Introduction
Child sex abuse is one of the most heinous breaches of the right to human dignity because it undermines the victim child’s feeling of security, dignity, and trust. Children are the most vulnerable members of our society. Child sex abuse is a breach of a child’s right to human dignity. It is not merely the act of abuse that is harmful; the impact of the abuse is much more extensive. Child sex abuse may cause emotional and psychological trauma to the victim. In the last few years, a notable spike in the number of sex abuse cases has been observed. This trend has caused serious concern in our society. Although the rising number of sex abuse cases is a reflection of the alarming rates of sex abuse in our society, it is also a reflection of the fact that victims are now brave enough to come out and seek justice. This awareness has led to a healthy discussion on the need for legal protection. This concern has also been observed in India through the various reforms that have been brought about in the laws of the country. The long-existing Indian Penal Code has now been replaced by a new code called Bharatiya Nyaya Sanhita (BNS), which promises to bring a new wave of criminal justice reforms to India by strengthening the country’s response to various crimes committed in the jurisdiction, including those involving crimes against children. The purpose of the discussion is to evaluate the seriousness of the issue of child sex abuse as a human rights violation and how it is affected by the shift from the IPC to the BNS and in this article the author has explained everything about Child Sexual Abuse under BNS.
Meaning and Scope of Child Sexual Abuse under BNS
Child sexual abuse is any sexual act that occurs between an adult and a child and that damages the dignity, safety, and physical well-being of the child. Child sexual abuse is considered a serious infringement of the rights of the child. Child sexual abuse has serious physical, emotional, and mental health impacts on the child. Children are vulnerable and may be unable to comprehend and resist sexual activities. Therefore, the law has put in place stringent protections against the sexual exploitation and abuse of children.
Legal Definition and Age of a Child
As far as the legal aspect of child sexual abuse is concerned, it can be stated that the legal definition of child sexual abuse in the context of involving a minor in gratification, exploitation, and manipulation in any form of sexual activity is clearly specified in the Protection of Children from Sexual Offences Act of 2012 and related provisions of the Bharatiya Nyaya Sanhita of 2023, which replaced the Indian Penal Code of 1860. It clearly states that children cannot legally consent in any form of sexual activity. According to Indian law, a child means a person below the age of 18 years as per international conventions like the United Nations Convention on the Rights of the Child.
Types of Child Sexual Abuse under BNS
There are several forms of child sexual abuse, and they are as follows:
- Physical Sexual Abuse (Contact Abuse): This is a form of child sexual abuse that involves direct physical contact with the child, for instance, touching, fondling, and forcing the child to participate in any sexual act.
- Penetrative Sexual Abuse: This is a form of child sexual abuse that involves the penetration of the child’s body with a sex organ, object, and body parts, and it is considered a very serious form of child sexual abuse.
- Non-Penetrative Sexual Abuse: These are forms of child sexual abuse that do not involve penetration, and they are considered very abusive and humiliating for the child, for instance, touching a child’s private parts, forcing a child to look at a sexual act, and exposing a child to a sexual act.
- Sexual Exploitation: This is another form of child sexual abuse, which is committed by exploiting the child sexually, such as child pornography, trafficking, and prostitution
Categorization of Child Sexual offence under BNS
The Bharatiya Nyaya Sanhita, 2023 has categorized crimes like rape, sexual assault, trafficking, and outraging modesty, with stiffer penalties if the child is the victim. This legislation has further consolidated the law in protecting children from sexual offenses and exploitation under the Protection of Children from Sexual Offenses Act, 2012.
Historical Legal Position: From IPC to BNS
The legal system that has been developed with regard to sexual offenses in India has been developed over a period of time as Indian society has become aware of the seriousness of sexual offenses and the need to protect the weaker sections of the population, especially children. Sexual offenses were previously dealt with under the Indian Penal Code, 1860, which was the basis of the Indian criminal law system. Rape was dealt with under Section 375 of the Indian Penal Code, and the punishment for the same was dealt with under Section 376 of the Indian Penal Code. These sections were related to offenses that did not have the consent of the victims. These sections were related to offenses against women in general and did not take into account the special position of children.
