You think POCSO can curb child sexual abuse? Think again

While we continue to debate the merits of death penalty for child rapists that was approved by the Union Cabinet on April 21, 2018 and got the President’s nod a day after, there is a need to focus on the increasing number of sexual abuse cases against minors.

Karnataka reported an increase in POCSO cases, according to National Crime Records Bureau data, from 620 in 2014 to 1,480 in 2015 and 1,827 in 2016. The state recorded the fourth highest number of POCSO cases in the country.

Sex crimes in India largely go unreported. Women and children have often remained silent on various forms of physical and sexual abuse for fear of social stigma. While marital rape is penalised in many countries, in India it is still not a criminal offence.

Crimes against children are generally swept under the carpet; in some cases, the minors aren’t even in a position to comprehend the extent of abuse till much later in life. However, with an increased focus on sex education in schools, parents, teachers and society have woken up to the realisation that not only do these crimes need to be reported, we also need to educate our minors, so that they have the agency to speak up when they face abuse.

Children face various forms of abuse and exploitation at the hands of sexual offenders. Before we even begin to talk about prevention, rehabilitation and reintegration, there’s an entire spectrum of exploitation that we first need to understand.

The two most familiar terms are ‘child sexual abuse’ and ‘child trafficking’, but a term we haven’t heard often is ‘Commercial Sexual Exploitation of Children’ (CSEC). Some of these concepts are overlapping, but are different in scope and in the way they are treated by law.

CSEC is defined as, ‘A violation of the fundamental rights of boys and girls involving sexual abuse on the part of an adult and the remuneration in funds or in kind both for the child, as well as for a third party.’

One of the main challenges in prevention of CSEC is the fact that a lot of the activity has moved to the online space and regulation in that sphere is an almost impossible task. The online space has obliterated parental control. Child pornography, online streaming of sex with children in return for payment, selling of child rape videos or videos of adults sexually exploiting children are emerging forms commercial sexual exploitation that are still largely undisclosed and unreported.

The online space remains largely outside the purview of the CSEC discourse because there is no infrastructure in place for an investigation in this sphere.

Roop Sen, Partner, ChangeMantras, explains why investigation of cybercrimes, involving CSEC, is challenging: (a) such crimes are often trans-national, involving multiple countries, and India (and most other countries) do not have bilateral mechanisms wherein they can collaborate on investigation, (b) offenders are skilled at covering tracks and evidence, and law enforcement agencies are yet to catch up in terms of expertise to go after offenders to be able to track them, gather evidence to prosecute them, and (c) the ‘dark web’ and technology offer almost foolproof privacy in soliciting, transacting and perpetration of crimes.

Sen elaborated with a couple of examples: till a decade ago, if someone wanted to prostitute a child, they would require a brothel to keep the victim, receive customers who would solicit child prostitution, and have a physical contact point between the customer, pimp, brothel manager and the victim. Today, there is no need for that brothel and onsite transaction. The pimp and madam can hold the victim in a residential flat, contact is established between customers and pimps online, transactions may also be conducted online, sexual exploitation is carried out in a private residence (could be the customer’s own place, or rented or arranged by the pimps) or hotels and lodges.

Such incidents have been confirmed in a recent study by the International Justice Mission in Mumbai and Kolkata, where children are found less in red-light areas and brothels, and more in private residences. In such cases, customers enjoy complete anonymity and transactions between the customers and pimps and other associates are hard to prove.

A second scenario is when children are sexually exploited online: in one of the cases reported by the police in Siliguri, West Bengal, a man running a cyber cafe would recruit young girls to have online sex chats with men in exchange of money. Interestingly, the police said that a case was lodged against the cafe owner when customers (who had been solicited online and had paid money with promise of sex) complained they had been cheated by these girls. In this case, the customers had been made complainants and witnesses to the case against the pimp/cafe owner, and not prosecuted.

Do other nations have similar challenges when investigating such cases? Roop explains that most countries are struggling to keep up with technology that is being used for commercial sexual exploitation of children. The United States is perhaps the most advanced, wherein the government has formed specialised probe agencies to monitor and investigate.

At a conference organised by ICMEC (International Centre for Missing and Exploited Children) and Tulir, officers from the US presented data on hotspots in India where child porn was produced, uploaded and consumed, information and data that none of the Indian agencies have.

The consumers of child porn (which is one of the forms of CSEC since it is sexual exploitation of children for profits) are, needless to say, not restricted to India.

The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a law to protect children from offences of sexual assault, sexual harassment and pornography, and to provide for the establishment of infrastructure of prosecution and trial of such offences. The non-mention of commercial sexual exploitation of children in POCSO fuses sexual abuse (non-commercial) and commercial sexual exploitation of children.

Regardless of the ambiguity in legal provisions in different statutes, customers of child prostitution are definitely offenders as per the law.

While POCSO is a law on child sexual abuse and not explicitly one covering CSEC, the offences contained within CSEC will fall within the scope of POCSO.

In light of the fact that the age of consent is 18 in India, engaging in any sexual activity with any child is legally construed as abuse under POCSO. Therefore, persons who engage in CSEC by buying sex with children can be prosecuted under POCSO.

In theory, India has a comprehensive law against those who commercially and sexually exploit children. However, practically speaking, the legal relationship between prostitution, trafficking and CSEC remains unresolved, allowing children-abusers to enjoy impunity.

There is a lack of protocol for investigation, evidence-collection, sharing information and intelligence and this ultimately renders the law ineffective for arrest and conviction.

Efforts to curb demand need convergence between various stakeholders, because of the complexity of CSEC. Without support and encouragement from the government, law enforcement will not be able to effectively implement existing laws against CSEC.

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