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Criteria: The American Ministry of Justice employs five criteria to decide whether an image can be considered to be pornographic: “They must focus on the genital area, show unnatural poses, depict children as sex objects, imply that the children are willing to engage in sex, and have a suggestive setting.”
In societies with a somewhat developed civilization child pornography is usually a moral stumbling block of the first degree. When children are misused for the enjoyment of adults almost everybody immediately has the feeling that a moral limit is passed. The distribution of child pornographic images via the internet has therefore been the subject of heated discussions for years. Although the —for that matter very small— demand for child pornography remains, there is hardly anyone who dares defend the production and distribution of such visual material in public. This isn’t strange in a country where child pornography is a social taboo and criminally forbidden.
In this article an overview is presented of the ways in which child-pornographic images are distributed via the internet. In Regulation and Self-Regulation of the Internet (in Dutch), and more in particular in Regulation of CyberPorno (in Dutch) an analysis is presented on how these practices can be suppressed.
Childporno is not the same as pictures of nude children. Childpornographic material is the evidence of a crime, i.e. sexual abuse of children. The legal definition of childporno in the Netherlands is “a picture of someone who apparently hasn’t reached the age of sixteen yet, alone or with someone else in a pose intended to arouse sexual stimulation”. A picture of a pose of a nude child as such doesn’t fall under the penalty clause, even if there are persons who may be sexually stimulated due to their inclination. Therefore, the crux of the legal definition of childporno isn’t that the picture is primarily made and distributed in order to arouse others sexually, but the protection of the minor against sexual exploitation [the Dutch minister of justice, W. Sorgdrager, Memorandum to article 240b, 20.2.95]. The Dutch legislation concerning this point is extensively described in Regulation of Cyberporno (in Dutch).
Children who are depicted in childpornographic pictures and films are involved in sexual acts and are manipulated by the photographer or filmmaker in such a way that they satisfy a whole range of fantasies. The portrayed children seldom show signs of aversion or disgust; they usually look cheerful or neutral. This reinforces the rationalization and justification processes for the sexual interest in children by adults for a large audience. The children are depicted as ‘willing sexual beings’. Yet, every childpornographic representation starts with the sexual abuse of a child. Behind every picture hides an abused child.
No reliable statistics are available of the number of children that are victimized by childporno, nor of the number of productions or consumers [Frenken 1997]. Childpornography is produced behind closed doors. All participants compel each other to secrecy because they can all be blackmailed. For victims of childporno or childprostitution it is usually very difficult to come forward with their story. Not seldom are they threatened by the perpetrators who operate in the scene of organized crime. According to Unicef several millions of children and youngsters are sexually exploited worldwide. According to an estimate of the UN Human Rights Commission in 1998 10 million children are used as sex objects by adults worldwide. Increasingly younger children are involved — starting with babies of a few months old.
Ok 1997 was a decade ago, things have changed since then.
Or have they really ??
To Think The Unthinkable
The judiciary, like the rest of society, dangerously downplays the reality of child sexual abuse
Wives who make allegations of sexual abuse of their children by their husbands suffer from “some peculiar psychiatric condition”. The alleged sexual abuse of an “infant child (who would have just passed her suckling stage then)” is a “seemingly incredulous” accusation to make. An allegation of child sexual abuse by a mother will be “concocted to wreak her vengeance” on her husband.
The medical examinations carried out at the behest of a mother which reveal “a wide vaginal opening—wider than would be expected of their age group” will at most support the probability of “what a mother might do with the little female child for creating evidence of sex abuse”.
“A father is a father…and even if he is a bad father he still has the right to his children…”
THESE are no old wives’ tales. These are the observations, made by the Supreme Court, on wives, tormented children and allegedly abusive husbands. Uttered as observations in the Satish Mehra versus Delhi administration case filed by the former—challenging his wife’s allegation that he had repeatedly sexually abused their eight-year-old daughter from age three onwards—these words speak of a typical judicial attitude towards cases of child sexual abuse.
