Childhood sexual abuse and the law: More problems than solutions?

Abstract

Byline: Chittaranjan. Andrade, T. Sathyanarayana Rao The Protection of Children From Sexual Offences Act, 2012 (No. 32 of 2012) was published in the Gazette of India on June 20, 2012, after receiving the assent of the President of India on the previous day. [sup][1] This Act seeks to protect children (defined as those below the age of 18 years) from the offences of sexual assault, sexual harassment, and pornography; and provides for the establishment of special courts for the trial of such offences. The Act extends to the whole of India, except the state of Jammu and Kashmir. The Act lists sexual offences against children to include sexual harassment, sexual assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault, and use of children for pornography. All offences are defined in detail, including variations in possibilities. The Act also addresses attempts to commit a sexual offence, and the abetment of sexual offences against children. Acts of omission are included, as are acts of commission. The punishment prescribed is imprisonment for a variable term, up to a maximum of life imprisonment, depending on the gravity of the offence; for example, the punishment for penetrative sexual assault is a minimum of 7 years and can extend to life imprisonment. Punishments may include a fine, as well as payment of compensation to the child for trauma suffered and for rehabilitation, as necessary. The Act is comprehensive and necessary and brings India closer to standards established in other countries. However, it contains an extraordinary clause (Chapter VII, Clause 29) which indicates that the accused person is guilty unless proven innocent. This is a matter of jurisprudence and will not be considered further in the present article, except to state that it could complicate situations that may arise as described below. There are some ambiguities in the Act, such as the definition and identification of sexual intent with regard to certain offences, which could result in the harassment of innocent individuals; but it is hard to see how these ambiguities could have been avoided without diluting the content of the Act. The real problem for medical professionals in general and mental health professionals, in particular, lies in the provisions for mandatory reporting to the police of anticipated or actual offences under the Act. The mandatory reporting clause overrides the confidentiality of physician-client interactions, and the Act specifically states that no person shall incur civil or criminal liability for providing information in good faith. According to the provisions of the Act, the failure to report childhood sexual abuse will be punished with a fine, or with imprisonment for up to 6 months, or both. One cannot find fault with the Act for requiring the mandatory reporting of serious sexual offences. However, reporting of minor offences could result in a paradoxical situation where the solution is worse than the crime. Consider the situation where, for example, during assessment or therapy, a mental health professional learns from a child client that a male family member has exposed himself before the child, or has touched or attempted to touch the child inappropriately. Before the Act, most professionals would have handled the situation through family sessions, usually with satisfactory resolution of the affair. Under the new dispensation, however, the mandatory involvement of the police would result in the arrest of the sexual offender, and in a long drawn out criminal case. This, in turn, would trigger complications that could compromise the earning capacity of the family if the offender is an earning member, induce guilt in the victim, provoke resentment in the family against the victim, and split the family apart if sides are taken; all of which are serious matters that can have long-lasting repercussions. …