Don't just see, but also hear the child who dances
- Dr. Arshiya Sethi
January 6, 2022
Almost 6 months ago I was invited to do a prevention of sexual harassment (POSH) training, online, by a dance school. It had many below 18-year-old students. In the course of the training, I referred to the POCSO laws and was surprised by the fact that not one in the group was aware of these laws, although more than 50% of the school's students were under 18 years in age. I realised that this was a big lacuna. We always talk about catching them young in the arts since the process of artistic training is long drawn, but we seemed clueless about a mandatory law about protecting young people, or our responsibilities as adults, under it. That moment, which I have carried since, and which has only been reinforced by the many conversations I have had with the staff and founders of other dance schools, makes this column a critical addition to the discourse we have created around Arts and the Law.
Now, if you don't live under a rock, or on Mars, and have been following the news this year, you may have come across a story of a judicial judgement, made famous, or rather infamous as the "skin to skin" judgement. In January 2021, an acting Justice, on the Nagpur bench of the Bombay High Court, had set aside the conviction of a man, who had been found guilty under the POCSO Act for groping a 12-year-old girl, some years ago. The court took this position because it felt that there had been no skin to skin contact, as the child was clothed throughout, during the action. "Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e., skin to skin with sexual intent without penetration," the court observed on January 19.
The judgement caused an uproar among child activists and civil society, and the judgeship of the acting judge, who was not elevated as was being expected. The matter was moved to the Supreme Court. In November 2021, eventually, the Supreme Court set aside a verdict of the Bombay High Court, saying that the most important ingredient in convicting sexual offenders under POCSO Act is "sexual intent and not skin-to-skin contact."
What is this POCSO Act and why is this relevant to us, the dance community? POCSO is the acronym for Protection of Children from Sexual Offences. The Act was passed in 2012. The Ministry of Women and Child Development championed the cause of the Bill to effectively address the heinous crimes of sexual abuse and sexual exploitation of children, through more stringent legal provisions, than those which already existed. One of its purposes also was to remove some ambiguity around the law and some caused by dubious interpretations, like the one I opened with.
The passage of this Law made India's pro child provisions very much stronger. In fact, according to the World Health Organisation globally, it is estimated that up to 1 billion children aged 2-17 years, have experienced physical, sexual, or emotional violence or neglect in the past year. We know from experience and many psychological studies that children who suffer abuse, of any kind, carry lifelong scars. And yet child abuse can easily be prevented if we follow the laws studiously and look out for the safety and security of children. In fact, that is a duty all adults have.
The WHO has always maintained that prevention is possible and a good route to take. Under the leadership of WHO, a group of 10 international agencies developed and endorsed an evidence-based technical package called "INSPIRE: Seven strategies for ending violence against children". The package aims to help countries and communities achieve SDG Target Goal-16.2, on ending violence against children. Each letter of the word INSPIRE stands for one of the strategies, and the first letter itself, 'I', refers to implementation and enforcement of laws.
This is what India was aiming at, when India strengthened its laws in 2012 by creating a special set of laws in addition to these that already existed under the IPC and CrPC. The Report of the 2019 Economist Intelligence Unit, the world leader in global business intelligence, while examining the responses of over three score countries to child abuse revealed some interesting insights. It rated India's legal framework for protecting children from sexual abuse and exploitation as the highest among all the surveyed countries. On this metric, India outranked even the top three countries considered to have the best environment for children, namely United Kingdom, Sweden, and Australia. But we know that the on-ground situation is not so encouraging and child abuse is a pressing human right issue and public health concern.
Children under the age of 18 constitute 37% of India's population. The Ministry of Women and Child released in 2007 the results of a nationwide survey on Child Abuse. Of the 12,500 children who participated across 13 states, more than 53% had admitted to sexual abuse. Over 20% admitted to severe sexual abuse. Those abused included boys and girls, with the number of boys exceeding the number of girls abused.
In another series of studies it was found that Child Sexual Abuse (CSA) is a multifaceted phenomenon predicated in the interplay between individual, family, community, and societal factors. The patriarchal societal norms and power differentials in such societies based on class, gender, and sexual preferences, emerged as common descriptive themes that increased the risks of CSA. The critical points to note are that of the power differential and the prevalence of patriarchy. These two factors need to be looked at with care when we think of CSA in the context of Dance and the need for dance organisations to be aware of POCSO Laws.
