In several part of the world, child protection laws have been undergoing review, as societies approach to terms with the area of the problem of child abuse, and the need to perk up the capability of public responses to abused and deserted children. Children may be particularly vulnerable to sexual exploitation given their dependency on others and their limited ability to protect themselves. Sexual abuse and exploitation can take a range of forms including rape, commercial sexual exploitation and domestic abuse. Sexual exploitation has far-reaching effects for the physical and mental health of a child. It is estimated that one million children (mainly adolescent girls but also a significant number of adolescent boys) enter the multi-billion dollar sex trade each year (Asmita Naik). We must not forget that the children’s are the ultimate goal for development. Our efforts for a progress in the human condition must start as early as possible begging with the child and mother well before the child is born. So that human right which belongs to an individual as a consequence of being a human can be protected in the changing world. Emphasis must be on the need for children to have security( Parkinson Patrick) and protecting the health and education of today’s children is the first and foremost right of these children but it is also the most basic and wisest of all investment in social and economic development of society.( Proff. Karl- Eric Kuntsson’s)
The welfare and development of any community depends largely on the health and well being of its children. The physical and mental health of a nation is determined largely in the manner in which it is shaped in the early stages. A generation which fails to recognize that the baby is its first charge is lost in barbarity and the hall-mark of culture and advancement of civilization in the fulfillment of our obligation to the young generation by opening up all opportunities for every child to unfold its personality and rise to its full stature –physical, moral mental and spiritual (V.R Krishna Iyer). Justice V.R Krisha Iyer adds that “the birth right of every child that cries for justice from the world as whole” (Gupta Shriniwas).
It is shameful and shocking that millions of young girls and boys worldwide are being unnaturally forced to work in prostitution, pornography, trafficking and other forms of sexual exploitation. Recent study shows that abused and exploited children often become both abused and exploited adolescents and adults (Olara Otunnu).
FAMILIES RESPONSIBLE FOR SEXUAL EXPLOITATION
Although we take for granted that families are the first nurturers, educators and protectors of children and their rights in many cases it is founded that the family creates such situation which coerce the innocent child to the world of sexual abuse. Thus, family as the first line of defence against such ailments breaks down in our modern society (Mohanty J). Many evidences show that there is direct commercial sexual exploitation of children and adolescent due to the family situation (Santhal Pargana Antyodaya Ashram v. State of Bihar, (1987) Supp Supreme Court Cases 141). Poverty despair and newly dislocating values promote such incidences of sexual exploitation among the children. It has been rightly pointed out by many eminent scholars through there vital follow a line of investigation efforts that in fact, most often parents who sell their children into the sex trade do so unwittingly. They are told and believe that their children are going into domestic services or some other form of labour or marriage. Many remain ignorant of the fate of their working children. Thus unintentionally or deliberately, parents due to their ignorance or greed for money sell their children to sex trade (Baxi Upendra). Sometimes, however a child is put on the market of commercial sex by parents who have themselves sexually or otherwise abused the child (Henryj Steiner, Philipalston).
There many instance in different parts of world were such type of wretched and miserable acts over the children’s can be practical observed over many armed forces and groups continue to perpetrate rape and other forms of sexual violence against adolescent young girls and women, are victims believed to number in the hundreds of thousands (Prof. Karl- Eric Kuntsson’s). The majority of young victims suffer severe injuries that require surgery and which can lead to venereal diseases, HIV infection, sterility and other serious health problems; many young girls are abandoned by their families and communities and condemned to live in paucity and persist on the same path to survive there livelihood (Ayre. P., and Barrett, D). International law is against all such type of crime which lead to violation of fundamental right of child and international instruments through various convention, treaties, charters provides guidelines to nations to bring to a stop all forms of sexual exploitation and violation of fundamental right of the pity children’s and adolescent. Judiciary in countless cases (Nautiyal Annpurna, Sarita) put up with the bits and pieces of such International Covenants which aim at live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. State must ensure (Articles .2 (2), 5, 8 and 9 of Convention of Right of Child, 1989) that enforcement of right to evaluate that the child is protected against all forms of discrimination or punishment (Article 16 of Convention of Right of Child, 1989) or amounting to sexual exploitation by the family members.