“Instead of addressing the legal and social problems related to child sexual abuse, such observations coming from the country’s apex court reaffirm the myths about the heinous crime,” says Maya Ganesh of Sakshi, an NGO working with women and children in the area of violence. Verdicts such as these, the agitated activist points out, only add to the outdated beliefs that a mother who accuses her husband of this crime either doesn’t sexually satisfy her husband, wants to take revenge on him, is insane, or doesn’t take care of her children. “It’s quite a task anyway to convince people that bus conductors, drivers and domestic help are not the only ones who abuse children. That this is a crime that has children suffering in many apparently ‘normal’ homes. It would certainly help if the judges didn’t feel the same way too,” she says.
Unfortunately, the hope seems misplaced. Even as the National Commission for Women conducts a National Consultation on Sexual Exploitation of Children in Goa this week with ministers and justices as speakers, a survey conducted by Sakshi just last year had 50 per cent of the 109 judges questioned from all over the country saying that child sexual abuse is not a common crime. They felt that the offence exists only amongst “uneducated, depressed and over-sexed people and/or people with a prostrate gland problem”. A 48 per cent of the judges felt the perpetrators of such crime were not from within the family, but strangers and domestic help. Comforting beliefs, perhaps, but ones that are easily shattered even with the very meagre documentation done on the subject in the country. Bangalore-based NGO Samvada’s study—titled Preliminary Report of a Workshop Series and Survey on Childhood Sexual Abuse of Girls—carried out with 348 girls from schools and colleges in the city revealed that 83 per cent of the respondents had experienced some form of sexual abuse.
Two-thirds of the victims said their abusers were known to them, the majority of them being male members from the family.
THE case then is hardly overstated when the judiciary and the executive are asked to recognise that child sexual abuse is a grave reality that needs urgent attention. “The entire system—the judiciary included—has to do its bit towards finding a solution. There should be a ruling making sex education mandatory in our schools. A child should be taught to differentiate a good touch from a bad one,” observes Sana Das of Samvada.
Till that happens, however, it is left to the judiciary to interpret touches and decide on the nature of offences. Which interpretations, often, are appalling. In the case of the government under-secretary, who was accused of repeated sexual abuse of his daughter, the abuse involved vaginal and anal penetration with a finger and forcing the child to have oral sex. Neither the district court, nor the high court or the Supreme Court was willing to acknowledge any of the penetrations as rape. The district court ruled in the CBI versus K.C. Jhaku case: “The word ‘penetration’ does not connote penetration of any foreign object. There must be penetration of the male organ, and that too in the vagina, otherwise, the act would constitute a carnal intercourse.”
“The problem with the existing law on child sexual abuse is that there is no existing law on the subject,” says lawyer Niti Dikshit. The absence of a separate law on child abuse means that sexual assault on minors is tried under Section 377 of the Indian Penal Code which makes the crime punishable for being “voluntary intercourse against the order of nature”. Moreover, the minimum sentence for rape is 10 years while the maximum sentence under Section 377 is 10 years.
“What of the minor boy who is being forced into oral sex or the girl child who is being fondled and used as an object to masturbate…we always need a sympathetic judge to interpret the law favourably. We could do with a solid law,” argues the lawyer.
THIS vagueness regarding the crime spills into police stations that are sought as the first refuge by harassed victims of the crime. The lack of specialised cells for a crime that needs to be treated sensitively has most such victims coming into the Crime Against Women Cell (CAWC). “We hardly have any investigative powers to deal with this crime. Nor do we have any counsellors to handle the complainants,” admits deputy commissioner S.S. Grewal of Delhi’s CAWC.
“We often end up asking harsh questions but then we are not trained in the field.”
The absence of trained professionals in the police stations and the courts while these cases are on, insists child psychiatrist Vinay Kshetrapal, can be detrimental to the mental health of the victim who is already traumatised. “Disbelieving questions and harsh attitudes can ruin a child’s confidence when he or she has just about mustered enough courage to speak out the unspeakable,” says Kshetrapal. He insists that all such cases abroad are conducted with a counsellor monitoring the mental health of the minor victim.