Before going on to talk about what the POSCO Law says and how it is particularly relevant to our dance community, let us spare a moment to understand the type of abuse that children face. Types of abuse first. Broadly there are six types- maltreatment, bullying, youth violence, domestic violence, emotional mistreatment and sexual abuse. Neglect is a good example of maltreatment. Bullying by seniors is well known. Youth violence is the sort of sudden violence that breaks out between gangs. Even ragging is an example of such youth violence. Domestic violence against children happens in dysfunctional families. It also commonly occurs against girls within child marriages and early/forced marriages. Emotional violence includes forms of psychological violence, restricting a child's movements, denigration, ridicule, threats and intimidation, discrimination, rejection and other non-physical forms of hostile treatment. Sexual violence includes non-consensual sexual contact and acts of a sexual nature, which may or may not involve contact. Examples of those acts that don't involve contact include voyeurism, online exploitation and the making of porn or nudity videos. In extreme cases it also includes acts of sexual trafficking. Because it is a child who is involved, the idea of consent doesn't arise and there is every possibility that they may be unable to refuse.
The last two points particularly, are my central concerns about the safety of children in the domain of dance. Dance, the way it is taught in India, involves power differentials. Imagine the Guru, who the student can never question, who is greeted every day with a ritual of submission. A ritual of touching the feet that reinforces the verticality of their relationship when the Guru is on top. A Guru hired only because of a family lineage, artistic skill, or recommendations. Whose antecedents may be unknown and whose past may reveal unpleasant truths! When the voice of the Guru is strengthened but that of the child is weakened, by the absence of a frank speakeasy arrangement when the child can put forth his view? In case of a conflict, a possible abrogation of privilege, a charge of abuse, what are the chances that the minimised child will even be able to explain what happened, will even have the vocabulary to try and put in words a horrific experience? And even if they manage, who will be heard and who will be silenced? What measures exist to allow any correction to power and patriarchy?
This is not the only chink. What about other students - senior students - who may be majors or even minors? In an open setting of a mixed age dance school, how can one protect the minors from deviant seniors? Dance schools further involve touching, lifting, ensemble formations, correction of poses and postures. How can one ensure that the touch is always good? What about other staff in the dance school, cleaners, guards, office staff? And vendors and temporary staff or occasional visitors. If you are running a dance school, answer sincerely about how many background checks you do about people you are hiring. When you look at a CV, how do you know that it is sincere and correct? Do you get suspicious when you see unexplained gaps? Why are they there? In my opinion, detailed background checks are essential. No need to mince words here. The child who dances, and learns at a school must be protected from all possible predators or miscreants, and it is astounding how little regulation there is in dance schools.
What happens if one encounters such a situation? I have yet to come across a school that had anticipated it and had put into effect a standard operating procedure to deal with such a situation. First there would be silence for long. Then when the truth would come out the matter would be met with disbelief. Before long people start speaking up for the perpetrator, appealing to take a mild position otherwise so much shame would be brought on to the institution, or a young person's career will be destroyed. As a compromise, the person is asked to leave very quietly, and after a break the person takes up a job somewhere else. But that is not how it should have happened. What was committed was a crime. The appellant is an enabler. What you did in keeping quiet about it is what constitutes being complicit. The POCSO Law sanctions punishment for all three.
I am equally disturbed about the content that child dancers are taught. Is there an age-appropriate syllabus? I fear not. Take the case of Kathak. How many Kaliya pieces, makhanchori pieces and gop baal pieces exist? Sooner rather than later, some 'chhed chhad', 'matki phodna', 'dupatta kheenchna' pieces will enter their repertoire. What is the message that gets sent? Subtle sanctioning of stalking, predatory behaviour, and a disregard for consent. These messages are abhorrent. In the long run, all this constitutes a set of very disturbing messages to send out to young persons, with as yet unformed ethics and ideas. More so a young man, born to privilege and gender superiority, given that each Indian mother frequently refers to her son as her Krishna!
Let us now look at what the POSCO law says specifically. In the very first instance the POCSO Act is gender neutral and takes cognisance if sexual crimes are committed against all children under the age of 18. The POCSO Act ensures punishment for all perpetrators, irrespective of age, gender, community or category.
Secondly, the POCSO Act recognises the very intent to commit an offence. The very intent, irrespective of whether successful or not is enough of a reason to be penalised. Therefore, the number of cases of child sexual abuse under the POCSO Act has increased in numbers. The penalty of those acts that were intended, even if unsuccessful is half the punishment prescribed for the commission of the act. The act also provides for punishment to those who abetted the crime, to the degree of the crime committed.
What makes POCSO Act special is that it asks us to trust our children. The burden of proof lies squarely on the shoulders of the accused. By this is meant that it is the accused, who has to prove his/her innocence, as the special court will presume that the person has committed the crime, unless the contrary is proved. The law ensures that the pressure is not on the child to prove that the crime took place. This is in keeping with the innocence of children and their greater vulnerability. Yet, to prevent misuse of the law, punishment is prescribed for false accusation, though this punishment is a small one (only 6 months). If the false complaint is made against another child, then the punishment is for a year.
