Laws related to abuse in India, Ireland also discuss statute of limitation in Ireland, New York,

and India. Historical abuse and statute of limitation.

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Historical Abuse and the statues of limitations:

What is statute of limitation?

Statute of limitations means a statue describing a certain time period after which no action
cannot be taken against an act committed1, the act can be addressed under civil law or
criminal law. Generally the time period is decided based on the nature of the offense and in
most cases it’s different for different classes of acts committed by the person.

We would like to discuss the statute of limitations in the light of abuse and child abuse and
further discuss the statute of limitations and laws related to abuse in India and other foreign
Jurisdictions.

What is historical abuse?

Historical abuse means the time between the action committed by the perpetrator and the
filing a complaint with the legitimate authorities has not happened in the recent past of the
aggrieved, it may have took place when the complainant was a minor or underage or not
mature enough to comprehend the nature of the perpetrators actions and when the victim
come of age to comprehend the actions they can file a complainant with the respective

1
CHRISTINA MAJASKI, Aug 29, 2020, Statute of Limitations,
authorities regarding the act which was committed on them or with them. This rule is relevant
in criminal as well as civil suits.
Statute of Limitation:

First let us take a look at statute of limitation under Irish Law and what all provisions are
given under it.

Under the Irish law regarding the laws of limitation it is covered under several act, namely
the Statute of Limitations 1957, the Statute of Limitations (Amendment) Act 1991, and the
Statute of Limitations (Amendment) Act 2000 2 the statute has been amended on numerous
occasions to fit in accordance with the changing needs of the people and change in legislature
with change in time. These laws and statutes deal with the limitation of filing a complaint
after the act has occurred.

Further moving on to specific provisions of the act which deal with the issue are section 11(2)
this provision deals with the acts which fall under the classification of tort or tortious liability.
The section 11(2) of the Irish law says that an action which is identified as a tortious action is
to brought in front of the competent court in the span of six years.

Going into the finer details of the legislation we can further infer that in regards to actions
like breach of duty, negligence, nuisance the period prescribed under the Irish law of
limitation is two years from the date of accrual or from the date of knowledge of the act
which the aggrieved party is made aware of at a later date from the date of accrual of the
action. Further the original legislation of 1957 also provides for the postponement of
limitation period from which we can infer that whenever there arises a situation where the
victim is not of a mature age or is not able to comprehend the actions of the perpetrator
because of lack of understanding due to their age there can be a postponement of the
limitation period, also the act provides for the people of unsound mind and those who are
clinically declared insane.

Now let us take a look at the statute of limitation in the Indian context.

In the Indian context the period of limitation in the regard of a minor is termed as legal
disability in the legislation. The specifics of this are covered under section 6 (1) of the
limitation act,

“Where a person entitled to institute a suit or make an application for the execution of a
decree is, at the time from which the prescribed period is to be reckoned, a minor or insane,

2
The Statute of Limitations 1957 has also been amended on a number of occasions by other legislation, such as
the Civil Liability Act 1961, the Civil Liability and Courts Act 2004, and the Defamation Act 2009
or an idiot, he may institute the suit or make the application within the same period after the
disability has ceased, as would otherwise have been allowed from the time specified therefor
in the third column of the Schedule.”3

Thus according to this section there is no specific time period mentioned but there conditions
laid down in the legislation regarding the filing of the suit by a minor or and insane person.

Further is section 8 of the act there is mention of special circumstances where a suit can be
filed in lieu of special circumstances.

“Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall

be deemed to extend, for more than three years from the cessation of the disability or the
death of the person affected thereby, the period of limitation for any suit or application.”4

In this provision the legislators have kept the needs of the aggrieved in mind and provided to
accommodate the grievance of the victim even after the cessation of the legal or physical
disability.

From this we can infer that there is no concrete or fixed time period laid down by the Indian
legislators in terms of the act being tortious in nature or civil or criminal in nature. However
they have accommodated it in lieu of special circumstances where the suit can be initiated in
the court after a time period of three yeas even after the end of the time period of the
disability. Whereas in Irish law it is more codified and more specific according to the
classification of the act.

Now let us take a look at a real world practical example of the statute of limitation is the
recent legislation enacted in by the New York governor which made and amendment in the
child victims act, the purpose of this legislative amendment was to extend the age limitation
of the child victim from the age of 23 to 28 so after the enactment of this legislation the
victims of child abuse can file a suit against the perpetrator till they are 28 years of age and
they have been made aware of the actions committed in them or with them when they were
minor and not able to comprehend the actions of the perpetrators. The age limit in the case of
civil suits was also increased to 55 years of age.