“Sympathy is an imperative in this case.”
So are laws.
As also a healthy judicial attitude.
Goa is a tourist hotspot that is frequented by young and old from all over the world, some of whom visit for the calming “holiday” atmosphere, some for the wild nightlife and woodstock reminincing, and some for more sinister activities..
Post-Father Freddy Peat and other similar cases where locals and tourists were found to be indulging in the sexual abuse of children/child pornography, the Goa Child Protection Act of 2003 made a strong statement in favor of punishing those who traumatized and exploited Goa’s youth.
It can be downloaded and perused
Child rights activists all over the country were heartened by the news of the conviction of Wilhelm and Loshiar Marty by the Bombay Sessions Court on 29 March 2003, given the difficulties involved in prosecuting sex offenders in general and foreign paedophiles in particular. After the conviction of the notorious Freddy Peats in Goa on March 21 1996 not a single conviction of a foreign paedophile has taken place. This is ironic, considering that there is a great deal awareness about tourism related paedophilia in Goa today and unlike in the past, today the State too acknowledges the existence of this problem. The number of convictions or the lack of it actually defines the extent of the problem.
Today when NGOs lodge complaints with police officers they do not cast aspersions on the credibility of the complainants, as was often the case earlier. There are police officers in Goa who have investigated cases very effectively. The sad reality is that the will to effectively deal with this problem on the part of the State as a whole is still lacking. The police, the prosecutors, the courts, the Home Department and other state agencies involved have to be committed to stopping the menace of paedophilia.
The details of the cases given below illustrate the point:
Arrested on 3 April 1991, he was granted bail within 45 days, after which he freely roamed the state of Goa till he was convicted five years later. The Sessions Court expedited the case only after Mumbai-based child rights activist, Sheela Barse, filed a writ petition in the High Court in 1995 praying that the Sessions Court proceed with the trial on a daily basis. This resulted in Freddy Peats being sentenced to life imprisonment on 21 March 1996.
Kenneth John Clark
An 18-year-old boy from Andhra Pradesh filed a First Information Report against Kenneth John Clark, a British national on 9 October 1996, following which he was arrested by the Colva Police Station and charged under sections 372 and 377 of the Indian Penal Code, 1860 (IPC). The boy alleged that Clark subjected him to anal sex on several occasions. Apparently Clark also allegedly forced this boy to have sex with a 14-year-old boy in his presence. Clark was let off on grounds of insufficient evidence.
Ernie Jean François
In December 1996, Umed, a child rights organisation, received a complaint against Ernie Jean François, a Swiss national aged 52 years, who had brought a nine-year-old girl from Pune, with whom he was residing in Calangute. An informant told Umed that he had been visiting Goa each year since the last three years and that he always brought different children with him. The girl accompanying him at the time had reportedly been with him for almost a year, visiting various parts of India and not going to school. Umed brought this case to the notice of the local police. However, François was allowed to leave the country on 12 March 1997, as the police were apparently unable to find evidence of sexual abuse.
Peculiar features about this case underly the problem faced generally. The police took the girl away from the custody of the suspect only 10 days after Umed filed its complaint. No representative from Umed was allowed to be present for any hearings of the case. The conclusion of the case was communicated to Umed through an official letter from the Home Department of the state government. The letter states that the first medical report ruled out “the possibility of any forceful sexual intercourse” (emphasis added). It goes on to say “in a subsequent medical report the doctor has stated that on interrogation the child admits to having sexual intercourse with more than one person.” But apparently, she had not had sexual intercourse with Jean Ernie François. No medical reports were attached to this letter and Umed’s written request for the documents met with no response.
Although Umed representatives were not permitted to interview the child, it seems that the chairperson of the National Commission for Women, Mohini Giri met her. On 20 March 1997, The Hindustan Times reported that Ms Giri was ‘rattled’ by her encounter with this girl. The girl reportedly told her that ‘the Swiss uncle would bathe her every morning and at night he showed her blue films and patted her on her face.’ He would put her to sleep ‘kissing her everywhere’. These sensational revelations did not result in any action on the part of the state, nor was it followed up by any action on the part of the National Commission for Women.
