Child Sexual Abuse Prevention And Elimination In Pakistan Law General Essay

Published Date: 02 Nov 2017

ABSTRACT

Most of the laws relating to the protection of children are obsolete in Pakistan. The Pakistan Penal Code 1860 does not provide punishments for offences relating to child sexual abuse and does not differentiate offences which relates to children and adults. These facts necessiates the protection of children from sexual abuse. For this reason, the research question "Child Sexual Abuse Prevention and Elimination in Pakistan" received atttention. This article focus on the issues:-

• What is child sexual abuse;

• The developments introduced by the Courts through judgments in laws relating to child sexual abuse and the laws enacted as a result of these judgments.

• The laws existing in Pakistan relating to child sexual abuse and the developments made by the Courts through judgments in those laws.

• That comprehensive amendments required in the criminal law to respond child sexual abuse in Pakistan.

• Recommendations for preventing and addressing issues of child sexual abuse.

What we need are the comprehensive amendments in the criminal justice system of pakistan to develop a uniform law to combat child sexual abuse.

Keywords: child sexual abuse, Pakistan, prevention.

INTRODUCTION

Sexual abuse of any form has never been tolerated by any religion. Islam forbids homosexual acts and declares these acts as punishable. The Holy Quran teaches that the most sinful act is the act of homeo-sexuality, this is the Messege of God conveyed to human beings through the Holy Quran. The people of Lot were destroyed and severely punished by God for committing homeo-sexual acts. There is very strict punishment for illegal sexual intercourse in Islam.

Christianity forbids sexual abuse in the same way and every child is a unique individual created by God. According to Bible, God is concerned for chilldren and anybody who causes sexual abuse to a child will be punished heavily.

Sexual contact of any kind between a grown up and a minor including fondling and kissing is stricly forbidden in Jewish law. Jewish law is very strict on this subject, forbids intentional illict thoughts and activities which may be resulted in sexual stimulation.

Jewish law forbids intentional self-stimulation and illicit sexual thoughts. It even forbids a number of gentle activities that may bring about sexual stimulation.

Children are the supreme national asset and the future of a nation depends upon its children. The importance of a child can not be ignored in a civilised society because the growth and development of a nation depends upon the well being of its children.

The term 'Child Abuse' may include physical abuse, sexual abuse, emotional abuse and neglect.

Child sexual abuse is improper sexual behaviour with a child. It includes touching or fondling the genitals of a child or inducing a child to fondle an adult genitals, child molestation (with or without penetration),sodomy, rape and pornography.

Child sexual abuse ia major problem in almost all societies and child molestation is increasing day by day.

Child sexual abuse exists Pakistan and the incidence is much higher than generally perceived. The purpose of the study was to establish that child abuse exists and the laws available in Pakistan are not enough to combat child sexual abuse. More over the purpose of this research study is to provide the information base that will help government to formulate the necessary legislation, to develop improvements in the criminal justice system of Pakistan to deal with this problem. The study also throws up key areas for further research.

The overarching responsibility is that of the state and it is the state that has to create a protective environment and provide a safety net for children who fall into vulnerable and exploitative situations.

2.WHAT IS CHILD SEXUAL EXPLOITATION OR ABUSE

There is no precise and comprehensine defination of child sexual abuse, however, sexual abuse to a child refers to violent sexual acts which wil physically and mentally harm a child. Child sexual abuse is a burning problem in almost all countries and especially in Pakistan. Child sexual abuse is a an attempt or sexual assault by a grown up man or by a child of older or same age towards the child to commit sexual act with him without the consent of that child.

Child sexual exploitation or abuse may be divided in two categories. The first is non-contact which includes exhibitionism, voyeurism, fondling, oral genital sex, attempted penetration, intercourse with (or penetration is not included), child pornography, children's exposure to pornography, and with each other or with animals forced to have sex.

Second category is Contact which includes kissing a child or touching a child with sexual intents, fondling, masturbation, oral sex, intercourse.

Most common types of child sexual abuse in Pakistan are abduction for sexual abuse, molestation, rape, sodomyor incest and murder after sexual abuse.

