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FYI 20th October, 2021

The Management and Prevention of Child Sexual Abuse Under the Protection of Children from Sexual Offences (POCSO) Act 2012.

Child sexual abuse, as defined by the WHO, is “the involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to or for which the child is not developmentally prepared or else that violate the laws or social taboos of society.”(1) 

Child sexual abuse (CSA) includes all forms of sexual victimization of children – penetrative or non-penetrative sexual intercourse, sexual harassment, commercial sexual exploitation, pornography, sex tourism and online exploitation. In India, the Protection of Children from Sexual Offences (POCSO) Act, 2012 (that regards any sexual activity with a child below 18 years a crime), describes various forms of sexual offences. 

A study conducted in 2009, noted that about 7.9% of males and 19.7% of females under eighteen years of age globally face sexual abuse.(3) The Africas show a 34.4% prevalence rate of CSA, highest in the world (3,4) and Europe, America & Asia reported 9.2%, 10.1%, and 23.9% CSA respectively. (3) 

19% of the world’s children population lives in India and about 41% of the total population of India were below 18 years of age, according to the 2011 census. Among them about 40% children are vulnerable to being homeless, trafficking, drug abuse, forced labor and crime. (8) 

In 2011, India reported the world’s largest number of child sexual abuse case: 33,098, and 7,112 cases of child rape. (5,6) A child less than 16 years of age is raped every 155 minutes; a child under 10 years every 13th hour. At any point of time, one child out of ten is sexually abused. (7) Every second child is exposed to some form of sexual abuse and every fifth child faces critical forms of sexual abuse. (6) According to UNICEF, during the period from 2005 to 2013, 10% of Indian girls had experienced sexual violence in the age group of 10–14 years and 30% in the 15–19 age group. Overall, about 42% of Indian girls have gone through sexual violence before their adolescence. (9) 

In India, we have a very progressive act called Protection of Children from Sexual Offences Act (POCSO) which deals with child sexual abuse cases. The act sets guidelines to safeguard the interests of the child at every stage of the judicial process: by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and the speedy trial of offences through special courts. 

The Act also sets the provision for the medical examination of a child, despite which a majority of health care professionals are not trained to examine and manage a case of child sexual abuse. It is important that they acquire the necessary expertise. This communication describes the management of CSA, focusing on medical history, physical examination and forensic aspects. Physicians also need to be aware of prevention of CSA and the POCSO Act, which clearly mentions their responsibility in the management of CSA. 

Medical examination of child according to section 27 of the POSCO Act 2012 

The medical examination of a child is to be conducted as per the provisions of section 27 of the POCSO Act, 2012 and section 164-A of the CrPC (Code of Criminal Procedure), 1973. A medical examination of a child shall be conducted: 

  1. Even before a FIR or a complaint is registered. 
  2. By a government doctor in a government hospital or a hospital run by a local authority. If a government doctor is not available, the examination can be conducted by any other registered medical practitioner. 
  3. With the consent of the child or of a person competent to give consent on behalf of the child. 
  4. In the presence of the parent of the child or any other person in whom the child reposes trust or confidence. 
  5. Within 24 hours from the time of receiving information about the offence. 
  6. In case the victim is a girl child, the medical examination shall be conducted by a female doctor. 
  7. For any reason, the parent of the child or other person referred to in sub-section (3) could not be present, the head of the medical institution will nominate a woman and the medical examination shall be conducted in the presence of that woman. 
  8. The doctor shall forward the report to the investigation officer without any delay, who shall forward it to the Magistrate. 

Consent: An informed consent must be obtained, which is required for examination, collection of samples for forensic examination, treatment and police intimation. If the child is over 12 years of age, consent should be sought from the child. For those below the age of 12 years, a parent or guardian is required to provide it. Such consent should be informed and the person providing the consent should be clearly explained the purpose, expected risks, benefits and any adverse effects of the examination, and the amount of time it will consume. This information should be provided before the examination is conducted [7-9].

Medical history & examination: 

During the examination of children, the attending physician should record the medical history and carry out a detailed examination and prepare a medical report with photographic/video documentation of all findings as result of offence. After this, the diagnosis of sexual abuse should be made and treatment prescribed. 

