In 2018, India heard a few of its politicians – Rajeev Chandrashekhar, Shaina NC and Rajendra Agarwal, calling for penalization of customers of child prostitution in India. What may seem obvious to all – that if a person has sex with a child, with or without money, should be considered a crime and should be prosecuted for it, is not – in fact – the reality in the country. Despite India having passed a specific law on sexual offences against children – Protection of Children from Sexual Offenses Act (POCSO, 2012), and number of POCSO cases rising across the country indicating that more and more cases of child sexual abuse getting reported and offenders getting prosecuted, the number of cases of ‘men/ women who sexually exploit children for a payment (child prostitution) remains abysmally low. 

Why is this? On investigation, the following was discovered:

• Law enforcement agencies do not have investigation or arrest strategies to identify sex offenders who look for children and minors for prostitution: Currently, the police’s actions on child prostitution is focused on rescue of victims. When it receives information about children and minors being prostituted, it either conducts a raid in the premises or plans an entrapment of brothel managers and pimps by planting a decoy, and then a raid in conducted to nab the brothel manager/ madam at the time of the transaction. Arrest or prosecution of sex offenders who solicit children for sex is not currently a mandate with the police in such operations. Even with the POCSO coming into force, there has not been any strategic level planning on how the mandate of the law – to criminalize sex offenders who sexually exploit children through prostitution – is to be implemented. There has been no report, articles or any question raised by activists on this point during the years. Vidya Reddy, whose work on child sexual abuse and the POSCO implementation is well known in India, speculates ‘sex offenders who pay to sexually exploit children has perhaps escaped the gaze of the prosecution or law enforcement because somehow, in our unconscious mind, the financial transaction is interpreted as consent’.

• Lack of investment in intelligence gathering on child prostitution: For most organized crimes and mafia monitoring, police gathers intelligence from multiple sources, including undercover agents and informers. The state of Telangana has recently constituted a task force in Hyderabad to monitor cybercrime, including online sexual exploitation of children. Over the last decade, with the advent of smart phones and internet technology, the need for red light districts has lessened, which used to serve the purpose of a physical marketplace for sex trade. With solicitation and procurement having moved online, sex work has moved to private residences, hotels and lodges. This has also made monitoring and vigilance much more difficult – nonprofit organizations like International Justice Mission, Justice and Care, Freedom Firm or Rescue Foundation who specialize on community vigilance to detect sexual exploitation of children and minors report that vigilance in a red light district is much easier than monitoring lodges, hotels or where children are being sexually exploited in private residences. The vigilance networks must monitor a larger area and must use different strategies to detect sexual exploitation of children. A senior police officer in Bangalore said ‘we know that there is prostitution in Bengaluru or the whole of Karnataka, as in any other state of India. But we do not monitor sex trade per se, and therefore we do not have any statistics, data or information on what part of that sex work involves children, minors or forces adults for sexual exploitation, and what part may be of voluntary sex workers. We only act when there is a specific report of a case, which is usually by a social organization working on the issue. They get us the intelligence’. He added that while they have a budget which could be used for any research, the decision on whether to use it for this issue or not is a decision between the state government and the chief of police of the state.

• Doubts about evidence: ‘Even if we were to arrest ‘customers’, how can we prove his crime?’ was the question asked by law enforcement chiefs in several states. ‘Even if we arrest customers during a raid, and that moment, there is a scurry where we don’t exactly find the sex offender in the act with the child or minor, what evidence should I gather?’. In cases of child sexual abuse or even rape, forensic evidence may be gathered shortly after the incident, but in the case of child prostitution, when the child is being rescued, she may have been prostituted with tens of men in a week. These doubts reflect lack of strategic planning by the law enforcement, research and the application of the mind to build strategy.

• Victims turn hostile, lack of rehabilitation support: Police officers and prosecutors from different states report that in most cases, victims turn hostile, and unless strongly supported by a service provider, their statements during trial are inconsistent with the facts of the case presented by the prosecution, and in some cases, this is deliberate because the victim may not wish to pursue with the prosecution of the accused. Police and prosecutors fear that even ‘customers’ are prosecuted, without strong material and circumstantial evidence, and a strong victim to withstand trial, prosecutions will fail, and it would be wasted efforts. Reasons for victims turning hostile include poor rehabilitation support, incarceration and forced institutionalization in shelter homes, lack of protection from threats and intimidation from offenders – and unless these are worked on seriously and urgently by the Women and Child Development offices, law enforcement efforts in deterrence through rescue and prosecution will never reach impact.