UNITED NATIONS CONVENTION ON CHILD RIGHTS 1989:

The United Nations Convention on the Rights of the Child which is also known as CRC is a treaty to safeguards the human, social, cultural, civil, economic, health and sefety rights of the children. The Convention defined a child as a human being under the age of eighteen years, unless a different age of majority is recognised by a the law of a country. The signitories of this convention are bound to it by international law. This Convention comprised of 54 articles and two Optional Protocols. This conventions recognises the right of a child to survive in society, to have equal opportunities to develop himelf, to be fully protected against any harms likely to occure to him, protection against any form of sexual abuse and the right to fully participate in his family, social and cultural life as the basic human rights of the children.

The basic principle of the Convention is that every child have equal rights without any discrimination.The rights describes by the Convention are belong to the human dignity and harmonic development of every child. The basic purpose of the Convention is to protect children's rights. Article 34 declares that the States are responsible to protect children from all forms of sexual abuse and are responsible to take all necessary measures on all levels to eradicate this evil.

3.DEVELOPMENTS IN CHILD SEXUAL ABUSE LAWS IN DIFFERENT COUNTRIES

3.1. United States of America:

In the United States hearesy evidence is admissible in evidence in child sexual abuse cases with few exceptions. Hearsay evidence is very impotant in child sexual abuse cases. Generally trials take a long time to be concluded and a child have the fear of forgetting the evidence which he is going to record in the trial court. Moreover during the trial, the child also distrubed mentaly. The Courts must understand this condition of the child and must give value to the hearsay evidence to bring the culprit to justice.

The case titled as Ohio v. Robert, established the foundation for allowing hearsay evidence, the statement of the actual witnesss who was not available was so trustworthy and reliable that the Court considers it justifiable that another person was permitted to repeat it in the Court. The reliability of a statement depends upon the Court to decide whether it is true.

In White v. Illinois,the Supreme Court has to settle the question of the admission of hearsay evidence in the presence of the Confrontation Clause of the Sixth Amendment. In this case Randall White was charged with the offence of assaulting sexually a four-year-old girl, during theft in a residential building. The occurance was witnessed by the babysitter by hearing the screamsof the victim.

White was found guilty by the Court and appealed in the High Court arguing therein that the hearsay testimony of the babysitter was not valid in the presence of the Confrontation Clause. The High Court unanimously decides taht there is no linkage between the Confrontation Clause and the admissibility of hearsay testimony. The US Supreme Court come to the conclusion that in this case the hearsay evidence is corborated with the medical evidence and considering the principle of "Res gestae, upheld hearsay evidence as valid.

In Coy Versus Lowa, the US Supreme Court held that the use of screen between the child and the accused during the cross examination was not a violation of the Confrontation Clause. The arguement that the use of screen was prejudicial and an infringement of the due process was also rejected by the US Supreme Court.

In Maryland Versus Craig, The Supreme Court declares that it is in the best interest of justice that there should be an evidentiary hearing before the commencement of the trial, where it will be examined what effects have been made on the child giving testimony in the presence of the accused.

In Idaho vs. Wright, the US Supreme Court considred to examine the questine what are the exceptions in the heresay evidence which are admissible in the presence of the Confrontation Clause. The US Supreme Court set forth a test which is comprised of two parts in order to determine whether hearsay evidence has to be admitted in child sexual abuse cases. Firstly, hearsay evidence has to fall into an exception of the hearsay rule to be admitted in evidence. Secondly, the statement will be inadmissible in evidence if the statement does not fall under a hearsay exception that is not firmly rooted. The statement will meet the standards of admissibility of the Confrontation Clause, if it is trustworthy.

New Jersey Versus Michaels, Kelly Michaels was convicted of sexually abusing children while they were in a day care centre and he was imprisoned for 5 years. He filed an appeal. The victim children in this case had been interviewed and asked highly leading, suggestive, and coercive questions. The Supreme Court held that the interviews of the victims like interrogations were not proper, and there will be substantial likelihood that the evidence derived from the victims was unreliable, instead of this practice a pretrial hearing was initiated in which the state was bound to prove beyond any shadow of doubt by a clear and convincing evidence that the testimony of the victims was reliable enough to warrrant admission of trial.

Coy v. Iowa and Maryland v. Craig set the principles for the arrangements of closed circut television or screen between the victim and the offender in order to testify the child without any fear and face to face contact with the accused in child sexual abuse cases.