As the awareness of the sexual abuse of children grew, it was realized that children needed a separate and more protective law. This led to the introduction of the Protection of Children from Sexual Offences Act, 2012. This law addressed the crime against children by clearly defining the various types of sexual assault on children, including penetrative sexual assault, non-penetrative sexual assault, sexual harassment of children, and the use of children for creating pornography. Child-friendly procedures were also included in the law so that children could seek justice without any further trauma. But in many cases, the crime against children could be charged under both the IPC and the POCSO Act.
However, with time, the need to update India’s criminal laws was recognized since the IPC was a colonial law enacted in the year 1860. Therefore, the government enacted the Bharatiya Nyaya Sanhita, 2023 (BNS) as part of a broader overhaul of the criminal justice system. It replaces the IPC and seeks to simplify language, reorganize the law of crimes, and enhance provisions dealing with crimes against women and children.
Currently, although the Protection of Children from Sexual Offences Act, 2012 remains in force protecting children from sexual exploitation, the BNS offers a new-age criminal law regime with an emphasis on effective enforcement and keeping in line with changing social realities.
Legal Framework Governing Child Sexual Abuse under BNS
The Bharatiya Nyaya Sanhita, 2023 (BNS) is the new criminal law that replaced the Indian Penal Code, 1860 and now governs the commission of many offenses in India, including sexual offenses. Although the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a specialized law that deals with the protection of children from the commission of sexual offenses, the BNS contains a number of provisions that are applicable when the commission of sexual offenses is committed against minors.
According to the BNS, the law on the commission of the offense of rape is contained in Section 63. It provides the circumstances under which a sexual act committed on a victim is rape. These circumstances include the commission of the act without the consent of the victim, by force, threat, or by deceit. The law takes the commission of the offense of rape seriously when the victim is a minor because the minor cannot legally consent to the commission of the act. Section 64 provides the punishment for the commission of the offense of rape. The punishment may include a rigorous imprisonment for many years or even a life sentence.
Moreover, it has provisions for more severe offenses under Section 65, which is related to aggravated rape. These are those offenses that are committed under more troubling circumstances. These are offenses that are committed by a person whom the child trusts or depends upon for care. These are more severe offenses as the perpetrator has abused a position of authority.
Furthermore, Section 66 is related to offenses that result in the death of the victim or leave the victim in a permanent vegetative state. These are severe offenses that are punishable by life imprisonment. Other sections related to these offenses are Section 74, which is related to assault or criminal force with intent to outrage modesty, and Section 75, which is related to sexual harassment, when there is improper sexual behavior directed at a minor.
The Bharatiya Nyaya Sanhita, 2023 is a more effective law in dealing with sexual offenses as it defines offenses more clearly and has more severe punishments. It is a more effective law as it works in conjunction with the Protection of Children from Sexual Offences Act, 2012.
Stricter Punishments and Sentencing Policy
The Bharatiya Nyaya Sanhita (BNS), 2023, provides more severe punishment and an effective sentencing policy for sexual offenses. There is an increase in the minimum punishment for sexual offenses against children. This is because it has become increasingly acknowledged that sexual offenses against children cause significant harm to the victim and therefore need to be addressed more seriously. There has been an increase in the minimum punishment compared to the earlier provisions of the Indian Penal Code (IPC).
Under Section 64 of the BNS, the punishment for the offense of rape is rigorous imprisonment for a minimum of ten years and may extend to imprisonment for the remainder of the offender’s life. There is also stricter punishment provided for circumstances that are more serious in nature. For example, if the offender is someone who is in a position of trust and authority, such as a teacher, guardian, or relative, the law recognizes that the offense is not just the act of rape itself but also the breach of trust.
A more severe penalty is provided in cases where the victim is under the age of sixteen years. Under Section 65, a rigorous sentence of a minimum of twenty years of imprisonment or a sentence of life imprisonment may be meted out. Even in the most serious of cases where the victim either dies or remains in a vegetative condition due to the assault, the death penalty may be imposed.