Meanwhile François continues to visit Goa.
Yvonne Rene Wallez
In March 1998, a case was registered by the Calangute police station against a 67-year-old man of Belgian origin, Yvonne Rene Wallez, for sexually abusing a 15-year-old handicapped boy under Sections 373, 377 and 294 of the IPC. However, on 13 May 1998, Wallez was found dead in his room. Jagrut Goenkaranchi Fauz (an organisation concerned with the social impact of tourism) had demanded an inquiry into the death of this man to ascertain whether this man had committed suicide to avoid judicial trial or whether any paedophile associates were involved in his death. However no follow-up was done by the police in this case.
In August 1998, some residents of Calangute complained to the police about Helmut Brinkmann, a German aged 53, that he was a paedophile. This was a unique case because the child, a boy around 14-years-old testified against him and forensic examination revealed the presence of sperm in the anus of the child and it was proved that the sperm was of the suspect, Helmut Brinkmann.
Brinkmann was convicted for unnatural sexual offences by the Assistant Sessions Judge, Nutan Sardessai, and awarded rigorous imprisonment for six years. Brinkmann was later acquitted on appeal by the Additional Sessions Judge, D R Kenkre, on seemingly technical grounds.
It is interesting to look at the two judgements, which establishes how the same facts can be given such a diverse interpretation, based on the mind-set of the individual in office. In trial court’s judgement three issues were formulated: Firstly, was the boy kidnapped? – In which case the accused would be liable under Section 363 IPC. Secondly, whether there is proof to convict the accused under Section 373 of the IPC; which pertains to buying or hiring a minor with the intent of or knowing it to be likely that such a person shall be used for either prostitution or illicit intercourse or any purpose which is unlawful or immoral. Thirdly, whether the accused committed unnatural sexual offences punishable under Section 377 of the IPC. The court ruled that there was no evidence of kidnapping, but there was evidence to convict the accused under Sections 373 and 377.
In the appeal court’s judgement the two points formulated were: Firstly, whether the victim boy is an accomplice in commission of the crime and secondly, whether there is evidence to convict the accused under Sections 373 and 377. But while he has ruled that the victim is an accomplice in commission of the crime, he ruled that ‘it is not proved that the guilty was indulging in unnatural offence’.
The judgement contends that to prove that the accused was guilty under Section 373 it was necessary for the prosecution to prove that the accused had carnal intercourse with the victim… and that it was against the order of nature. According to him ‘the prosecution was required to prove Section 377 to prove Section 373’. A basic contention of the judge appears to be that the prosecution failed to establish that the accused had carnal intercourse with the victim. The judge ruled that the testimony of the child has to be corroborated in ‘material particulars’ for it to implicate the accused.
First of all, for a child to talk about being sexually exploited is rare, consequently a child’s testimony needs to be given serious consideration. Moreover, in the judgement passed by Sardessai J. in February 1999 the trial judge viewed the evidence of spermatozoa in the anus as significant, as it was observed that it was not possible for discharge from the penis to fall on the anus of the same person. Kenkre J., however, has stated that ‘discharge from the penis can fall on the anus’ of the same person and has raised doubts about the possibility of sperm surviving for more than 48 hours without being ‘washed out at the time of taking bath or cleaning the anus after natural course’. Sardessai J.’s contention was that it appears improbable that the sperm in the anus could belong to the same person, because of ‘the anatomical position of the anus and the penis’ (to quote Judge Sardessai’s judgement).
Child rights activists were able to convince the State to appeal to the High Court against the decision of the Additional Sessions Court. But when the case came before the High Court child rights activists were aghast to learn that Brinkmann had left the country. The Public Prosecutor while informing the court that he was ‘probably’ not in the country, failed to draw the attention of the judges to the fact that the offender in question was a suspected paedophile.