Whereas Idaho v. Wright and White v. Illinois admits hearsay exceptions. The judgment delivered in the White case has a wider applicapability and threatens the Confrontation Clause rights which are claimed by all accused.

The United States Supreme Court responds to the developments in the child sexual abuse cases by acknowledging the difficulities faced by the prosecution. The US Supreme Court considered the facts that the court rooms atmospher is not suitable to the child sexual abuse victims who have been damaged by physical as well as psychological effects, and therefore, intoducing developments in all levels to make the courtrooms more friendly.

The Child Abuse Prevention and Treatment Act is a development in the area of child sexual abuse laws in the United States. It was enacted on January 31, 1974. CAPTA was amended several times, lastly it was amended on 20-12-2010 by the CAPTA Reauthorization Act of 2010 CAPTA authorises the United States Federal Government to play an active role in research, technical assistence and data collection activities. The Office on Child Abuse and Neglect was established under this Act.

3.2. United Kingdom:

The Sexual Offences Act, 2003 is a great development in the area of child sexual abuse laws in the United Kingdom.

The government believed taht the exisiting laws relating to sexual offences have been out dated, therefore this act was introduced to reform the laws relating to sexual offences specially laws for the protection of children in child sexual abuse caes.

This new Act makes consent the key feature between the sex contacting parties. A clear definition of consent has been added. The accused has to prove that the sexual act has been done with the consent of his partner. It widended the definition of rape by including peneration in vagina, anus or mouth with or without consent. It also introduces a new offence of assault by penetration of an object in vagina or annus such as bottle or any other thing. It also includes in sexual assualt the intentional sexual touching without consent. This Act declares the age of a child at 18 years and provides protection for all sexual offenses to a child under the age of 16 years. It introduces new criminal offences including familial sexual abuse, ffences committed by adult relatives and offences giving protection to persons with mental disorder.This Act also re-designs the offence of abuse of a trust position towards a child and introduces effective measures to protect children from sex offenders. This Act introduces for the first tim,e the offence of voyeurism.

The Sexual Offences (Scotland) Act, 2009 provides a comprehensive framework of laws for sexual offences in Scotlanda. This Act repeals the old laws relating to rape, sodomy and a several other offences relating to sexual abuse and particularly intoduces new statutory laws relaing to sexual abuse which take place without consent. This Act defines consent as free agreement.

The system of children’s hearing was introduced by the Social Work (Scotland) Act 1968, which is now included in the Children's Hearings Scotland Act, 2011. Its aim is to combine justice and welfare for children.

In Re P.B. (a minor), it was held by the Court that the evidence of the doctor about the statement given by a child during the interviewcant not be struck out on the ground that it was against the hearsay rule but can be admitted by the court on its discretion.

In the proceedings relating to wardship cases, the most important purpose before a court is the wefare of a child. It should be the duty of the court that the rules of procedure and the rules of evidence should not be applied in such a manner to prejudice the wefare of the minor. If the evidence availabl is the only one which could prove the alleged sexual offence with which the accused was charged.

3.3-India:

In India children are also victims of sexual abue like other countries, they are sxually abused by family members, relatives, servants, teachers and friends.

The laws relating to sexual offences are found in the Constitution of India and in the Indian Penal Code 1908. But the real developments in the child sexual abuse laws were made by the superior judiciary of India through their judgments on this subjects

Sakshi vs. Union of India and Ors is a landmine judgment in the judicial history of india relating to the child sexual abuse cases, the Supreme Court holds that the laws in Indian Penal Code are not sufficient enough to cover all sexual offences against women, or child sexual abuse. Previously, the Delhi High Court holds that the penetration by father to his eight years old daughter was neither a rape nor an unnatural offence, and declared it as hurt or an outrage of modesty. Appeal was filed in the Supreme Court of India. Sakshi (an NGO) filed the petition in the yera 1997 and contended in its petition the scope of sections 375 and 376 is very limited and it wil be extended to include other forms of sexual offences which intends to degrade or humiliate a women or child

Considering the sensitivity of child sexual abuse and rape cases, the Supreme Court established that the victim and witnesses should be prevented from face to face contact with the accused during trial by using a screen or similar arrangements.

