SEXUAL ABUSE AND EXPLOITATION OF BOYS IN SOUTH ASIA A ...

375 on rape addresses only females. In Section 376, covering abuse by persons caring for the
child, the provisions forbidding intercourse by a public servant, a jail superintendent or
hospital staff forbid only the rape of women, although ‘children’ are protected from rape
committed by management or staff of a children’s institution. Anal intercourse falls under the
offence of sodomy, or ‘immoral acts’, in Section 377 of the Indian Penal Code, which
criminalized consensual homosexual acts among adults, as well as non-consensual acts and
sex involving minors. While this could be used to prosecute those who rape boys, it also
renders the boy a potential criminal, and in the past the law has been frequently used to harass
males having consensual sex. In July 2009, the criminalization of consensual homosexual acts
among adults was declared unconstitutional by the Delhi High Court.
There is no legal acknowledgement that parents and siblings can be perpetrators, nor any
specific legislation forbidding incest in India. The exception to this is the Goa Children’s Act
2003, which includes incest among the ‘sexual offences’ for which a perpetrator can be
punished. The definition of incest includes anyone who is a relative or related by adoption. 235
The penalties are insignificant: one year in prison and a fine. However, the ITPA Section 9,
on seduction of a person in custody, refers to those persons who have “custody, charge or care
of” another person. This and other provisions relating to the abuse of persons by their
custodian can be applied to incest cases.
Non-penetrative sexual abuse, including molestation and sexual harassment, could be
addressed in Indian law through Section 354 of the IPC (“…outraging the modesty of a
woman”), although the terminology is vague and inadequate to bring about a conviction. As
the title indicates, the provision applies only to females. As of this writing, an Offences
Against Children (Prevention) Bill was being prepared by government, NGOs, legal experts
and social workers. This bill would recommend punishment for unlawful sexual contact, noncontact
sexual offences with a child, sexual harassment and intimidation.
National legislation does not cover other forms of child sexual abuse, including using
indecent sexually explicit language towards a child as well as indecent exposure of sexual
activities and showing children pornographic material. They could, with some effort, fall
under the IPC sodomy law provisions of ‘unnatural acts’, but it is doubtful whether the
existing law has the strength to provide conviction. There is no reference to women as
perpetrators of sexual intercourse with a minor, rape or other forms of child sexual abuse in
either the ITPA or the IPC.
Most forms of sexual abuse are addressed in the Goa Children’s Act, which penalizes
touching, voyeurism, exhibitionism, forcing children to watch sexual acts and using obscene
language with children. 236 The Law Commission of India reviewed the laws related to child
sexual abuse and recommended amendments to the Indian Penal Code in its 172nd report. 237
The report suggests substituting the offence of rape with the broader offence of ‘sexual
235 Goa Children’s Act 2003, Part 2 (y) (iii)
236 Goa Children’s Act 2003, Part 2 (y) (ii)
237 Kathmandu School of Law, Terre des hommes Lausanne, European Commission and SALS Forum, 2007,
‘Regional study for the harmonisation of anti-trafficking legal framework in Bangladesh, India and Nepal with
international standards’, Kathmandu, KSL.
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