Aishwarya Sinha, Student, Bhagat Phool Singh Women's University (State Government University), Haryana.
Introduction
The sexual abuse material, legally known as child pornography involves any content that depicts sexually explicit activities involving a child. Visual depictions include any digital or computer-generated images like photographs, videos etc. These images and videos that involve the documentation of an actual crime scene are then circulated for personal consumption & sexual gratification. More recently, live-streaming sexual abuse has come into the picture. In these instances, individuals pay to watch the live abuse of a child via the live video streaming service. Child pornography can also be written, drawn or created by a computer. In this the child in the pornography is virtual, drawn or simulated, i.e. the child is not real.
According to World Health Organisation (WHO), the Child Sex Abuse (CSA) is the involvement of the child in sexual activity that he/she cannot give consent to and does not fully comprehend or for which the child is not developmentally prepared due to their tender age. This violates laws and social taboos of society.[i]
Psychological Harm to Child
There are studies that show how one's brain is affected mentally due to childhood trauma. These experiences can prove to be deeply disturbing for an individual and can result in severe negative implications in one’s personality. Molestation to children can be very harmful because first, they would not be in the position to understand it due to their tender age and secondly when they will understand, it can traumatize them for years or for the rest of their lives.
Indian Scenario
In India, all forms of Child Pornography is strictly prohibited by the Indian laws of IT Act, 2000- Section 67B and under IPC Sec 292, 293[ii]. Indian laws consider real as well as frictional child pornography as illegal. Their possession, sale, production, distribution in all forms are illegal.
While Section 67B of the IT Act targets the object of child pornography by criminalizing it and punishing it with the imprisonment of 5 years & fine which extend to 10 lakhs on first conviction and imprisonment of 7 years and fine of 10 lakhs rupees on second and subsequent conviction.
Section 14 of the POCSO Act explains the subject of child pornography by criminalizing the use of a child for the purpose of pornography. The consent of a child is irrelevant under both the laws as a child is deemed unable to give consent.
International Scenario
United States Code elucidates that child pornography is any visual representation of sexually explicit conduct entailing a minor under Section 2256 of Title 18. The minor is someone under 18 years of age in accordance with the United States Code[iii]. Article 34 of the Convention puts obligations on the states to undertake all appropriate national, bilateral and multinational measures for the protection of children from all forms of sexual exploitation or abuse.
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007) categorizes child pornography within child abuse. The drawback of this convention is that it lacks its global adoption.
Legal Precedent
ChildLine India Foundation v. Allan John Waters[iv]
Supreme Court, in this case, sentenced three foreign citizens to undergo six-year rigorous imprisonment in 2006 for sexually exploiting a minor boy at the shelter house, run by them in Mumbai and neighbouring areas.
Fathima A.S. v. State of Kerala[v]
The petitioner in this case felt that she should teach sex education to her children. In order to do so, she asks her children to paint on her naked body and afterwards uploads it on social media. Kerala High Court Judge P. V. Kunhikrishnan addressed the matter and laid down that, “If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.” Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification. In accordance with Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.
Sandeep Gopal vs State Of Kerala[vi]
In this case, bail was constantly denied to an accused of child pornography stating the gravity of the offences, the relative conduct of the parties, nature of the allegations levelled against the petitioner, the extent of the injury sustained, the propensities of the petitioner, the sentiments of the near relatives of the victim and the other facts and circumstances of the case. It was laid down that if the accused will be released then he will definitely influence and intimidate the prosecution witnesses.
Recommendations/Conclusion
It is very difficult to detect these crimes as many times family members, relatives or neighbours are the perpetrators. In such circumstances, parents have to be very cautious.
The child needs to be taught these in school by teachers and in the home by parents-meaning of bad touch and how it is wrong and how to talk and share it, if anything happens to them to their parents & near dear ones. This could be done through sex- education.
Sometimes when such matter is reported in the school, the school also hush up the matter fearing the loss of reputation which is very insensitive. However, law mandates under the POCSO Act, 2012, if any institute does not report such matter to the police then they will be punished for imprisonment up to 1 year.
The Constitution of India under Article 15 empowers the state to make special provision for children and also Article 39(f) which provides the state to ensure a healthy condition & freedom so that childhood and youth are protected against exploitation which will include protection from child abuse and any kind of harassment. Thus, the State needs to set up a separate Child Support Organisation & counsellors at schools. These organisations have to especially find out & work in helping children who are suffering to come out of this trauma.
The police should perform the investigation in POCSO cases with extra due diligence. While carrying out an investigation, the police by their actions should not show to the society that there is something wrong with the child.
Emphasis on sex education and upbringing of an individual in a society should be primely focused.
State to focus on implementation of laws rather than only its enforcement.
[i]https://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf [ii] Section 292 & 293 of Indian Penal Code 1860. [iii] https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography [iv] (2011) 6 SCC 261.
[v] (2020) SCC OnLine Ker 2827.
[vi] Sandeep Gopal vs State of Kerala, bail appl..no. 1602 of 2011, high court of kerala, judgement dated 10th march 2011