In many ways the POCSO Act terms and the Juvenile Justice Act terms coalesce. For instance, on the information of the local police or the Special Juvenile Protection Unit, the Child Welfare Committee (CWC) kicks in and within 24 hours take steps if the child is in need of special care and protection. In fact, the POCSO act identifies three conditions in which a child must be produced before the CWC. These conditions include a reasonable apprehension that the crime has been, or is likely to be committed, if the child is without parental support or the child is found to be without any home or parental support.
In a broad reading of the terms cited above it would appear that these conditions point to a domestic situation. But the abuse of a child can happen also in places where the child is unaccompanied by any adult that he or she trusts. In fact, implicit in the situation is the occurrence of child abuse even by a person that the child trusts. That is abuse of power and that is when our concern about protecting children in a dance class comes to the forefront.
We are aware of the fact that we enrol young children into dance and music schools, but I have never met a parent who has checked the safety credentials of the school. Whether the school is aware of Child Abuse? Note that I am only saying Child abuse here, not Child Sexual Abuse. What measures do they have to prevent child abuse? For instance, do they have security cameras? Are all spaces a child is likely to visit, covered by those cameras? Do they have surprise visits and checks? What standard operating procedures are in place for keeping a check on any such possibilities? What due diligence and background check is done when hiring staff in the arts school? In order to make it more effective in dealing with cases of child sex abuse in the country, the POCSO Act was amended in 2019. The Act was notified on 6 August 2019, and went into effect from 16 August 2019. Important elements that were added in the new rules included the provision of mandatory police verification of staff in schools and care homes, procedures to report sexual abuse material (pornography), imparting age-appropriate child rights education among others. So, you are perfectly within your rights as a parent to check on this. You are well within your rights to dig deep. Find out if there has ever been something approximating child abuse in the past and if so, how was it handled? This is a trick question. Any attempt at pushing the matter under the carpet, would indicate much about the prevailing attitude.
The prevailing attitude on issues of child abuse to say nothing of child sexual abuse, is governed by the strong taboo against any disruptive discussion, especially a discussion about children, because there is a tendency to believe adults over children. Often cases of violence or violation are neglected by the family who can't believe that an adult, especially an adult of the family could do such a thing. Then to safeguard the honour of the family, or in the case of a art school, of the institution itself, it is assumed that the child is lying or doesn't have the sense about what he is reporting. In any case, children are often told off when they talk about other adults! Honour lies anywhere but not in the words or body of the child!
Further, it is taboo to discuss sex and sexuality. This is by far the most pervasive reason why children become the victim of sexual abuse. If there is reluctance to talk about sex, sexual acts, and sexual predators, then the child is unprepared, lacking in knowledge and at risk. If for instance, an institution does not have POSH guidelines in place, replete with training which would need to be staggered age appropriately, then that is a red flag. As parents you are responsible for your child/ ward. Please ask uncomfortable questions from the arts school, about how it will ensure the safety of your child. If the school takes umbrage at your questions, then my advice would be to take action by writing to the local child protection office, or an NGO working in the field of child rights.
I hope things don't have to reach such a pass and that the parent and school both realise their joint responsibility to keep our children safe. But parents can go the extra mile to do their own due diligence. Read very carefully the admission form. Should it be fast absolving itself of responsibilities in that direction, then maybe it is not the place for your child. It is my heart's deepest desire that any dance or music school has as part of its annual compliances for permission to function, needs to give affidavits to this effect. And one bit of information I want to share is swallow your hesitancy and talk to your child about abuse, good touch and bad, and ensure that there is an open relationship between the two of you, so that at the very first point of trouble, you are made aware of it.
Regrettably, in India there is a strong proclivity towards gender-based violence. Children and women are considered fair game for control, if they cross their morality limits. This has to be stopped immediately as a prevailing idea. Each person has individual sanctity, and agency. No one has the right to dominate another. No one has a right to employ illegal means to set people right. Trivialising of human rights will no longer be tolerated in the interest of a just world.
I am sure you have heard the word enabler. In the context of this article, it refers to someone who enables nefarious activities. If you help the abrogation to happen, then you are an enabler. Another word that you hear in such contexts is complicit. If you stay quiet while an abrogation happens, then you are complicit. The POCSO Act considers enablers and complicit people criminal and has penalties in place. So, be extra alert and speak up for the child. We already know from the fast turnaround by the apex court on the 'Skin to skin' controversy, that the judicial mind is entirely pro child.
Dr. Arshiya Sethi, trained in Kathak, has served as dance critic, commentator, institution builder for the arts, having created both tangible and intangible institutions and equities. She has been a Fulbright Arts Fellow (2003-2004) and a post doctoral Fulbright (2016-2017). Her doctoral work has been on the link between politics and dance in the case of Sattriya. She is presently working on the intersection of dance and activism / social justice through her NGO, Kri Foundation (estd. 2003), and has extended her academic work to Indian dance in the diaspora. She is a Co-Founder, Unmute.help.
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