These sterner sentences have been put in place in addition to the Protection of Children from Sexual Offences Act, thereby ensuring a stern legal action against the offender while at the same time reiterating the commitment of the legal system towards protecting children.
Victim-centric approaches in child sexual abuse under BNS
Bharatiya Nyaya Sanhita (BNS) 2023 is a more ‘victim-centric’ approach to dealing with child sexual abuse cases. The law understands that a child who has gone through such a terrible experience is traumatized at a deep emotional and psychological level. The entire criminal justice system is not only focused on punishing the offender but also making sure that the child is treated with dignity, sensitivity, and care at every stage of the criminal justice system.
One of the most important protections is that of protecting the identity of the victim. The law strictly prohibits the disclosure of any kind of information that could reveal the identity of a child who has gone through sexual offenses.
The second important aspect is the in-camera trial. Here, the trial takes place behind closed doors rather than in an open court. This way, the child does not have to narrate his/her traumatic experiences in front of the public. This way, the child finds the procedure less intimidating.
The legal framework also provides for child-friendly procedures during the trial and investigation. For instance, the statement of the child may be recorded in a comfortable environment. The questions may be asked in a gentle and sensitive manner. The presence of the trusted adult may also be permitted so that the child feels secure during the interaction with the authorities.
However, in some instances, presumption clauses are present in the law that put some kind of burden on the accused after establishing some basic facts. This is because it is very difficult for young victims of sexual abuse to establish evidence against their offenders.
In addition to this, there is also the Protection of Children from Sexual Offences Act, and all these steps have been taken to ensure that a compassionate and caring environment is created within the law that offers support, respect, and confidence to children.
Constitutional perspective on child sexual abuse laws
The problem of child sexual abuse has also been viewed from the point of view of the Constitution of India that offers fundamental rights to all its citizens, including children. According to the Constitution of India, every individual has a fundamental right to a dignified life that is safe and respected. In case of a sexual abuse incident against a child, the fundamental values of the Constitution are violated.
One of the most important provisions that offer protection to the citizens of India comes in the form of the right to life and liberty under Article 21. This right has been interpreted to include the right to live with dignity and safety. The concept of bodily integrity implies that every person has the right to control their own body and be free from any kind of physical harm. Child sexual abuse directly violates the concept of bodily integrity since it causes physical and emotional harm to the victim. Hence, the need of the hour is to protect children from sexual abuse so that their rights as enshrined in the Constitution of India are respected. The Constitution of India also recognizes the fact that children are vulnerable and need special care. Under Article 15(3), the state has the power to enact special laws for the welfare of women and children. This is the concept of constitutional morality that needs to be followed in the state.
In this context, laws such as the Protection of Children from Sexual Offenses Act and provisions under the Bharatiya Nyaya Sanhita are not just any laws. These are laws that represent the responsibility of the State to ensure that children are provided with a safe environment to live in. These laws are intended to ensure that every child is able to live, learn, and grow without any fear while ensuring that their dignity and rights are fully protected.
Impact of legal advancement on child protection India
India has made some major strides in protecting children from sexual abuse and exploitation in recent years. These strides are indicative of the recognition that children are some of the most vulnerable people in society and are in dire need of legal protection. By introducing clearer laws and sterner punishment and more sensitive processes, children are being better protected.
One of the major milestones in this regard has been the enactment of the Protection of Children from Sexual Offences Act (POCSO), 2012. The law has been specifically designed to deal with sexual crimes against children and has been tailored to address some of the challenges that are posed by child victims. The law has expanded the scope of sexual offenses while incorporating some important provisions that are favorable to child victims. For example, it has ensured that child trials are conducted in a sensitive manner by conducting in-camera trials, protecting the identity of the child, and establishing special courts for dealing with such cases.
Most recently, the implementation of the Bharatiya Nyaya Sanhita (BNS), 2023, which has replaced the Indian Penal Code, has further strengthened the criminal law framework. The new law has imposed more severe punishment and a more stringent sentencing policy for dealing with sexual offenses involving minors. The law has attempted to provide a greater deterrent effect by imposing more severe penalties for such crimes.