IMPACT AND IMPLICATION
The shocking consequences which can be observe of commercial sexual exploitation on adolescent children has assumed staggering positions. The child loses its childhood, its moral, its dignity, often its future which is against the principle of basic rights of human being (Understood by Convention on the Right of the child, 1989 as primary object Under Preamble of CRC says dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world).
These are without a shred of doubt unquestionable causes, but these are mal-effects of exploitation which are more miserable. The most palpable observation which relates to the health of the child. HIV / AIDS are both a cause and corollary consequence of commercial sexual abuse of children which directly infringing his rights. Over again it can be argued that children are being chosen as sex partners by the miscreant people who consider sex with a child as "safer". Having sex with a child is thought that it’s safer and it protects from a HIV / AIDS because the child is more likely to be "clean". But the fact is otherwise because of their vulnerability and weaknesses. Children in prostitution is directly in curtailing the natural rights of the pity child who often forced to take more clients than adult might accept and are generally too weak to protest or avoid the situation (Roz Prober and Mark Erik Hecht).
Moreover, children are physically more vulnerable to infection because of their socio¬economic weakness. The 'Virgin' adolescent child is sought by many customers as the "Safest". Now-a-days another problem is reconstruction surgery which promotes commercial exploitation of sex with children making multiple operations. Thus, innocent adolescent child is met with death sentence meaning thereby that his/her life may be left without any family or community life, dignity and options (Encyclopedia on Prosecution for Molesting child). Children trapped in the cycle of commercial sex are often physically abused, beaten, burnt, tortured and deprived of food, air, light and movement (Ditmore Melissa Hope). They are also vulnerable to kidney infections, cervical cancer, early and repeated pregnancies and sexually transmitted diseases. Numerous studies have also shown high levels of abuse by children involved in prostitution. Drugs are often used to keep children taken into prostitution submissively. They may also be a self-medicating means to numb the pain of hunger or despair. It calls attention for nations to implement such a legislation which may come up as antidote to fight against such abuse.
CONSEQUENCES OF SEXUAL ABUSE
Adolescent sexual abuse has drastic effects for its victims, who often grow into manic-depressive, suicidal, or otherwise mentally disturbed adults (Bryer, et al).There is also research suggesting that many prostitutes, battered women, child runaways and drug addicts were once sexually victimized by a parent (Rush,). While the literature suggests that, overall, young boys tend to react differently, and are often less traumatized by the experience (Bagley and King), it also appears that various admixtures of depression, counter phobic violence, misogyny, child molestation and rape are common in boys who have been victims of child sexual abuse (Summit).
CASE STUDY OF INDIA ON FAMILIES RESPONSIBLE FOR SEXUAL ABUSE AND MALTREATMENT OF CHILDERENS
The study carried out by Ministry of Women and Child development on “A study on child abuse” (Report by Ministry of Women and Child Development) has provided revealing statistics on the extent and magnitude of various forms of child abuse – an area by and large unexplored. The study has also thrown up data on variations among different age groups, gender variations, state variations and variations within evidence groups. The findings will help to strengthen the understanding of all stakeholders including families, communities, civil society organizations and the state.
Across different forms of abuse and across different evidence groups, the younger children (5-12 years of age) have reported higher levels of abuse than the other two age groups.
Boys, as compared to girls, are equally at risk of abuse. Persons in trust and authority are major abusers. 70% of abused child respondents never reported the matter to anyone because of the families.
