Child porn: An emerging threat

Today is World Anti-Trafficking Day

Devika (name changed) is like any other sprightly 13-year-old in a tribal village, attending school and playing with friends. The Covid-19 pandemic completely changed her life - her parents lost their means of livelihood, family income shrunk and her classes too stopped, forcing her to look after her younger siblings.

During this hardship, a person approached Devika’s father with the promise of quick money. The proposal was simple, that the child would have to undress in front of a camera within closed doors and earn money instantly and no one would even get a wind of it.

The family with neither a ration card nor an Aadhaar card was deprived of benefits of subsidised food grains and were finding it difficult to even have two square meals a day. Driven by desperation, Devika’s father reluctantly agreed and made his daughter obey his instructions. The child, mentally shattered and visibly distraught, was left with little option but to do as her father said.

Virtually clueless about the power and reach of the internet, the girl began recording for the camera whenever she was asked to do so. Devika and her father were completely oblivious of the fact that her videos were seen worldwide by millions looking for child pornography online that not only disclosed her identity by showing her innocent face but also her body on which only she has the right.

This case is a classic example of online pornography where sexually explicit video of a child is made and streamed on online platforms. This act gets covered under Sections 13, 14 and 15 of the Protection of Children from Sexual Offences (Pocso) Act, 2012 and under Section 67 B of the Information Technology (Amendment) Act, 2008. But is this also a case of trafficking? Well, according to the current law, which is Section 370 of Indian Penal Code (IPC), it is not.

The new anti-trafficking bill, likely to be introduced by the government in Parliament, covers this kind of online sexual exploitation under the offence of trafficking and thus plugs one of the gaps in the present legal regime dealing with trafficking in our country. Both the definition of the term ‘sexual exploitation’ and the ‘offence of trafficking’ explicitly include pornography.

Let us now understand as to how effectively acts as described in the story above are covered in the Bill. For the crime of trafficking to be complete, three elements are required. First is the act itself which means recruiting or transporting or transferring a potential victim. Second is the means used by trafficker to carry out the act, which could be use of power, threat, coercion, deception, inducement or abduction. The third element is the exploitation, which is the main objective behind
the act.

Exploitation can be physical, sexual or even removal of organs of the victim. In this case, all the three elements are present— the trafficker recruited the victim for doing a certain work, establishing presence of first element, he then used the means of inducement wherein payments were given to the family thereby establishing presence of second element, and the third element of exploitation was clearly present as her sexually explicit pictures were shown online. Pornography or any kind of child sexual abuse material is covered under the definition of sexual exploitation in the Bill. Consent of the victim is immaterial in case of trafficking irrespective of the fact whether the victim is a child or an adult.

A significant provision in the Bill makes even the ‘means’ used by traffickers immaterial when the victim is a child, this stringent provision reflects determination of the state to protect children from all kinds of abuse. Further, if the child victim is below 12 years of age, then the punishment can go up to imprisonment for life and on subsequent conviction, it can be death penalty.

If, in this case, the trafficker had taken the girl to a different house then under the Bill such house or property can be attached and forfeited. The proceeds of crime are also not spared under the Bill. The proceeds of crime in terms of property irrespective of whether the trafficker owns it or possesses it or otherwise acquires it, is also liable to be attached or forfeited.

The Bill also provides for rigorous punishment for intermediaries if they publish pornographic material online or do not report the hosting of such material to the police as soon as it comes to their notice. The intermediaries include those entities that store or transmit data on behalf of other persons such as internet or telecom service providers, online marketplaces and social media platforms.

And finally, as under the Pocso Act, the burden of proof is reversed in case of children, women and physically or mentally disabled persons, implying offender is presumed to be guilty until proven innocent.

Online trafficking is an emerging threat and is on the rise due to people moving towards digital technology owing to the pandemic. According to the latest Trafficking in Persons Report, 2021 (USA), there is 95% rise in online searches for child sexual abuse material in India. India ranks very high for search of such material with a total of 11.6% of global online searches being done from India. The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021, reiterates the commitment of the government to protect its citizens especially children from the organised crime of human trafficking. Once passed by Parliament, the new law is expected to act as a strong deterrent for the traffickers. Over 12 lakh people had marched across 22 states and 12,000 km demanding the anti-trafficking bill along with Nobel awardee Kailash Satyarthi in 2017.

(The writer is Executive Director, Kailash Satyarthi Children’s Foundation)