The doctor’s role becomes more crucial, when there is no direct allegation of sexual abuse but on the other hand, the child is complaining about (i) vaginal discharge (ii) abdominal pain (iii) has no complaint but an incidental finding of enlarged hymeneal ring. These are the findings that could be directly/indirectly related to the possibility of sexual abuse. Doctor should record the nature of the assault including anal, vaginal and/or oral penetration. Physicians should look at any injuries like bruises, burns, scars or rashes on the skin and breasts and describe the size, location, pattern and colour of the injuries. The child should also be checked for vaginal or anal pain and bleeding and/or any discharge and any pain/difficulty in defecation or urination etc. Furthermore, the doctor should look for any signs of force and/or the use of restraints, particularly around the neck, extremities and genitals. 

If the child is menstruating at the time of examination, then a second examination is to be done to record the injuries more visibly and clearly. In the majority of children, the findings are found normal but normal or non-specific findings does not rule out sexual abuse. During examination a child should be asked questions in his/her own language without leading questions, such as what, when, where, and how. These are the important questions in the medical evaluation in suspected cases of child sexual abuse. Medical history should also include allergies, immunization status and other medications. Sometimes, children report the incident after weeks or months, in that case the physical findings/injuries to the genital or anal regions are minimal/healed or absent. These cases should be carefully examined. 

Evidence collection: Forensic evidence, including clothing’s specially underwear for evidentiary DNA, should be carefully collected and preserved. 

Privacy: The examination should be as little painful and disturbing to the child as possible. The examination should not be conducted in place that may cause additional trauma to the child. The privacy must be insured and be sensitive to the child’s feelings of embarrassment. The examination should stop if the child feels discomfort or withdraws permission to continue. If the child is mature enough to understand, then the doctor can ask the child whom they want to be present during the examination. 

Mandatory reporting: When a doctor suspects that a child has been or is being sexually abused even in the absence of consent of child or parents, there are mandatory legal obligations to report child sexual abuse cases to the appropriate authorities (the police or the relevant person within his organization). If he fails to do so, he may be liable for punishment of imprisonment of up to six months, with or without fine. 

Referral & counselling: For counselling, for testing of HIV and other sexually transmitted diseases, then the child may be referred to the concerned centre. 

When the child resists the examinationThe physical examination should be done with utmost comfort and care, and should not cause any trauma to the child, so if a child at any stage refuses the genital-anal examination, then it is better to postpone the examination. 

The examination should not be done forcefully; such an examination may cause more trauma for the child. Doctors should understand the fear and anxieties of a child and recognise the potential sources of unease and try to alleviate the problem. Sedation or anaesthesia is rarely used but can be given when the child refuses and is unable to cooperate for conditions where urgent medical attention is required, like bleeding or a foreign object present in the body. In case of pre-pubertal girls, speculum examination should be done under anaesthesia.

Regarding emergency medical care of the child: 

Whenever an officer of the Special Juvenile Police Unit (SJPU), or the local police receives information about the offence and the police officer is satisfied that the child needs urgent medical care and protection, as early as possible, but not later than 24 hours of receiving information, he/she shall take the child to the nearest hospital (government or private) for emergency medical care. Section 23 of the Criminal Law Amendment Act, which inserts section 357C into the CrPC 1973, states that all hospitals are bound to provide first-aid or medical treatment free of cost. 

During emergency medical care a child shall be provided privacy. The examination shall be done in the presence of the parent or guardian or any other person in whom the child reposes trust and confidence. The medical practitioner or hospital rendering emergency medical care shall not demand any documentation, legal or magisterial requisition for the treatment. The child shall be treated for injuries including genital injuries. Also children shall be treated for exposure to STDs, HIV. Wherever required, prophylaxis may be given. The treating doctor may also consult with the expert of infectious diseases. In case of possible pregnancy, emergency contraceptives should be given after discussion with the pubertal child and their parents. If it is needed, a referral or consultation for mental or psychological health counselling should be taken. Forensic evidence should be collected as per the section 27 of the POSCO act. 

Compensation for medical expenses: According to section 33(8) of the act, special courts in addition to the punishment, are entrusted with power to grant compensation to the child for treatment or for immediate rehabilitation of any physical or mental trauma. The section 7(1) of the act mentioned that the compensation may be paid on an interim basis, to meet the immediate needs of the child at any time after the First Information Report. The section 7(3) prescribed the criteria which are to be taken into consideration for fixing the compensation amount. These criteria include the severity of the injuries or physical harm and/or mental trauma which are suffered by the child. Further, this should also include the expenditure incurred or likely to be incurred for medical treatment for physical and/or mental illness and any other disability occurred due to sexual offence.