The Court established that the defence side should put their questions in cross examination to the child in writing through the trial judge and the trial judge should expalin those questions to the child victim clearly and in a simple language. The Court holds that in camera proceedings should be manadatory in cases even penile penetration have not been occured.

Sheba Abidi versus State of Delhi , the Delhi High Court keeping in view the priciples established in the Judgment passed by the August Supreme Court of India in the case of Sakshi, established further parameters in cases of child sexual abuse.

The Court established that it is the responsibility of the court to assure that the child was not psychologically traumatised, and the court should allow the child to give evidence outside the court, if the child was uncomfortable in the court atmoshpher and feel relutant to go inside the courtroom. Further the child is entitled to get support of any person including the family member or parent to accompany him during the trial proceedings. The Court established that the child victim can testify outside the Court.

In the case State of Punjab vs. Gurmit Singh, the Supreme Court has made the observations that the trials relating to the child sexual offences wil be held in camera and held that in camera trials are mandatory in cases relating to child sexual abuse. The Court also held that lady judges should conduct the hearing of these types of cases. The Court further held that It is the reponsibility of the court to consider all these factors and the process of cross-examination shoud not be made a means of harassment to the victim.

As a result of these judgments, The Protection of Children from Sexual Offences Act, 2012 was passed by the indian legistlature. This Act introduces child friendly procedure for recording the statement of a child, at the place of his choice and by a woman police officer of a higher rank and also the police officer will not be in uniform while recording his statement. The child can require the help of a translator or an expert.In case of disability, the child can take the assistance of a special educator for communication. No aggressive questions are allowed to be put the child during his cross examination. The evidence of child must be recorded within 30 days. Trials should be conducted in-camera.

Special courts should be established for trial of offences under this Act. The onus of proof is shifted on the accused, considering the innocence of children. The period of one year is fixed for conclusion of a trial. The media cannot disclose the identity of the victim child without the prior permission of the Special Court.

4. PAKISTAN:

Child sexual abuse is existing in Pakistan. It has become a very serious problem in our society. A minor girl or boy being abused or raped every second day in Pakistan. There is no official agency which prepares a data of this crime. Child molestation would certainly be a child abuse but all acts of child abuse would not necessarily be child molestation. Sexual molestation of a child is of various types. It could be fondling of the gential organs of the child, or it could be showing him nude photographsto arouse his sexual emotions or it could be in form of physical nudity with the object of sexually provoking or using a child. The child sexual abuse acts or the child sexual molestation have not been categorically defined as offences in the Pakistan Penal Code or in any other law of the Sate.

Child sexual abuse becomes a common and serious problem in pakistan, the most recognised forms are molestation, sodomy, rape, sexual abuse without penetration and abduction for sexual abuse which sometimes resulted in murder of the child.

Commercial sexual exploitation of children is another serious prolem in Pakistan. Boys are targeted more then girls. Both boys and girls are used in the prostitution business. Boys are available for prostitution at bus stops and hotels, on the other hand girls are supplied in private homes and hotels. Prostitution is illegal in Pakistan, but it is existed under the cover of dancing business. In prostitution businesss, virginity of a girl at an early age has to be sold on a very high price in Pakistan, this is called "NathUtrai" or "first night."

Child Sexual Abuse Laws in Pakistan: Sexual abuse is improper sexual behaviour with a child. It includes touching or fondling the genitals of a child or inducing a child to fondle an adult genitals, child molestation (with or without penetration),sodomy, rape and pornography.

There are no specific laws relating to child sexual abuse in Pakistan like the The Child Abuse Prevention and Treatment Act in USA, The Sexual Offences Act, 2003 in UK and The Protection of Children from Sexual Offences Act, 2012 in India. Most of the existing laws have not been specifically made offences relating to child sexual abuse or sexual molestation in our criminal law.

Equal protection of law envisaged in Article 25 f the Constitution of Pakistan 1973 means that no person or class of persons would be denied same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their live, liberty, property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in same manner.

The concept embodied in Article 25 of the Constitution of Pakistan 1973 is similar to Article 7 of the Universal Declaration of Human Rights. No discrimination is allowed in case of children. Further, Article 37(e) stipulates that the state shall make provisions for securing just and humane conditions of work for children and women ensuring that they are not employed in vocations which are not suited to their age or sex.

