The Darker Side of Childhood: Prostitution

admin | January 25, 2018 | Criminal Law | No Comments

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This article was written by Ramandeep Singh, a student of New Law College, BVDU, Pune.

ABSTRACT

Childhood is generally considered the best stage in a persons life. But there are many children who are not given this opportunity, and pushed into the dark circle of prostitution. This aspect of crime & criminals has not received required attention yet. The rackets which target innocent children are spread worldwide & we hear such incidents everyday. It has been estimated that more than 3 million children are involved in child prostitution. By this research we aim to look into the problem & focus on how innocent children suffer because of it to draw attention of the society at large & hence to help the victims overcome the same.

NATURE OF STUDY

The mode of reseach is non emperical, i.e Doctrinal in nature wherein Secondary Data has been relied upon. It is based on information and interpretations.

SCOPE OF RESEARCH

This research covers the problem of child prostitution prevalent in India, as well as its legal remedies. This research aims to develop a clear understanding of child prostitution, its prevalence, characteristics of victims and offenders, its modus operandi and its redress under the Indian Judicial System.

IMPORTANCE AND SIGNIFICANCE

The 21st century is the era where people have become sex maniacs & often innocent children fall prey to it. Their lives are spoiled & they face nothing but misery & cruelty. A menace could only be uprooted when it is clearly understood.

INTRODUCTION

“The ritual sacrifice of children has been taboo for thousands of years. Yet tragically it is practiced everyday across our world. We sacrifice children on the altars of our most destructive sins. When the sickness of pornography has run to its most evil and destructive end, it takes the form of child pornography. When prostitution reaches it sickest, most depraved form, it becomes child prostitution.”[1]– Wess Stafford

“Child prostitution is the ultimate denial of the rights of the child.”

(Dr Jon E Rhode, UNICEF representative in India).

Definition of a “Child”

According to Section 3 of the Indian Majority Act, the age of majority is 18 in case of a natural guardian & 21 in case of a legal guardian. Generally a minor is considered a child.[2]

“Child” means a person who has not completed eighteenth year of age”[3]

Child Abuse

According to the WHO, “Child abuse or maltreatment constitutes all forms of physical and emotional ill-treatments, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power.”[4]

Defining Child Prostitution

Child prostitution is prostitution involving a child, and it is a form of commercial sexual exploitation of children. The term normally refers to prostitution of a minor, or person under the legal age of consent. In most jurisdictions, child prostitution is illegal as part of a general prohibition on prostitution.[5] Children are used for sex or sexual activities, in which both boys and girls could be involved. Their work can be seen on the streets, clubs, brothels, hotels, massage parlours etc. and is generally done for some remenuration or for exchange for some other form of retribution such as food, clothes, etc

HOW ARE THE VICTIMS TARGETTED?

Manipulative methods are used by traffickers or pimps to target vulnerable children &gain control over them. Innocent children are lured for food, clothes, toys, attention, friendship, love or security. They are made to feel that this place can offer the best to them and after the child starts to trust the offendor, he or she is pushed into prostitution. Once engaged, it can last life long & thus they accept it as their destiny. Tendrer minds of children are affeted by isolating them from their parents, friends or the society. The children face emotional, physiological & psychological abuse. A child belonging to every age group, religion, or social status can be a victim of the menace.

CAUSES

(a) Poverty
Most often parents have to sell their children to pimps because their salary is low & it is difficult for them to meet both ends. If not sold, orphaned or abandoned children, most probably are hit by this. They are vulnerable & need money, hence engage in prostitution.
Children as young as 12 are being sold for sex in one of Scotland’s poorest areas, reports suggest.[6]

(b) Lucrative amount of Money

Many children are lured into prostitution, mostly involving teens because of the high amount of money involved in the same. They engage into prostitution to maintaina high standard of living.

Children are kidnapped worldwide & pushed into prostitution and hance it becomes a life long activity for them.

(d) Rise in Sex Market

The offence is only commited because it is the society which acively angages in it. People pay a huge amount of money for child prostitutes as compared yo adul prostitutes. One of the major reasons behind this is alos the rise of pornography.