The aforementioned developments in law have also led to an increased awareness of cases of child sexual abuse. Even though problems persist in the form of social stigmatization and delays in the justice system, the development of law indicates a serious attempt by the State to safeguard the rights of children and ensure an environment conducive for their development.
Need for Further Reform and Policy Recommendation
India has come a long way in developing stronger laws against cases of child sexual abuse. However, it is clear that there is a need for further reforms and stronger policies in these laws in order to ensure their effectiveness. Laws such as the Protection of Children from Sexual Offences Act and the Bharatiya Nyaya Sanhita have provided a strong framework in law; however, the real challenge lies in their implementation.
One of the main issues is the delay in the investigation and the court proceedings. Though special courts have been set up for the cases related to the POCSO Act, it takes a lot of time for the final judgment to be delivered. For the child who has already suffered so much, the repeated hearings and the waiting for the case to be closed might be emotionally draining. Hence, it is essential that the investigation and the trial be conducted quickly so that justice is delivered without any further delay.
The second important aspect is the training and awareness among the authorities. The police officials, the judges, the doctors, and the people who are directly or indirectly related to the case must be trained to handle the child victims of crime. If the children feel secure and comfortable during the entire procedure of the law, they might be more willing to disclose their experiences.
Moreover, there is a need for providing greater support and rehabilitation for the victims. Children who have been through abuse need counseling and emotional support so that they can get over the trauma that they have been through. This will help them regain their confidence and move forward with their lives with a sense of pride.
On the other hand, awareness and education are equally important. Children need to be made aware of their safety and encouraged to open up about any abuse that they may have been through. This will help them avoid abuse.
Hence, it is evident that though the law is in a good position, there is a need for further reforms and better implementation so that every child in India grows up in a safe and secure environment.
Conclusion
Child sexual abuse is probably one of the most serious violations of the inherent dignity, safety, and rights of the child. In recent times, India has seen tremendous growth and advancement in the legislative measures it has taken to safeguard children against these serious offenses. The recent promulgation of the Protection of Children from Sexual Offenses Act, 2012, is one of the most significant steps taken by the Indian Parliament. This specialized legislation not only clearly defines the various aspects of child sexual abuse but also provides a more child-friendly procedure. Recently, the promulgation of the Bharatiya Nyaya Sanhita (BNS) 2023, replacing the Indian Penal Code, has provided the Indian criminal justice system with an even clearer picture and stricter punishment for the crime of child sexual abuse.
However, at the same time, there are a number of challenges that need to be worked on. These include delays in the judicial process, lack of adequate training on the same on the part of the authorities, stigma, and lack of adequate support for the victims. These are the challenges that need to be worked on in order to ensure that the children are able to seek justice.
Ultimately, the protection of children from sexual abuse is not merely a function of the law. Rather, it is a function of the entire society. Going forward, it is necessary to ensure that the children are able to grow up in a society that respects their dignity.
Frequently Asked Questions
1. What is Child Sexual Abuse under BNS?
Child Sexual Abuse refers to any sexual act, behaviour, or exploitation committed against a child (a person below the age of 18 years) for sexual gratification, without the consent of the child. Severe punishments, such as rigorous punishment, which may include life imprisonment, are prescribed for the offence under the BNS, 2023.
2. How has BNS introduced legal advancements in child sexual abuse laws?
The Bharatiya Nyaya Sanhita (BNS) has also taken a stronger and more serious approach to deal with the problem of sexual abuse of children. It is not only more serious in awarding punishments to those committing these crimes, but it also takes a wider approach in defining sexual offenses so that all forms of sexual abuse of children are recognized and dealt with. It also puts more emphasis on protecting children, as their safety, dignity, and well-being are at the core of this new legal code. These new approaches have been put in place as part of a new and complete code, which has already been implemented with the Protection of Children from Sexual Offences (POCSO) Act of 2012. The idea of both these codes is to make sexual offenders more accountable and protect children from sexual abuse
3. What are the punishments for child sexual abuse under BNS?
Child sexual abuse is strictly prohibited and punished as per the Bharatiya Nyaya Sanhita, 2023 (BNS). The punishment is mainly as prescribed under the provisions relating to the offense of rape, aggravated rape, gang rape, and sexual offenses against minors.