In another travesty of justice the immigration authorities informed the Goa Police after Brinkmann had left the country in spite of a Look Out Circular against him.
Dominique Sabire Sabire was a Frenchman, aged 61 at the time of his arrest in 1999; an associate of Freddy Peats. A holder of two postgraduate degrees and a writer of bestsellers in French, he was caught at Delhi Airport, where he was in transit on his way to Thailand. There were previous references about his visits to Thailand in his letters. He left the country after jumping bail in February 2000, and continues to abscond. Ironically, the Campaign Against Paedophilia had warned the state of this possibility while conducting a campaign on the Brinkmann case.
Sabire was granted bail on 23 June 1999, but was required to report to the CBI office in Panaji every alternate day. He then made a plea that he be allowed to report to the Calangute Police Station as he was residing in Calangute. He was granted permission to do so from 16 February 2000. From 27 February he stopped reporting at the police station. However, Police Inspector Subhash Goltekar, who was in charge of the Calangute Police Station, informed the Public Prosecutor on 29 March, only 31 days after Sabire had stopped reporting to the Calangute Police Station, giving the Frenchman ample time to escape. Following this act of gross negligence on the part of this police officer, letters were written to the Director General Police demanding his suspension. However, to our knowledge, no action has been taken against him to date.
John Colin MiddletonMiddleton, a 71-year-old Britisher, was arrested on 19 March 2001 from a guest house in Benaulim where he was found with three Nepali children; two 13-year-olds and one 15-year-old, who he had brought with him from Nepal. According to Jan Ugahi and Childline, the organisations that had tipped off the police about the case, this man had a previous conviction for sodomy with a child in New Zealand. However, the Interpol has so far failed to respond to the inquiries of the Goa Police in this matter. Middleton was released on bail on 23 March 2001. His passport was later returned to him and he was allowed to leave the country. Unfortunately questions such as how three minor Nepali children were in his custody staying in the same room as him did not receive the attention they deserved.
In May 2003 the police along with Children’s Rights in Goa entered a hotel room in Calangute, and found Alan Dow with a 13-year-old girl, both skimpily clad and sharing the same bed. But as there was no forensic evidence Dow was allowed to leave the country and no case was registered against him.
From the case descriptions given above it is evident that serious attention needs to be given to the question of what needs to be done to protect children and prosecute paedophiles. In order to facilitate the prosecution of paedophiles the following points need to be realised by state authorities:o Investigation of cases of paedophilia should be given as much importance as cases of dacoity/narcotics and the NGOs should not be expected to do all the investigative work. Police should be motivated to investigate such cases by appropriate incentives, such as it reflecting positively in their service records.
Protocols need to be developed to ensure that paedophiles out on bail are prevented from escaping from the country. It should be a matter of procedure that the police communicate with immigration authorities and foreign embassies to alert them to the fact that the suspected offender should not be allowed to leave the country.
Sensitisation programmes have to be carried out among all those dealing with cases of paedophilia – the police, prosecutors and judges.
Existing laws should be used effectively to deal with cases of paedophilia until comprehensive laws are formulated to deal with cases of child sexual abuse.
Credit for this article goes to – Nishtha Desai, who is a child rights activist working with children in Goa.
I applaud her for her research and input but do not necessarily subscribe to all her viewpoints. For instance, the police need abuse specific education and training, incentives shouldn’t matter.Secondly, there are NO LAWS against CSA and the Goa Children’s Act is a state-specific deterrant which has it’s limitations and loopholes as the aforementioned article clearly points out.
A shocking recent judgement of the Supreme Court holds that no person can be punished for attempt to rape under the IPC. In this case a man, Tarkeshwar Sahu, a resident of Jharkhand, had lured a twelve-year-old girl to his hut, removed his clothes and the girl’s, and was trying to rape her. The SC only convicted the accused of molestation under Section 354 IPC which states that assault ‘intending to outrage’ the ‘modesty’ of a woman is punishable with up to two years’ imprisonment. The judgement is based on an erroneous interpretation of the law and also highlights the need for extensive amendments to deal with the law on sexual assault in general and child sexual abuse in particular.