Two out of every three children are physically abused. Out of 69% children physically abused in 13 sample states, 54.68% were boys. Over 50% children in all the 13 sample states were being subjected to one or the other form of physical abuse. Out of those children physically abused in family situations, 88.6% were physically abused by parents. 65% of school going children reported facing corporal punishment i.e. two out of three children were victims of corporal punishment. The State of Andhra Pradesh, Assam, Bihar and Delhi have almost consistently reported higher rates of abuse in all forms as compared to other states. Most children did not report the matter to anyone. 50.2% children worked seven days a week.
Approx - 53.22% children reported having faced one or more forms of sexual abuse. Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both boys and girls. 21.90% child respondents reported facing severe forms of sexual abuse and 50.76% other forms of sexual abuse. Out of the child respondents, 5.69% reported being sexually assaulted.
Children in Assam, West Bengal, Andhra Pradesh, Bihar and Delhi reported the highest incidence of secual assault. Children on street, children at work and children in institutional care reported the highest incidence of sexual assault because of the reason of poor economical condition of family. 50% abuses are persons known to the child or in a position of trust and responsibility.
Emotional abuse and Girl child Neglect: Every second child reported facing emotional abuse. Equal percentage of both girls and boys reported facing emotional abuse in 83% of the cases parents were the abusers, 48.4% of girls wished they were boys. Studies across India show child abuse to be prevalent in a rampant form. More than four lakh children in India are reported to be victims of commercial sexual exploitation for the reason by there families. Studies also shows that although incidence of child rape, one of the worst form of sexual abuse, has declined between the periods 1999 and 2007, from 3153 cases to 2532, the unofficial number may have been higher since many cases may have not been reported for reason families themselves are engage in abuse of child (Prayas Institute of Juvenile Justice). (See, Graph 1: Country wise report on cases on Child Abuse and sexual exploitation by the families)
THE WORLDWIDE PROBLEM
As Reported by Francis T. Miko, proficient expert in international relations, (Puan Sri Datin Seri N. Saraswathy Devi) he says sexual exploitations affects virtually every country in the world. The largest numbers of victims come from Asia, with over 225,000 approx victims each year from Southeast Asia and over 150,000 from South Asia. An additional 75,000 approx or more are trafficked from Eastern Europe. Over 100,000 come from Latin America and the Caribbean, and over 50,000 victims are from Africa. Most of the victims are sent to Asia, the Middle East, Western Europe and North America. (Graph 2 Highest rates of sexual exploitations and Child abuse) The increasing spread of the AIDS epidemic and the rise in the risk of being infected with sexually transmitted diseases, has contributed to the popular demand for “virgin” girls and boys who are sourced out from remote villages around the globe over 60% of girls who are provided by there families for the purpose of sex work and adolescent girls in age-group 12-16 years (HIV/AIDS Portal for Asia Pacific;2006).
In India the Penal Code strictly prohibits the buying, selling, letting to hire or otherwise disposal of or to obtain possession of a minor (a person under 18 years of age) with intent or knowing that it is likely that the minor will be used for the purpose of prostitution or any other immoral and unlawful purpose. The provisions apply to both male and female children. It is also an offence to induce a girl under the age of 18 years to go some place or perform any act with intent or knowing that it is likely that the girl will be seduced or forced to sexual intercourse. If the girl is “imported” to India from abroad the age limit is raised to 21 years. Offences of such nature carry a penalty of up to 10 years imprisonment and a fine. A Conspiracy to commit such an offence under the Penal Code is generally also punishable. For women and girls additional protection is provided in the Immoral Traffic Prevention Act. This act was amended in 1986 to provide for more severe penalties for offences involving children and minors. Under this act anyone who detains a woman or girl in a brothel or on any other premise with the intent that the female person shall have sexual intercourse with other persons is liable to punishment. To facilitate prosecution, certain circumstances are presumed to constitute illegal detainment. Thus if someone is found with a child in a brothel or a child that has been sexually assaulted is found in a brothel it is presumed that the child is illegally detained (See, §372 and 373 Of Indian Penal Code,1860 Ranchhoddas Ratanlal & Thakore Dhirajlal Keshavlal.). Offenders are liable to a prison term from 7 years to life. These strict liability provisions allow for a higher possibility of curbing the offence, which would otherwise not be possible without the reversal of the burden of proof as has often happened in drug-related offences (Ramanna,(1889) 12 Mad 273; Karuna Baistodi, (1894) 22 Cal 164, Jateendra Mohan Das, (1937) 2 Cal 187; Maharashtra v Chandraprakash Kewalchand Jain,1990 Criminal Law Journal ,589 (Supreme Court) ; Santosh Kumar v State of MP, All India Reporter 2006 Supreme Court 3098). (Gour, Dr.Hari Singh)