a. Rape of a Minor (Section 65 BNS)
• If the offense of rape is committed by a person against a girl below the age of 16 years, the punishment is rigorous imprisonment for a minimum of 20 years, which can extend to life imprisonment and a fine.
• If the victim is below the age of 12 years, the punishment is rigorous imprisonment for a minimum of 20 years, which can extend to life imprisonment for the remainder of the natural life or even the death penalty and a fine to the victim.
b. Gang Rape of a Minor (Section 65/Section 70 BNS)
• If the victim is below the age of 18 years and is raped by a group of persons, all the persons committing the offense are considered guilty.
• The punishment can extend to life imprisonment or the death penalty and a fine.
c. Causing Death or Permanent Vegetative State of the Victim (Section 66 BNS)
• When sexual assault results in the death of the victim or renders the victim in a permanent vegetative state, the punishment may extend to rigorous imprisonment of not less than 20 years, life imprisonment, or the death penalty.
d. Repeat Offenders (Section 71 BNS)
• When an individual commits the same offence, i.e., rape or gang rape, the punishment may extend to life imprisonment of the remainder of the natural lifespan of the individual or the death penalty.
e. Other Related Offences Against Children
Other related offences involving children may attract the following punishments:
• Procuration of a child for the purposes of sexual intercourse (Section 96) – imprisonment for a term of 10 years, along with a fine.
• Sale of a child for prostitution or other illicit intercourse (Sections 98, 99) – imprisonment for a term of 10 years, along with a fine.
4. What is the difference between POCSO Act and BNS in child sexual abuse cases?
Ans.
| Basis | POCSO Act, 2012 | Bharatiya Nyaya Sanhita (BNS), 2023 |
| Nature of Law | A special legislation which has been enacted to address sexual offenses against children. | A general criminal legislation which replaced the IPC and regulates other criminal offenses such as sexual offenses. |
| Status in Law | The POCSO Act is in full force even after the introduction of BNS. It continues to remain the primary legislation to deal with child sexual abuse. | BNS is in addition to POCSO and has provided general provisions to deal with offences like rape and sexual assault. |
| Scope of Protection | It applies only to children below the age of 18 and includes a wide range of offenses such as penetrative sexual assault, sexual harassment, and the use of children in pornography. | It includes sexual offenses against women and minors but its provisions are wide and not limited to children. |
| Relationship Between the Laws | As it is a special law, POCSO takes precedence over BNS in cases of sexual abuse of children by the doctrine of special law prevailing over general law. | It is the general framework of criminal liability but in cases involving minors, the court follows the provisions of POCSO. |
| Procedural Safeguards | Provides child-friendly procedures such as in-camera trials, recording of statements by female officers, protection of the child’s identity, and special courts for speedy trials. | BNS mainly focuses on defining the offenses and the punishment, whereas the procedural protection is very less and is guided by the general criminal procedures. |
| Objective | Focuses on child protection, victim sensitivity, and rehabilitation. | Focuses on defining the offenses and prescribing the punishment in the broader criminal justice system. |
About Author
Manav Gupta, law student at City Law College, Jankipuram Lucknow, is a budding legal writer with a sharp eye for evolving legal landscapes. Passionate about Criminal Law, and Women and Child Safety Laws, Manav actively explores contemporary legal nuances through writing and research.
References
Bharatiya Nyaya Sanhita, 2023.
Protection of Children from Sexual Offences Act, 2012.
Constitution of India, 1950.
United Nations Convention on the Rights of the Child, 1989.
K.D. Gaur, Textbook on Indian Penal Code.
Ratanlal & Dhirajlal, The Indian Penal Code.Bottom of Form