(e) AIDS

The fear of HIV/AIDS has contributed to the increase in Child Prostiution. People tend to believe that if they indulge in a sexual act with a virgin they will not contract HIV. “Recent Indian Government statistics put the number of people infected with HIV at 3.5million, indicating approximately three out of every 100 Indians are now infected with the virus which leads to AIDS. Almost 9 out of 10 of those people are below 45 years old.”[7]

INTERNATIONAL SEX TRAFFICKING OF MINORS

Sex trafficking may also involve the transportation of children across borders. Children are recruited & transferred from one country to another. This offence could be committed by an individual alone or could be organised by many people.

PIMPS

A pimp is an agent of prostitutes who makes money off the prostitutes’ earnings. The pimp could be a male or a female and uses threats, sexual abuse or physical violence to control his or her prostitutes. They are tortured for days, kept in conditions not suitable for human living. They are often blackmailed & hence have no choice but to be trapped in the vicious circle of prostitution.

CASE STUDY: DURGA MALA

“Durga Mala was rescued, she lay crying on the stone floor, where she was attempting to cool her back. She was 11 years old and her skin was covered with blisters, from her shoulder blades to her buttocks. A few days earlier, her owners had poured hot oil over her because they thought she was working too slowly.

Suddenly Durga heard screams and huddled on the floor. Acting on a tip, police stormed the apartment in the heart of Bangalore. When they broke the door down, Durga crossed her arms in front of her chest and closed her eyes. She was only wearing a pair of panties — that’s all the clothing that her owners had allowed her to have. Durga says: “I was ashamed.”

One of the men wrapped the small girl in a sheet and brought her to a hospital. Doctors treated her for a number of days. In addition to her burns, she was malnourished, infected wounds covered her fingers and her lips were scarred. “I dropped a glass once,” says Durga, “and the woman got angry and pulled my fingernails out, one by one.” Sometimes they poked her in the mouth with a needle. Durga was supposed to work, not speak.

Durga grew up in Calcutta. When she was seven, her father died, followed two years later by the death of her mother. Her grandmother took in Durga and her three elder sisters, but she couldn’t manage to feed all four of them. One girl had to go, so she sold off the youngest. Via an intermediary, a family of total strangers paid 80 rupees for Durga.

Durga traveled alone by train the nearly 2,000 kilometers (1,240 miles) to Bangalore. She can’t remember the journey, but she recalls her arrival. “The woman picked me up at the train station,” she says. “I was afraid but she told me that I would be well treated.”

From that day onwards, she cleaned the couple’s apartment every day, cooked, did the laundry and the dishes. Durga was never paid, was never given time off and was never allowed to leave the building. The woman beat her often; the man hit her less often. Durga didn’t try to defend herself. “Grandma told me I should always be nice,” says Durga.

Today, Durga is 12 years old. Her weight has returned to normal, and she has large eyes and full lips. She wears her black hair tied in a knot behind her head. Her white teeth shine as she speaks, lighting up her soft face. Durga lives in Rainbow Home, a children’s shelter run by the Catholic organization Bosco. Fifty-six girls live here in two empty rooms, with no chairs or tables. The children play, sleep and do their homework on the floor. They eat together in the hallway.”[8]

SCOPE OF THE PROBLEM IN INDIA

It has been estimated that India has more than 900 000 sex workers. 30% of which are believed to be children. Recent reports point towards the heartbreaking fact that the number of child prostitutes are increasing at a rate of 8 to10% per annum.[9]

“Estimates released by international agencies indicate that trafficking of minor girls is a $1-billion-a-year industry, and it is thriving due to increased sex tourism in Mumbai, Goa and adjoining coastal areas.”[10]

“Edging past North-Eastern states, poverty-stricken rural areas of Maharashtra — Beed, Latur, Solapur, Jalgaon, Ahmednagar, Nandurbar, Chandrapur, Washim, Akola, Buldhana, Dhule and the Konkan region — have emerged as one of the biggest suppliers of minors.

