Protecting Children from Sexual Exploitation

12 October 2019

40% of trafficked persons are minors below the age of 181. This makes the need for action urgent and imperative. Trafficking often leads to the commercial sexual exploitation of victims carried out by both, people who have trafficked the person, and by customers who avail sexual services from these trafficked persons.

Indian legislations such as the Immoral Traffic (Prevention) Act of 1956 (ITPA), the Protection of Children from Sexual Offences Act of 2012 (POCSO) and the Indian Penal Code of 1860 (IPC) protect children from violence and exploitation (both physical and sexual). These legislations consist of provisions that criminalise any person exploiting a minor for commercial sexual exploitation.

Regrettably, the term 'customer' or a person availing sexual services from a minor has not been mentioned in any of these acts. Minors who are exploited for sex commercially, are subjected to frequent victimisation with the same or multiple customers. Due to the lack of an explicit penal provision and the ambiguity of interpretation of existing provisions and their application, customers are left outside the sphere of offenders and often escape the crime. Whereas, within the equation of demand and supply of trafficking of minors, customers play a major role in the commercial sexual exploitation of minors.

On 12 October 2019 IJM, hosted a “National Consultation on Deterring Demand for Commercial Sexual Exploitation (CSE) of Children”, to initiate discussion on why and how a customer should be brought under the ambit of the law; the application and correct interpretation of existing legislation and the need for new provisions within them, and other possible approaches to arrest customers of CSE in India.

The event succeeded in getting multiple influential stakeholders from across the country on the same platform. Esteemed judges, advocates and members of the judiciary, high-ranking law enforcement officers, respected academia (we had representation from 3 National Law Universities), and key social sector professionals all agreed that it is the customer who is at the centre of demand and that it is their collective responsibility to combat commercial sexual exploitation of children in every way possible.

Retired Justice Roshan Dalvi of the Bombay High Court addressed the gathering with conviction when she said “Let’s be clear. This is an organized crime and we too must be organized if we want to fight it. In spite of the years of knowing the realities of this crime I am still appalled that there are those who willingly manipulate and violently abuse innocent children. Customers must not be excused from the repercussions of their crime.”

The Chief Moderator at the Consultation, Hon’ble Dr. Justice Kaushal J. Thaker, Judge High Court of Allahabad, said, “Stringent laws and their implementation are succeeding at combating the supply side of the crime of sexual exploitation of minors. As a fraternity, if we want to protect the children of our nation, it is vital that we now evaluate the demand generated by customers and the complexities around how to prosecute them.”

“To truly bring an end to the commercial sexual exploitation of children, our approach has to be more aggressive when prosecuting all perpetrators, including the customers who are the origin of the crime.” emphasised, Mr. Mahesh Bhagwat IPS, Commissioner of Police, Rachakonda, Telangana State.

"It is the need of the hour for the laws to be strict and highly deterring of this organised crime. We don't have a specific clear provision in our current legislation to be able to prosecute customers. Why leave scope for interpretation to the courts and advocates? Clear laws will allow courts to prosecute customers without ambiguity or delay. Let’s shift the burden of proof from the victim to the customers and the accused." said, Mr. Ashutosh Kulkarni, Advocate, High Court of Bombay

Dr. PM Nair IPS (Retd), Chairperson, Centre of Excellence and Centre of Research and Learning (CORAL) on the Safety of Women and Children, and the CORAL on Trafficking of Indian Police Foundation, was emphatic in his belief that, “The customer is the Kingpin. The creator, perpetuator and sustainer of the demand of trafficking and commercial sexual exploitation. Let's move on to customer-focused investigation, independent of the victim. Courts and State legislators must find ways to make customers accountable if we want to aggressively address trafficking.”

“Although the existing laws criminalise any customer who avails sexual services from a minor, the ambiguity in the application of these legislations often means that customers are left unpunished. By addressing the challenges faced by law enforcement and judiciary in arresting and convicting customers, looking for possible solutions and initiating reformative measures, we can ensure that customers are held accountable for their crime, thereby creating deterrence and the end of demand.” added Ms. Melissa Walavalkar, Director of Operations, International Justice Mission, Mumbai.

Read about the National Consultation in The Hindu

Source:  1 - Akashi Ganguly Thukral Et Al., Child Trafficking in India (HAQ, Centre for Child Rights) (2016) ISBN no. 978-93-83807-07-9