The Acquittal in Mumbai of Paedophilia Case Raises a Number of Questions.

The Freddy Peats case in Goa in 1991 first brought the term "paedophilia" into public discourse in this country. Since then, there has been acknowledgement, reluctantly though, that child sexual abuse (CSA) exists in our society whether within or outside the confines of the family, and steps have been taken to punish the offenders.

But now the Mumbai High Court has acquitted two Englishmen accused of sexually abusing boys in the shelter that they ran in the city. Their acquittal raises a number of questions about the legal and social complexities involved in dealing with child sexual abuse in general and paedophilia cases involving foreigners, in particular.

In 2006 the two men (Duncan Grant set up the shelter, Anchorage, in 1995 and Alan Waters was a frequent visitor) were sentenced to six years rigorous imprisonment by an additional sessions judge on charges of sexual abuse based on the evidence of five boys.

The high court while acquitting them noted that there were discrepancies between the statements made by two complainants before the police and in the court, that it was "unnatural" that the victims did not complain for several years, that the investigation had been done by the amicus curiae rather than by the police and that the prosecution had not been able to prove the guilt of the accused beyond a shadow of doubt.

Economic & Political Weekly (EPW)

These were street children who had nowhere to go to and the two men were the only caregivers they knew. The boys needed to muster up courage and confidence to complain against them. It is well known that walking out of an abusive environment is not an option for victims when the abusers are in a position of authority and provide care.

The boys in this case approached a journalist who lived in the neighbourhood of the shelter and was a familiar figure. The journalist later put them in touch with social activists.
After telling their story to the police first in 2001, the boys repeated their testimony in court after a gap of some years, which may have led to differences in the two testimonies.

Standing up in court against their "benefactors" and facing relentless cross-examination would have been a situation fraught with fear and trauma. Even in the case of Freddy Peats, it was journalist Sheela Barse who filed a high court writ against incompetent police investigation, leading to the Central Bureau of Investigation taking over the case.

Foolproof police investigations that make a solid case for the prosecution have never been a strong point in instances of paedophilia involving foreigners. Wilhelm Marty and his wife Loshiar Lily Marty were caught by the Mumbai police in December 2000 while they were in the act of recording pornographic acts involving two small girls. In the presence of the nongovernmental organisation volunteers accompanying the police, Wilhelm Marty kept taunting the police about how easy it was to buy "corrupt Indians".

Whether it is in tourist destinations or in towns with a large population of homeless children and impoverished families, foreign paedophiles find that the lure of gifts, good food and shelter is irresistible.

Society’s indifference to the plight of these children and the lack of adequate provisions in the law to deal with this form of abuse only add to the problem. The Indian Penal Code (IPC) does not recognise CSA and therefore offences under this category are usually charged under section 376 (rape), section 354 (assault or use of criminal force to outrage the modesty of a woman), section 373 (buying a minor for purpose of prostitution) and section 377 (unnatural offences), the last being the most used.

The Juvenile Justice Act 2000 too does not recognise this offence. The Offences Against Children Bill, 2005 is still with the union law ministry awaiting its approval for consideration of the union cabinet. Goa is the only state in the country to have a law (the Goa Children’s Act 2003) addressing the issues of CSA in general as well as tourism-related paedophilia. It makes CSA a non-bailable offence with severe fines and jail terms, prescribes the setting up of a children’s court to try all offences against children and makes different sections of society (hotel keepers, cyber café owners, photographers among others) responsible for the protection of the child against abuse.

There is need for a central legislation that will look at this form of abuse from the perspective of the child victim, but, more mportantly, systems need to be put in place whereby awareness about CSA is created, the impoverished victims feel confident about finding help and understanding, and state and society at large feel accountable for the safety of child citizens. We owe this to our children

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