OPINION | Why We Need to Stop Putting a Band-Aid on Child Sexual Abuse
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OPINION | Why We Need to Stop Putting a Band-Aid on Child Sexual Abuse

By Minakshi Das and Srishti Agnihotri

Castration as a punishment has captured the public discourse after the observations of a Madras HC Judge in an order against a British national. The Judge in question, Justice N Kirubakaran, made recommendations in favour of castration as a punishment for child sexual abuse wherein, he observed that [b]arbaric crime should definitely attract barbaric models of punishment.

OPINION | Why We Need to Stop Putting a Band-Aid on Child Sexual Abuse

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Public discourse on the issue has been expectedly divided. On one hand, human rights proponents have opposed the suggestion vehemently, while on the other hand, supporters of castration relying on practices in certain western democracies have argued for implementation of the same in India. However, much of the support for castration is on account of an emotive trigger, which ignores the fact that replicating western practices may not always yield the same results in India. Given this, it is suggestive that the absence of robust implementation mechanisms and a faulty criminal justice system in India will ensure that such measures are open to horrific abuses.

What is noteworthy is that, in this process there are two implicit assumptions that have not been challenged. First, there no guarantee that if implemented, chemical castration will provide justice to victims of child sexual abuse. And secondly, the  assumption that symbolic punishment like castration can deter child sexual abuse, stands questionable. In this context, as far as the first assumption is concerned, we believe that in order to ensure justice for victims of child sexual abuse, the criminal justice system needs an overhaul. For proposing severe and admittedly barbaric forms of punishment would only address the symptom and not the disease. While regarding the second assumption, it is important to assess the deterrence value of these measures when compared to a particular system- one that dispenses justice swiftly and effectively.

Besides, there is also a third normative issue. Where, if castration were to be an effective remedy to curb child sexual abuse, then would we as a society want to go down that road? Do we wish to “talibanize” our criminal justice system by initiating such ghastly practices? In this perspective, a cursory reading of the principles enshrined in our Constitution and various human rights documents, which we have ratified, would substantially point otherwise. Thus, in this regard, our analysis stands limited to the first two issues.

The Protection of Children from Sexual Offences (POCSO Act) was enacted in 2012 with the objective of protecting children from sexual assault, sexual harassment, and exploitation. However, the provisions of this excellent legislation havent assisted us in tackling the scourge of child sexual abuse effectively. Criminal trials still end up with a high rate of acquittals and with victims often turning hostile. The police force continues to be overworked, and the Courts overburdened. The provision for a speedy trial to be conducted in the time frame of one year, as mandated under the POCSO Act hasnt been complied with in a majority of cases. These and a host of other implementation gaps have effectively reduced an otherwise comprehensive legislation into a mere paper tiger. Consequently, the unpleasant experience with the criminal justice system and the fear of a prolonged trial makes a lot of families reluctant to take a case forward or causes a victim to turn hostile.

Issues such as mandatory reporting, which obligates persons to report on-going or future violations of the Act to the Police and Special Juvenile Police Unit are not known to majority of people because of inadequate awareness exercises. Given this backdrop, we believe that it is only through sustained inter stakeholder coordination comprising of NGOs, the legal community and the political class that we can realize the objects and purpose of the POCSO Act.

The castration discourse’ ignores the nuances and gradations of child sexual abuse by centring in the male genitals. Child sexual abuse can involve inappropriate touch, harassment, and stalking, as well as penetration.  Does it mean if castration fails as a perfect deterrence to control the deviants, the next measure to prevent CSA cases would be putting the accused in a straightjacket? On the issue of deterrence value of such symbolic punishments, let us consider the case of Bernard Madoff. Madoff was sentenced to 150 years for Ponzi Scheme, who at the time of sentencing was 71 years old. Judge Chin, to address the growing concern of White Collar Crime wanted to instil fear among the corporate and finance moguls. In doing so, he vividly mentioned that the idea of punishment sprang from three core attributes of punishment- retribution, deterrenceand a good measure of justice for the victims. Clearly, Justice Chins reasoning did not yield the intended results as White Collar Crimes has only risen in the past 50 years. Given this analogy, could we suggest with absolute certainty that castration of offenders will act as a silver bullet for eradication of child sexual abuse.

The best measure of a strong contemporary justice system with progressive ideology should have a blend of both utilitarian (crime prevention and reduction) and non-utilitarian (retributive method) methods. It demands for a pragmatic and result oriented approach for a greater good. The idea of crime reduction in child sexual offences can be secured only if quality preventive measures are undertaken to cure the situational problems. The law enforcement body needs to identify the place, hot spots of CSA cases, mapping high crime rates of CSA cases and providing quality prevention lessons and guidelines in schools, parents and educating the society at large will help create a safety net for the children and hence ensure crime reduction. Symbolic punishment can never be the perfect cure. It might help in generating fear temporarily but will fail to address the problem in the long run. Incapacitation and deterrence are older models of punishment and its inhumane approach can be labelled as regressive. For a contemporary “nyaya” (justice) system, the idea of crime reduction should be on prevention, rehabilitation and study of criminal behaviour to ascertain effective counter measures.

Therefore, given the problems with the implementation of the law, it becomes evident that ideas such as chemical castration or the death penalty are intellectual band-aids. That is, they delude us into thinking that the problem of child sexual abuse can be fixed without hard work and painstaking effort. Our children, however, need a complete first aid kit and not simply band aids. 

About The Authors:

Minakshi Das (0-1646-2015) and Srishti Agnihotri (O-1436-2015). 
Both the authors are lawyers and have been working in the field of child rights and the implementation of the Protection of Children from Sexual Offences Act, 2012

Publication Details:


Minakshi, Das, and Srishti Agnihotri. "OPINION | Why We Need to Stop Putting a Band-Aid on Child Sexual Abuse." IndraStra. November 17, 2015. Vol 1, Issue 11, 0439 https://www.indrastra.com/2015/11/OPINION-Why-We-Need-to-Stop-Putting-a-Band-Aid-on-Child-Sexual-Abuse-0439.html.|ISSN 2381-3652|