Section 82 of the Pakistan Penal Code, 1860 provides that a child under the age of seven years can not be guilty of a crime. Section 375 provides the definition for rape and section 376 PPC provides punishment for rape. Section 377 delas with unnatural offences, e.g, sodomy. Section. 292 of PPC deals with Child pornography. Section 7 of The Offence of Zina (Enforcement of Hudood) Ordinane 1979 deals with Zina (rape) of a minor. Section 3 of the The Police Order 2002 provides thatit is the duty of police officials to aid individuals who are in danger of physical harm particularly women and children.

State versus Abdul Malik is a landmark judgment which established the basis for the development of the laws relating to child sexual abuse in Pakistan. The High Court holds that the rape of a minor would ordinarily resulted in feeling of fear and insecurity in society, therefore, the offence would be covered by Anti Terrorism Act, 1997. Secondly the term child molestation has not been defined in any law in Pakistan. Most of the foegoing acts have not been specifically made child molestation an offence in our criminal law. The rape of a child or Zina-bil-Jabr is an serious form of child molestation and the punishment for zina-bil-jabr is provided in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The act of child molestation being a heinous offence should be tried by a special Court constituted under the Anti Terrorism Act, 1997. The Court further holds that penal laws should be amended to make the child sexual abuse offences punishable. The High Court Further Holds that section 6 clause (c) Anti Terrorism Act, 1997 appears to have been drafted in haste and child molestation in its various meanings have not been defined nor any punishment has been prescribed for other types of child molestation. The High Court directs the Government toexamine the desirability of some affirmative action in the light of this judgment.

In another case titled as Akhter Ali Versus The State, it was held that the rape of a minor child is a serious offence and a feature of horror.

Effects:

The sexual abuse of children touches us all. It is very serious problem of our society. Sex of this nature hurts the child physically; destroys them mentally, robs them of their innocence permanently. Their ability to manage relationships for life is ruined. They will never trust another adult due to the mishap they suffered in their life. Children can not be used for sexual intercourse as they are not physically or mentally grown up. Sexual intercourse between a grown up man and five years old child can not be possible. This unrealistic behaviour shows the mental sickness of the offender who sexually abused a child to satisfy his lust. This is the behaviour of a monster and not a civilised person.

The sexual abuse of a child have very bad effects on the victim, it menatally distroyed a child and the child become sexually aggressive. The child lost trust on his family and relatives in case of familal sexual abuse.

The child victim psychological suffers more serious and dangerous consequences as compare to physical effects.they will be effected by anxiety, aggressiveness, guilty feeling and depression.

The sexual abuse of a child involves serious impacts on victim’s body, honour, privacy, safety and right to independence.

The victim’s life totally reuned and he becomes unable to live a normal life. The child always feel used and dirty and thus mentally distrubed in his whole life.

Prevention and Elimination of Child Sexual Abuse

Prevention measures against child sexual abuse must be improved an increased in number. The most important is the development in the criminal justice system regarding the child sexual abuse. The state cannot punish citizens without specific laws warning them that particular conduct will be dealt with by way of punishment in a particular manner. The criminal law is the strongest arm of all the normative systems of the society by which it punishes, controls, curbs and prevents crime in the society. The evil has lived with the mankind from its beginning and the society has to make continuous efforts to keep it at bay and the criminal law keeps undergoing change so as to meet the new challenges. The basic purpose of the ciminal justice is to save the society from evil, to free it of crime. The criminal law has to be interpreted, applied and enforced in a manner so as to acheive these objectives.

We need a comprehensive criminal justice system in order to eliminate child sexual abuse from our society, and this object should only be acheived by awarding punishment to deter people from committing this crime. Child molestation should be included as an offence in the Anti-Terrorism Act, 1997.

Judges are particularly accountable to their conscious and more than this to Almighty Allah. A crime free society can only be set up if every citizen irrespective of his colour, creed, religion and status is provided justice and in this respect court can play a vital major role.

Campaigns should be launched to aware society about the child sexual abuse and exploitation.

Media and NGO’s should play their effective rols in these campaigns.