The role of medical professionals as expert witnesses

Child sexual abuse cases are often very difficult to decide and prove because most of the time CSA cases occurs in secret, usually leaves no physical evidence and often occurs for a prolonged period of time and often no other person remains as an eyewitness other than the child themselves. Many times, children’s testimony can be ineffective as many children are unable to give conclusive testimony. 

In such situations under section 45 to 51 of Indian Evidence Act (IEA), the expert medical witness’s testimony can be useful. Medical practitioner, on the basis of history, statements of child and medical examination, can give conclusive opinions regarding sexual abuse. The physician cannot make ultimate conclusions, whether the victim consented for any sexual activity and what degree of force was used by the abuser. Because medical experts treated or examined the child, can appropriately conclude that whether there is evidence of recent sexual contact, any recent injury and the history and medical examination are consistent with sexual abuse. The medical professionals should always prepare their report in simple language, so that the court, advocate and parties can understand the report easily. While framing the report, they should also incorporate their clinical experience along with written research/literature. The expert’s opinion must be a reasonable degree of certainty and admissible as per the guidelines. The expert’s opinions are not final and the court is not bound by an expert’s opinion. The expert’s opinion is corroborative evidence; the court will determine what weight should be given to other evidence which is presented before the court.

Prevention of Child Sexual Abuse:

Child sexual abuse should be considered a preventable crime. The society must shed old traditions of silence, shame and embarrassment and act against this most unacceptable violation of child right and dignity. Whereas the parents have the primary responsibility of protecting their children, they must be supported by the civil society. Information about the prevalence of CSA, its occurrence in all societies and particularly who are the common perpetrators, legal aspects and the ways for its prevention should be widely disseminated. 

Adolescents need more detailed knowledge of body physiology, sexual intercourse, pregnancy, healthy relationships and sexual violence, which is best provided at schools by trained teachers. This information can be packaged as health and family life education, thus avoiding the term ‘sex education’. The parents should ask the child to report any unusual behavior by adults or older children. Their accounts must not be ignored and the child never made to feel guilty.

Child sexual is frequently reported from children’s homes, workplaces and schools. Institutions must be closely supervised by independent agencies and records of their inspections maintained. The staff at these homes should be carefully selected. School authorities and teachers should be informed about CSA and strict vigilance needs to be maintained. Improper use of the internet and mobile phones may put the children at the risk of sexual misconduct.

CHILDLINE 1098: This is an emergency helpline, which can link children in situations of abuse and neglect with socio-legal services. It is operational in more than 602 cities and districts across the country (India) and has proven to be of great help. Medical professionals and others should be aware of this telephone helpline, and call it to refer cases of known or suspected child abuse or neglect. Clinics and hospitals should prominently display the Childline telephone number (1098).

 

CSA is a particularly shameful criminal act. The practice is globally prevalent and occurs in all societies. Pediatricians and other health care professionals are often the first contact for CSA victims and thus need to have the expertise for its adequate clinical evaluation and treatment, and be knowledgeable of the legal aspects. A multi-disciplinary response is necessary for comprehensive management that includes psychological support to the victim and the family. The Government of India’s Act for Prevention of Children from Sexual Offences Act (POCSO, 2012) defines CSA and lays down responsibilities of physicians and gives management guidelines and legal procedures. Parents, school teachers and the civil society at large must overcome the traditional attitudes of silence and shame and take appropriate measures to prevent CSA.

 

References 

  1. Guidelines for medico-legal care for victims of sexual violence. Geneva: World Health organization; Child Sexual abuse updated 2003.  
  2. Putnam FW. Ten year researches update review: Child sexual abuse. J Am Acad Child Adolesc Psychiatry. 2003;42:269–78. 
  3. Wihbey J. Global prevalence of child sexual abuse. Journalist Resource. Journalistsresource.org/studies/. /global-prevalence-child- sexual-abuse. 
  4. Behere PB, Mulmule AN. Sexual abuse in 8 year old child: Where do we stand legally? Indian J Psychol Med. 2013;35:203–5. 
  5. Study on Child Abuse: India 2007. Ministry of Women and Child development Government of India. 
  6. Behere PB, Sathyanarayana Rao TS, Mulmule AN. Sexual abuse in women with special reference to children: Barriers, boundaries and beyond. Indian J Psychiatry. 2013;55:316–19. 
  7. Child line organization. Childline 1098 service. 
  8. Breaking the silence. Child sexual abuse in India. USA, Humans rights watch. 2013. 
  9. Ray A. 42% of Indian girls are sexually abused before 19: UNICEF. The Times of India. 2014. Sep 12.

 

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