• No investigative journalism on the issue: Media research shows that reporting on child prostitution is restricted to covering news reports on rescue, or in the last year – focused on the trafficking bill. About sex offenders, there have been reports on accused in cases of rape, child sexual abuse – but never sex offenders who solicit children for prostitution

• Doubts over culpability of customers: A range of people, including police officers, activists and journalists feel that even if a person is found to be having paid sex with a minor – who may be 15 or 16, he may not be aware of her age. ‘He picks a girl or woman, and he may not even ask her age, or the girl may not tell him the truth’ – how can we be sure that he sexually exploited a child with full knowledge of her age? There are many assumptions about who these ‘customers’ are, are there people who specifically and knowingly solicit children and minors or are they opportunistic or even casual in their soliciting (that they may not care about age). There is acknowledgement, however, that there is a stronger demand for younger women or even ‘new women’ including virgins. 

• Research shows that ‘clients of prostitution’ comprises of (a) Habitual Offenders – people who specifically solicit children and minors, they would pay higher amounts for the same, and are not interested in adults to buy sex from. They are also the ones who would look for pre-pubescent children. Their orientation may be narrow and specific. (b) Opportunistic Offenders – people who may not specifically seek a minor but demands in the age group of 16 to 22. While they may not discriminate between a 17 or 19-year-old, they seek young people. (c) Casual Offenders: They may be people who seek prostitution but may have had sex with a minor not by demand. There is also a section of ‘customers’ who decidedly do not like to have sex with adolescents and children – prefer people in their twenties. Because there has not been any serious thinking through on the implementation of POCSO in prosecuting sex offenders prostituting children, these doubts remain un-clarified.

• Backlash: The demand for children and minors for prostitution comes from the wealthier, more powerful – and any action outing them, prosecuting them will create a backlash and without political support for the police to protect them from that backlash, it is unlikely that lower or mid-level police officers will take on such strategic risks. It would be interesting to see how the calls of the politicians in India in curbing demand for sexual exploitation of children will be responded to in coming months or years.

16-year-old Rahima (name changed to protect victim’s identity) had been trafficked at the age of 14 to a brothel in Pune. Two years later, she was rescued from the brothel by the Farazkhana police in 2017, wherein the police arrested and later prosecuted the brothel manager from whose custody Rahima had been rescued. In the investigation, the Investigating Officer focussed on gathering evidence against the accused brothel manager on how she had kept a minor in the brothel and held her in confinement and used her for prostitution. The investigation did not attempt at identification of customers who had had sex with Rahima in those who years. Neither the Public Prosecutor nor the magistrate in whose court this case pointed out the lapse in this investigation. When cases such as Rahima’s was stated as a lapse in investigation, senior police officers in Maharashtra police say that while POCSO clearly indicts customers, such investigations are complex, time and resource intensive and require skills that the current level of investigators do not have. Incidentally, Anti Human Trafficking Units, which are specialised law enforcement units created to investigate cases of human trafficking (including sexual exploitation of victims of trafficking) restricts its role only to rescue and leaves investigations to police officers from regular police stations. The Maharashtra police also pointed out that for adults, there is no law that indicts customers. So, for adult women who are trafficked and sexually exploited, neither the Immoral Traffic Prevention Act nor section 370 implicate customers who sexually exploit them. 

Young women and men from Chattisgarh who work in brick kilns in Maharashtra and Uttar Pradesh report sexual exploitation by contractors. Sunidhi and Afroz (names changed for protection of identity), were 17 and 19 had been forced into sex by contractors. When they tried to resist, they were threatened and subjugated. When they returned, they wanted to file cases against the contractors for trafficking and sexual exploitation – but the police told them that they could only prosecute the contractors under Bonded Labour Act in Uttar Pradesh and Maharashtra where they had been exploited. But the police did not consider prosecuting the accused for sexually exploiting Sunidhi using POCSO, which was an obvious relevance between the law and the crime. The possibility of using section 377 of the Indian Penal Code or laws on rape by male survivors of sexual exploitation is not even considered by the police.

What seems to be self-evident in this context, as way forward, are:

1. Clarification by all state governments to the police on the mandate of POCSO in prosecuting sex offenders of child prostitution.
2. Providing a budget to the police for intelligence gathering and building expertise in the system.
3. The police to develop a strategy for identification, arrest and prosecution of sex offenders of child prostitution.
4. Media to commission investigative pieces on demand for child prostitution. Turning the narrative to offenders instead of sticking to a victim-centric narrative.
5. The DWCDs revamping their rehabilitation strategies and policies, focus on individual support to survivors instead of incarcerating them in closed institutions.
6. Public prosecutors’ offices to invest in some expertise building on such cases.

Roop Sen is a researcher, facilitator, and an activist, who works on issues of gender-based violence and personal growth. He is a certified coach and a practitioner of behavioral sciences, and works with individuals, groups and organizations for growth and development.

Disclaimer: The article was first published on www.qrius.com