Supreme Court of India in (Vishal Jeet v. Union of India All India Reporter 1990 Supreme Court 1412) Divisional bench of Hon’ble Supreme Court directed all State Governments and Government of Union Territories to take appropriate and speedy action under existing laws in eradicating child prostitution. In the light of Supreme court judgment in the cases of Meneka Gandhi case (1978) 1 SCC248 ); (Sunil Batra (1978) 4 SCC 494), Justice Bhagwati, in (Lakshmi Kant Pandey v. Union of India MANU/SC/0054/1984) while emphasizing the importance of children has expressed his view thus: It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a 'supremely important national asset' and the future well-being of the nation depends on how its children grow and develop.
As current studies carried out by eminent researchers that there are around 900,000 sex workers in India. Approximately, 30 % are believed to be children involve in prostitution which has also increasing at 8 to 10% per annum.(Dr.Deepti Shrivastava) Causational factors are multiple and complex. The root of such an abuse and exploitation toward children by there families is due to poverty. In most of developing countries today globilzation has severed the traditional socioeconomic relations and the growth has render women and children vulnerable.
It is estimated in study report that 35% of adolescent children are been abducted under the pretext of false marriage or good jobs. Physical abuse, lack of food, illiteracy, unemployment and lack access to formal education. In rural areas poor families do not support prosecution nor acknowledge the level of harm to victim child. Poor households in debt or struggling with insecure livelihood may be compelled to hand over a child in to debt bondage or to sell the child to repay the debts which is clearly a human right abuse as consequence.
In organizing a social system, family has an important role to play. It is the place where the socialization of children gets started. It is essential that right social values are inculcated from child hood. In addition, it is recommended that particular involvement be explored and planned for children in the trafficking prone areas and in territorial towns to raise their awareness among families. This article contends that state ought to shelter and ensure the right of child from the all type of sexual exploitations in changing world. There are police and law enforcement agencies around the world to combat commercial sexual exploitation of children. At the national level many countries enacted laws making children's abuse a crime. Particularly 188 countries on 1st may, 1996 have signed or ratified the UN Convention on the Rights of the Child,1989(Present status as per Date 06/Dec/2006) and have enacted legislations for safeguarding their rights and regulating the underage sex, prostitution, pornography, kidnapping, enslavement abuse and other criminal acts. However In recent years there has been growing awareness of commercial sexual exploitation of children. This article has argued, however, that eessential to bear in the mind that sexual exploitation of children can be confiscate by the co-operation between the legal systems, the government bodies and the non-government bodies around the globe. Step forward that every one of us has a role to play not only the state in ensuring that every child enjoys a childhood and keeping mind the final aim in the enforcement of the child's right is to emphasize, the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Nearly everyone societies are overwhelmed by the problem of child abuse, making it today a “global phenomenon” yet it remains somewhat “unknown”. There is lack of awareness amongst citizens – possibly due to the chauvinism or bigotry of state authorities to disclose ills that affect national dignity and recklessness. Lack of Co-operation amongst countries need to be fostered to counter this phenomenon, this uniformity can be achieved through ratification of international instruments and national implementation of these international humanitarian instruments.
- Archbishop Desmond,( 1995) Tutu At The Meeting Of The Eminent Persons Group On “The Impact Of A. Conflict On Children”, Tarrytown, New York.