States such as Assam, West Bengal, Bihar, Andhra Pradesh, Karnataka, Uttar Pradesh and Orissa have also opened up as the new supply markets, says a Mumbai police source.”[11]

“According to an Indian government census from 2001, this country of over 1 billion people has 12.6 million minors between the ages of 5 and 14 who are working. The real number is undoubtedly significantly higher because many children are not officially registered at birth — and the owners of course do their best to keep the existence of child slaves a secret. Aid organizations estimate that three-quarters of all domestic servants in India are children, and 90 percent of those are girls. Although both child labor and child trafficking are illegal, police rarely intervene — and the courts seldom convict child traffickers and slaveholders.”[12]

“Where prostitution is a Family business:

The tribal community of Bedia that resides along the Jaipur Highway outside Bharatpur takes pride in their family business which is “Prostitution”. Customarily, were entertainers in Rajasthan and MP. It was their occupation to for the women and girls to perform for feudal lords. With the changing times Prostitution has become their family tradition.

Adolescent girls are initiated into the family ‘tradition’, while their brothers become ‘agents’. According to Prof K K Mukherjee, former head of department of social work, DU, “There are 91 families in Khakranagla. Of these, 75 are of Nat, Bedia and Gujjar castes 46 of them engage in sex work.”

Apart form the Bedia, there are other tribal communities such as the Kanjars, Nuts and Sanshis who takes up prostitution as their primary source of income.”[13]

PROVISIONS FOR CHILD PROSTITUTION IN INDIA

The Protection Of Children From Sexual Offenses Act, 2012 can be considered the central legislation dealing with child sexual abuse in India. The Immoral Traffic (Prevention) Act of 1956, contains provisions regarding Child Prostitution but its scope remains limited only to trafficking of girls and women for prostitution. The Juvenile Justice (Care and Protection of Children ) Act, 2000, The Indian Penal Code, 1860, The IndecentRepresentation of Women ( Prohibition) Act, 1986, Criminal Procedure Code 1973, also provide for provisions regarding child prostitution.

The Section 5 of Immoral Traffic (Prevention) Act:

(a) Any person who procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or a [person], whether with or without [his] consent, for the purpose of prostitution; or

(b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or

(d) causes or induces a [person] to carry on prostitution,[person] to carry on prostitution, [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this subsection,— (i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;]”[14]

THE INDIAN PENAL CODE

Section 366A

“Procuration of minor girl.—Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.”

Section 366B

“Importation of girl from foreign country – Whoever imports into 2[India] from any country outside India 3[or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.”

Section 372

“Selling minor for purposes of prostitution, etc.—Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.”[15]

Section 373

“Buying minor for purposes of prostitution, etc.—Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[16]

Section 354

“Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”[17]

Age of consent for Sexual acts:

Section 375 Indian Penal Code defines Rape

“1[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

STATE AMENDMENT

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)].

COMMENTS

Absence of injury on male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand v. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.”[18]

THE CONSTITUTION OF INDIA

Article 23 – Prohibition of traffic in human beings and forced labour

“(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them”[19]
In Raj Bahadur Vs. Legal Remembrancer[20], it was held that trafficking of women for immoral purposes is prohibited under Article 23 of the Indian Constitution.

Article 15(3)

Stands as an exception to non-discrimination and enables the state to make special provisios for women & children

“Article 15(3): Nothing in this article shall prevent the State from making any special provision for women and children”[21]

Although Directive Principles of State Policies are not enforceale in the court of law, they are fundamental to the governance of a country.

Article 39(e) & (f) of The Indian Constitution

“Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing:

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”[22]

THE CRIMINAL PROCEDURE CODE 1973 – SECTIONS 97 & 98

Section 97

“If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.”

Section 98

“Power to compel restoration of abducted females. Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub- divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.”[23]

THE JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT, 2000

It is the umbrella legislation for juvenile justice in India. It’s approach is for the prevention and treatment of juvenile delinquency and also provides for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system.

THE CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT ACT, 2016

The Long Title

“An Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes and the matters connected therewith or incidental thereto.”[24]

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

It acts as the main legislation dealing with sexual offences commited against children.

It is “an act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental there to.”[25]

It also requires “State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent”

Definition of a child: any person below the age of 18 years

Aims to: Protect all children from sexual offences such as sexual harassment, sexual assault and pornography. These offences have been defined in the Act.

