for fingernail scrapings
· Envelopes or boxes for individual evidence samples.
· Labels.
Other items needed for a forensic/medical exam and treatment that may be included in the sexual assault kit are:
· Woods lamp
· Toluidine blue dye.
· Drying rack for wet swabs and/or clothing.
· Patient gown, cover sheet, blanket, pillow.
· Needless/syringes for blood drawing
· Speculums
· Post-It Notes used to collect trace evidence
· Camera (35 mm, digital, or Polaroid), film, batteries.
· Med-scope and/or colcoscope
· Microscope
· Surgilube
· Acetic acid diluted spray
· Medications
· Clean clothing and shower/hygiene items for the victim’s use after the
examination.
A detailed description of “Assault History” be mentioned by the attending doctors on the MLC of the victim; the doctor must ensure that the complete narration of the history of the case detailed by the victim and her/his escort is recorded.
After the examination is complete the victim should be permitted to wash up using toiletries provided by the hospital. The hospital should also have clothing to put on if her/his own clothing is taken as evidence.
All hospitals should co-operate with the police and preserve the samples likely to putrefy in their pathological facility till such time the police are able to complete their paper work for dispatch to forensic lab test including DNA.
The medical examination report should be prepared expeditiously and signed by the doctor conducting the examination and a copy of medical report be provided to the parents/guardian of the child victim.
In the event results of examination are likely to be delayed, the same should be clearly mentioned in the medical report.
Emergency medical treatment wherever necessary should be provided to the child victim.
The child victim shall be afforded prophylactic medical treatment against STDs.
In the event the child victim is brought to a private/nursing home, the child shall be afforded immediate medical attention and the matter be reported to the nearest police station.
The above suggestions on medical examination are based on the judgement in DCW vs, Delhi Police (W.P. (CRL.) 696/2008).
OTHER SUGGESTIONS
· CHAPTER VII WILL BECOME CHAPTER VIII
· CHAPTER VIII WILL BECOME CHAPTER IX
· THERE IS A NEED TO ADD A CHAPTER ON COMPENSATION AND REHABILITATION – CHAPTER X
· CHAPTER X WILL BECOME CHAPTER XI
Suggestions for inclusion in the new Chapter IX on Procedure and Powers of Special Courts and Recording Evidence
Section 33 (2) – Add the following words at the end of the section:
‘in a language which is neither embarrassing nor confusing’.
It shall be endeavor of the Court to create a child friendly atmosphere while conducting its proceedings in respect of a sexually abused child.
Proceedings shall be conducted in camera and appropriate measures taken to ensure that the child victim is not confronted with the accused and the directions in this regard given by the Supreme Court in 2004 (5) SCC 518 'Sakshi vs. Union of India' are enforced.
Wherever possible the Court may resort to the recording of statement through video conferencing.
In no circumstance shall a child below 12 years of age be asked to repeat the statement.
The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the charge sheet.
In case of the physically and mentally challenged victims, the Court shall necessarily make such support services and tools available for the child victim as may be necessary to ensure a fair trial. This would include availability of experts as well as adequate use of equipments like braille, art, sign language.
The Special Court shall maintain a panel of psychiatrists, Psychologists and experts in sign language etc. who would assist in recording the statement of witnesses as and when requested by the Sessions Courts.
As far as possible chief examination and cross examination of the victim must be completed on the same day; No adjournment shall be granted except in keeping with the best interests of the child with reasons clearly recorded in writing.
If it is brought to the notice of the Court from a support person/ Advocate/victim, regarding threats received by the victim or her/his family members to compromise the matter, the judge shall immediately direct the ACP/Additional SP to look in to the matter and provide an action taken report before the court within 2 days. The Court must ensure that protection is provided to the victim and her/his family.
The Court shall ascertain the need for protection for the child and her/his family in every case of sexual assault brought before it and pass necessary protection orders, with or without an application being made in this regard.
In cases in which the witness is sent back unexamined and is bound down, the Court shall ensure that at least the traveling expenses for coming to and from for attending the Court are paid.
In cases of sexual assault by a family member or a relative, before deciding on sending the child back to her/his family, the court shall involve the Child Welfare Committee or a Social Welfare Agency to conduct a home study for ascertain the safety and protection of the child as well as for reducing the possibility of the child getting influenced by other members of the family in the course of trial.
In such cases where the accused is a family member, such accused should be kept away from the child even after release on bail.
Suggestions for inclusion under newly proposed Chapter X on Compensation and Rehabilitation
Section 33 (8) – The section does not clarify who is to pay the compensation. It is important that the state creates a compensation fund for victims under this law. Provisions like a health insurance, provident fund etc. can be part of the compensation to be paid by the state. In addition the accused can also be directed to pay compensation. Such a provision should become part of Chapter X as suggested above.
Role of Child Welfare Committee
In cases of sexual assault by a family member and child in need of care and protection, the Child Welfare Committee shall examine the victim to ascertain the nature of support she/he is getting from her/his family and initiate steps for ensuring best interest of the child. In such cases the Child Welfare Committee shall conduct a home study to assess and ensure the safety of the victim.
In cases where the child is placed in the shelter or under supervision orders, the Committee shall monitor the condition of the victim closely.
In cases of sexual assault by a family member or a relative and a child in need of care and protection, while the victim stays in the foster home the family members should be allowed to meet the victim only in the presence of the support person and care be taken by the staff of the home that the meeting be not used to pressurize/influence the victim to change for statement;
Child Welfare Committee shall ensure that rehabilitation facilities are provided to the victim in appropriate cases. In cases of a prolonged stay, the victim should be given educational and vocational training in order to enable the victim to support herself /himself after she/he leaves the foster home. The Social Welfare Department and Child Welfare Committee will develop and implement Foster Care Services within two months.
Before passing any order of restoration of custody of child to the family, the Child Welfare Committee shall conduct an inquiry to assess the suitability of the victim being restored to the family. The Custody of the child will be altered by the Child Welfare Committee only after consultation with the stake holders.
Child Welfare Committee shall ensure that the victim is provided with necessary medical and psychological aid during her/his stay in foster home for the purpose of her/his rehabilitation;
Child Welfare Committee shall maintain a list of all registered Foster Homes providing residential support, special services and rehabilitation facilities to the victim.
Further, in all such cases, supervision orders shall be necessary to ensure safety and well being of the child. The Child Welfare Committees/accredited Social Welfare Agencies/NGOs may be asked to supervise and monitor and file a monthly report before the concerned court.
Suggestion for addition to Chapter XI on Miscellaneous
A list of various accredited support services and experts in the concerned state/district shall be available with the Prosecution Branch, the Commissioner of Police/SP as well as the Registrar of all High Courts.
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