Conclusion:

This study on child abuse is expected to place the subject of child abuse on the national agenda. An environment must be created wherein discussion on child abuse has been initiated, the media wil highlight issues. The central government, provincial governments, civil society, families and children themselves need to understand the rights perspective and together create the enabling environment wherein a child is protected from abuse and exploitation. The momentum needs to be sustained and should be carried forward in the form of a movement that will take all stakeholders along the road to sustainable development and create a protective environment for the children of Pakistan.

The offence of rape (Zina) occurs in section 7 of The Offence of Zina (Enforcement of Hudood) Ordinane 1979. Whereas rape is defined in Section 375. The offence of rape affects the dignity of a woman. The physical scar may heal up, but the scar on her soul will always remain. The victim lost her valuable and priceless dignity.

Security of persons is an essenttial function of state and this purpose can only be acheived through the medium of criminal law. Protection of society is the aim of law which must be accomplished by imposing proper sentence. Law should adopt the remedial machinery in operating the sentencing system. It will be a denial of justice, when a accused was allowed to evade the major penalty while facing such cruel acts. It is the responsibility of the court to award a proper sentence regarding the nature of the offence and the manner in which the offence was committed. The social effect of the crime, when it relates to offences against children requires exemplary punishment.

In a democracy, the State includes in three constitutional organs the Legislature, the Executive and the Judiciary, which must play their effective and active role to combat child sexual abuse.

It is the fundamental duty of a state to protect children from sexual exploitation. Parliament should legislate laws and these laws should be effective only with the strict enforcement by the executive authorities. It is, therefore, essential to to develop model legislation covering all elements of child sexual abuse.

Recommendations for preventing and addressing issues of child sexual abuse

Based on the findings of the study, the following recommendations for addressing the issue of child abuse are proposed.

Legal, Trial Proceedings, Policy and Practical Recommendations

The recommendations I make are a combination of legal, judicial, policy and practical measures to eliminate child sexual abuse in Pakistan.

Legal Recommendations

A comprehensive law should be enacted which will cover all offences relating to child sexual abuse like the child sexual offences laws in USA, UK and India. Child molestation should be included as an offence in the Anti-Terrorism Act, 1997, which should be tried by the special court established under the Anti-Terrorism Act, 1997. The punishment awarded for child molestation should be death penality or imprisonment for life. Amendments also be made in the Criminal Procedure Code, 1898 and the Qanun-e-Shahadat order, 1984 to fill gaps in the procedural law.

The age of child shall be declared 18 years instead of 7 years.

Recommendations relating to Judicial Process

Child friendly procedure for recording the statement of a child, at the place of his choice and by a woman police officer of a higher rank and also the police officer will not be in uniform while recording his statement. The child can require the help of a translator or an expert. In case of disability, the child can take the assistance of a special educator for communication. No aggressive questions should be allowed to be put the child during his cross examination. Alternative moods of recording evidence should be intoduced by amending the relvent laws such as video trial, pre-recorded interviews of the victim child. The evidence of child must be recorded within 30 days. Trials should be conducted in-camera. The maximum period of one year should be fixed for conclusion of a trial.

Policy Recommendations

The Juvenile Justice System Ordinance, 2000 needs to be implemented at every level in Pakistan.

The standard operating procedures should be made. The sexually abused children should be rehabilitated by counselling at the police station and in their houses. Training workshop should be conducted to train the judiciary, prosecution, defence lawyers and the law enforcement agencies.

Practical recommendations

An Anti Child Sexual Abuse Unit should be established in the police sub–division. A monitoring cell should be established at the District Police Office for monitoringand collecting data. Forensic Laboratory should be fully equipped with latest equipments. The investigation officer should not be below the rank of asub-inspector, who will be responsible for recording the staement of the child victim and registration of the First Information Report (FIR). The investgation officers should be supportive and co-opreative to the child and the family. The police shall make arrangements for the medical examination and transportation to the hospital of the child victim. Collect items for a change of clothes if needed. Make use of appropriate investigative techniques. A psychologist should be arranged for the child victim. The investigation officer should visit the court with the child to familiarise him or her with the courtroom setting and atmosphere before the first hearing. This role should be assumed by the public prosecutor.

Suggestions for Further Research

Findings of the current study confirm the existence of child sexual abuse. Further research is needed to examine the effects of child sexual abuse, this would suggest that more research is needed in Pakistan.