Apparently, the Supreme Court held that Section 511 of the IPC only deals with attempts to commit offences punishable by life-imprisonment. A reading of the section and its illustrations will show that this is not true. Section 511 deals with attempts to commit any offence punishable by imprisonment for life, or other imprisonment, for which no specific punishment has been provided for in the code. The section states that an attempt to commit an offence will be punishable with half the longest term of punishment that is prescribed for committing the respective offence.
In the past we have had occasions to criticise judgments on attempt to rape because the courts, including the Supreme Court, have been extremely reluctant to hold a person guilty of attempt, even though the accused had, in fact, been trying to rape. Often the courts have relied upon technicalities to rule out attempt, particularly in cases in which the attempt was not at the last stage of the act. The courts have done this by drawing a distinction between the preparation to commit rape and the attempt to commit rape, and have invariably, as in this case, imposed a relatively minor punishment for molestation (up to two years).
In some cases courts have relied upon an old case decided way back in the 19th century (Empress V/s Shankar) which had held that a person can be convicted for an attempt to commit rape only if his conduct indicates a determination to gratify his passions and in spite of all resistance. Thus in various cases where a woman cried out for help or hit the assailant and he ran away, the courts have held that it cannot be said that the accused was determined to have sexual intercourse.
In the case of Jai Chand V/s the State, even though the accused (a hospital orderly) had forcibly laid the complainant nurse on the bed and after breaking the string of her trousers and removed her sanitary napkin, the High Court held that no attempt to rape had been proved, as the accused had not gone beyond the stage of preparation! The Court then proceeded to alter the conviction by the trial court of attempt to rape to one under Section 354 IPC, and punished the accused with two years’ imprisonment. All these judgements are informed with a patriarchal notion of what constitutes an offence of attempt to rape, which has not changed since the 19th century.
The judgement of Justices S B Sinha and Dalbir Bhandari also underlines the need for a law on child sexual abuse and change in the definition of molestation and rape. Sexual abuse of a child, even when it is not penetrative, should be an even harsher offence than molestation of an adult woman. Moreover, often, the sexual abuse of a child is not only by touching, but also by penetration of fingers and other objects. This at present is not recognised as rape under our law.
Furthermore, any non-penetrative sexual assault should constitute molestation and should be subject to a much higher punishment, even for an adult, than at present. The present definition of molestation makes an assault on a woman culpable only if it is done with the intention of outraging her modesty (whatever that means). Earlier the SC had held in a 1967 judgment that all girls possess modesty which is capable of being violated. The Rupan Deol Bajaj judgment in a positive interpretation held that all acts which are an affront to the dignity of a woman outrage her modesty.
The present judgement by interpreting the law is to forever excuse a man who attempts to rape and is as culpable as a rapist in many senses, is not only regrettable, but needs to be immediately reviewed by the Supreme Court itself. The judgement sets a dangerous precedent and will allow rapists, who have been unsuccessful in their attempts, to go unpunished for their real crime and to continue to pose a threat to women and children.
As has been mentioned, there is NO LAW that makes CHILD SEXUAL ABUSE a Legally Punishable offense.
We at Elaan think that is grossly unfair to our constitutional rights and think it is high time that the people of this country banded together and petitioned for a separate law against CSA that not only punishes the perpetrator, but also creates a much-required demarcation between the abuse of a male child and the abuse of a female child.
The definition of Child Sexual Abuse and what constitutes it, also requires legal definition.
Here’s an article that reports one Elaan event during which the legal situation was discussed.
http://timesofindia.indiatimes.com/articleshow/662430.cms – another great article on CSA and the lack of a law.
Everybody seems to be pretty clued into the fact that there is no law against child sexual abuse despite it’s prevalence and magnitude, not to mention short and long-term impact on a child’s psyche.. however, the actual paper pushing is nowhere close to pending.