- Ayre. P., and Barrett, D., (2000) Young People And Prostitution: An End To The Beginning. In Children & Society, Journal. Volume 14, 48-59.
- Baxi Upendra, (1998), ‘The Ultimate Violation Of Self: Reflections On Judicial Discourse On Attempted Rape’, (1998) 6 SCC 1
- Besson Samantha, (2007), Enforcing The Child's Right To Know Her Origins: Contrasting Approaches Under The Convention On The Rights Of The Child And The European Convention On Human Rights, 21 Int'l J.L. Pol'y & Fam. 137
- Bresee P, Stearns GB, Bess BH, Packer LS, (1986)“Allegations of child sexual abuse in child custody disputes: a therapeutic assessment model” Am j Orthopsychiatry. Oct;56(4):560-9
- Bryer, Et Al, (1987)‘Childhood Sexual And Physical Abuse As Factors In Adult Psychiatric Illness’, 144 Am J Psychiatry 1426
- Byrnes A., (1995) “The Committee Against Torture” In Alston United Nation Human Rights”, P. 509
- Coates Tony, (2002.) International Justice,As gate Publishing Company, Brulington, US , 2nd Ed,
- Congressional Research Service Report 98-649 C Trafficking in Women and Children (1999-08)
- D. Fischer, (1982), ‘Reporting Under The Convention On Civil And Political Rights; The First Five Years Of The Human Rights Committee’, 76 AJIL
- Ditmore Melissa Hope, Encyclopedia Of Prostitution And Sex Work, Greenwood Press,(2007)
- Dormenval A, (1990)‘Universal Committee Against Torture: Practice And Perspectives,’ 8nqhr, 26
- Dr. Deepti Shrivastava “Child Traffic- A human right abuse” India police Journal, (2007),Vol .LIV No.1, Jan-March 65
- E. Schwelb, (1977) “The International Measures Of Implementing International Covenant On Civil And Political Rights And Of The Protocols”, 12 Texas International Law Review,.141.
- Encyclopedia On Prosecution For Molesting Child, 42 Am. Jur. 2d, Infants § 17.5
- F Jhabvala, (1984), “The Practice Of The Covenants Human Right Committee, 1976-82: Review Of State Party Reports, 6 HRQ, P.81,
- Gandhi P.R, (1986), The Human Rights Committee And The Rights Of Individual Communication, ’57 BYIL, 201
- Gayel M. (1984) ‘International Enforcement Of Women’s Rights’, 6 HRRQ,463;
- Gour, Dr.Hari Singh, , (2006) Penal Law of India, Universal Law Pub. India, Pvt. Ltd, 6th Ed
- Harris D.J Boyel O’ And Warbrick, (1995) Law Of The European Convention Of Human Rights, London
- Hassain Kama, On ‘Human Rights And Development’, Reflection On Emerging International Law’, Essays In Memories Of Late Subarta Roy Choudhary, National Law School Of India University, P.65
- Henryj Steiner& Philipalston, (2000) OxfordUniversity Press International Human Rights In Context Law Politics Morals,2nd Edition,
- Henryj Steiner, Philipalston, “International Human Rights In Context Law Politics” Morals, 2nd EditionOxfordUniversity Press. P.771
- Jackbson R, (1989) ‘The Committee On The Elimination Of Discrimination Against Women’, 14 Yale Journal Of International Law
- Jacobs And White, (2002), The European Convention On Human Rights,(Eds. Overy C. And White R.C.A), 3rd Ed , Oxford
- Julia A. Mcintosh, Ronald J. Prinz, (1986).Allegations Of Child Sexual Abuse In Child Custody Disputes: A Therapeutic Assessment Model, 56 Am J Orthopsychiatry 560
- Khanna Santosh, (2001). Human Rights To Day, Vidhi Bharti Publication, 168
- Lansdow G,(2000) ‘The Reporting Procedures Under The Convention On The Rights Of Child’, In Alston And Crawford, Future, CambridgeUniversity Press, Cambridge
- Linda A. Francis, Annotation, Mental Health Of Contesting Parent As Factor In Award Of Child Custody, 53 A.L.R. 5th 375
- Lowenstein, S. R., (1991) “Child Sexual Abuse In Custody And Visitation Litigation: Representation For The Benefit Of Victims”, 60 UMKC LR 227
- M. Nowak, ,(1984), ‘The Effectiveness Of The International Covenant On Civil And Political Rights- Stocks- Taking After The First Eleven Sessions Of The Un Human Rights Committee; 5 HRLJ 199.