Provides for: stringent punishments, graded as per the gravity of the offence, ranging from simple to rigorous imprisonment of varying periods, fines (which are to be decided by the Court) etc

Establishment of Special Courts for trial of offences is also provided under the Act.

Child friendly procedures for reporting, recording of evidence, investigation and trial of offences are incorporated in the act.

The intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized is recognised in the act.

Attempt to commit an offence under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year. For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.”[26]

CONCLUSION

Pushing a child into prostitution can be the cruelest of offences. Childhood is meant to develop an individual into a citizen of tomorrow. It is meant for learning & developing oneself, and it is not morally, ethically & legally fair to push a child into prostitution. The judiciary & the legislature are trying their best to uproot the menace but nothing could work if the adults do not recognise the problem of child sexual abuse, because it is the adults who victimize children. Awareness sould be generated on a large scale, children should be made aware of their rights. Offendors should be provided with stringent punishments so as to set an example to the society.

The efficient implementation of the provisions is equally important and thus the concerned authorities should pay greater attention to it. The laws should not remain as mere paper provisions.

[1] Wess Stafford, Goodreads, available at https://www.goodreads.com/quotes/602519-the-ritual-sacrifice-of-children-has-been-taboo-for-thousands, last seen on 22/11/2017

[2] Indian Majority Act, 1875

[3] The Juvenile Justice (Care and Protection of Children) Act, 2000

[4] WHO, Child maltreatment, available at http://www.who.int/mediacentre/factsheets/fs150/en/, last seen on 22/11/2017

[5] Wikipedia, Child prostitution, available at https://en.wikipedia.org/wiki/Child_prostitution, last seen on 21/11/2017

[6] Nicole Morley, Children as young as 12 sold for sex in Glasgow prostitution ring, available at http://metro.co.uk/2017/11/18/children-as-young-as-12-sold-for-sex-in-glasgow-prostitution-ring-7089268/, last seen on 21/11/2017

[7] Hum Coolie, Child Prostitution in India, available at http://www.hum-coolie.com/child-prostitution.htm, last seen on 22/11/2017

[8] ANNE BACKHAUS and SPIEGEL, Daughters for Sale: India’s Child Slavery Scourge, available at http://abcnews.go.com/International/daughters-sale-indias-child-slavery-scourge/story?id=20540368, last seen on 22/11/2017

[9] Hum Coolie, Child Prostitution in India, available at http://www.hum-coolie.com/child-prostitution.htm, last seen on 22/11/2017

[10] Haima Deshpande, Using minors in prostitution is a billion dollar industry in the city DNA India, available at http://www.dnaindia.com/mumbai/report-using-minors-in-prostitution-is-a-billion-dollar-industry-in-the-city-1083952, last seen on 22/11/2017

[11] Id.

[12] ANNE BACKHAUS and SPIEGEL, Daughters for Sale: India’s Child Slavery Scourge, available at http://abcnews.go.com/International/daughters-sale-indias-child-slavery-scourge/story?id=20540368, last seen on 22/11/2017

[13] India Today Online, Child prostitution in India: Awareness can help!, available at http://indiatoday.intoday.in/education/story/child-prostitution-in-india-awareness-can-help/1/326450.html, last seen on 22/11/2017

[14] Immoral Traffic (Prevention) Act, 1953, Sec.5

[15] Indian Penal Code, 1860, Sec.372

[16] Indian Penal Code, 1860, Sec.373

[17] Indian Penal Code, 1860, Sec.374

[18] Indian Penal Code, 1860, Sec.375

[19] The Constitution Of India 1949

[20] AIR 1953 CAL 22

[21] The Constitution Of India 1949

[22] The Constitution Of India 1949

[23] The Criminal Procedure Code, 1973

[24] The Child Labour (Prohibition and Regulation) Amendment Act, 2016

[25] The Protection Of Children From Sexual Offenses Act, 2012

[26] Childline, The Protection Of Children From Sexual Offenses Act, 2012, available at http://www.childlineindia.org.in/The-Protection-of-Children-from-Sexual-Offences-Act-2012.htm, last seen on 22/11/2017