- Macdonald St. J, (1987), ‘International Prohibition Against Torture And Others Forms Of Similar Treatment Or Punishment’ In International Law At A Time Of Preplexity”
- Mcgoldrick D, (1991), ‘The Un Convention On The Rights Of The Child’, International Journal Of Law And Family, P.132
- Merrills,( 1993) The Development Of International Law By The European Court Of Human Rights, 2nd Ed, Manchester.
- Mohanty Jagannath,(2000),Human Rights Education, Deep And Deep Publications Pvt.Ltd.,
- Nautiyal Annpurna, (2002) Sarita Book House, Delhi, Fifty Years Of Human Rights,1st Ed.
- Parkinson Patrick (2003), ‘Child Protection, Permanency Planning And Children's Right To Family Life’, International Journal Of Law, Policy And The Family, August, 17 Int'l J.L. Pol'y & Fam. 147.
- Prayas Institute of Juvenile Justice, National Child Abuse Study http://www.prayasonline.org/ActivitiesAdvocacyChildAbuseStudy.html (Accessed on 04 Jan 2008)
- Present status as per Date 06/Dec/2006 Data collected from http://www.ohchr.org/english/countries/ratification/11.htm; or see United Nations, Treaty Series , vol. 1577, p. 3 ; depositary notifications C.N.147.1993.TREATIES-5 of 15 May 1993 [amendments to article 43 (2)] 1 ; and C.N.322.1995.TREATIES-7 of 7 November 1995 [amendment to article 43 (2)].
- Proffesor Karl- Eric Kuntsson’s, (1990),Key Note Address To National Seminar Of ‘The Child Socio-Legal Perspectives’, Held On Sep 15-16, P.4
- Ranchhoddas Ratanlal & Thakore Dhirajlal Keshavlal, THE INDIA PENAL CODE,28th Ed. Wadhwa And Company
- Report by Ministry Of Women And Child Development Releases A Study On Child Abuse available on http://pib.nic.in/release/release.asp?relid=26737 (accessed on 04/Jan/2008)
- Roz Prober And Mark Erik Hecht, (1999), Child Advocates Unite Against A Global Rise In Child Exploitation, The Human Rights Data Bank, December Vol.6, No.4
- Santos Pais M, (1992),‘The Convention On The Rights Of The Child And The Work Of The Committee’ 26 Israel Law Review, P.16
- Shaw Malcolm. (2003) N, International Law, CambridgeUniversity Press, 5 Th Ed.
- Starke J G, (1989) Introduction To International Law, 10th Ed, Aditya Books, Butterworth & Co, See Chapter On ‘Human Rights And Fundamental Freedoms,’ P. 369.
- Suffridge, (1991). Survivors Of Child Maltreatment: Diagnostic Formulation And Therapeutic Process, 28 Psychotherapy 67 Spring.
- The HIV/AIDS Portal for Asia Pacific (2006). [You and AIDS women’s and Girl Children Specially Vulnerable.]
- Wadisten M, (1988) “Implementation Un Convention On The Elimination Of All Forms Of Discrimination Against Women” , 6 NQHR
- Wessibrodt D And Farely R, (1994),“The UNESCO Human Rights Procedure: An Evaluation”,16 HRQ,391
Information about the author
Mr. Swapneshwar Goutam is a fourth year student (B.A., LL.B [Hons] at Hidayatullah National Law University Civil Lines and has published in numerous academic law journals.