3
Section 6(1) limitation act
4
Section 8 limitation act
Comparison of abuse laws in different countries:

In India the Protection Of Children from Sexual Offences (POCSO) act which was enacted in
the year 2012 is the main source of legislation against the sexual offence committed on legal
minors and children. The POCSO act is designed to protect children against child sexual
abuse and to curb and out an end to child pornography in the country. The act is gender
neutral in nature which means it deals with the victims regardless of the gender of the victim
and there is no discrimination between the victims. Also one very interesting feature of the
act is that the approach of the act towards the accused is guilty until proven innocent 5 this
approach of the legislation is very different from the other legislations as under other
legislations the accused is considered innocent until proven guilty. Another important feature
of the act is that if a person files a complainant with the wrong intentions or with malicious
intent then the act provides for punishment against the complainant.

Even though the act from an overview looks like a perfect legislation there are a lot of
discrepancies present in the legislation which arise when the practical applications of the act
are looked into. Such as; the act does not cover a sexual act between the two minors of less
than 18 years of age. There are no provisions related to that issue and if such an act is to
occur the law has no remedy to deal with it. If we are to look into the technicality of the
matter both the male and the female engaged in the act are supposed to be put under the
Children in need of Care and Protection (CNCP) and Children in Conflict with the Law
(CCls) but when such an act takes place the female co-accused is put under CNCP whereas
the male co-accused is put under CCL whereas both the co-accused are supposed to be put
under both CNCP and CCL.

Similar to rape laws the act does not anticipate the possibility of a woman committing sexual
act or sexual abuse on the other or the person of same sex. And the term “he” is
predominantly used throughout the act thus negating the possibility of a sexual act committed
by a woman forcefully without the consent of the latter.

These are some of the very noteworthy loopholes in the law which make it prone to criticism
on gender bias and sexual disparity.

Now let us examine the laws and legislations related to child abuse in Ireland.

5
Mayank Tiwari, critical analysis of India’s POCSO act 2012, 8 may 2020
The laws which deal with child abuse in Ireland is the Children first act of 2015.

The children first act was enacted in the year 2015 by the Irish legislators in order to curb the
rampant child trafficking, child abuse and child pornography taking place in Ireland.

The children first act of 2015 recently amended its provisions in order to ease the reporting
the crime and facilitate the executionary bodies. To facilitate them now organisations which
are providing any type of service to the children required to register themselves and are
supposed to report to the TULSA child and family agency which is set up by the state in
order the further the interests of the children.6

Also all the services are to be set up in accordance of the national vetting beureau of 2012
and 2016 and the chuld care act of 1991.

6
https://www.mondaq.com/ireland/industry-updates-analysis/656346/the-children-first-act-2015-
implications-for-your-organisation
Analysis of the statues of limitations and the child abuse legislations:

From the above given information on the various legislations in different jurisdictions some
key take always for the Indian legislators is that our laws are to be restructured in such a
manner that they are more accommodating in nature and also keep the main aim of goals of
justice being met and the principles of natural justice are being followed.

The legislations present in India on Limitations and Child abuse if are interpreted in together
in a practical scenario then we can infer that even after the application of the section 8 of the
limitation act which is an addition of three years’ time period more on the standard time
allotted in the act. Now let us consider an ideal scenario where the minor on whom an act of
sexual abuse is committed and the victim when comes of age or matures into a legal major
files a complaint in the court, this is not the case with most of the victims since the victims at
the commission of the act were not mature enough to understand the actions of the abuser and
in many scenarios the act of the abuser are gone unnoticed as the victims do not think of the
act in such a manner. There are also cases where the abuser is a family member of the victim
and also there arise familial complications while bringing the circumstance in front of the
court as it would lead to maligning of the family name and reputation.

Some people file suit in the court just in order to malign the reputation of the latter in the
society due to reasons that suit them or for mongering attention. The act has a very good
feature for such instances and also the legislation provides for punishing such an act which is
a feature that empowers the falsely accused and punishes the wrongdoer. But the safe guards
regarding false complaints filed should be tightened and stricter provisions should be added
in order to curb this practice as it also wastes the time of the judiciary.

Majority of the provision are not gender neutral and targeted at men and when the practicality
of these provisions is put to test we can see observe that there are scenarios where the abuser
is a woman and when such a circumstance comes before the court the female abuser goes
unpunished or either is served a lesser sentence compared to the male abuser and the ends of
justice are not met in a proper manner and subsequently a victimised citizen loses faith in the
judiciary. Further this creates a disparity between the abusers and it is also in violation of the
article which guarantees the right to equality under the constitution.

I would like to conclude my analysis by saying that the current law needs to be amended in
order to further the best interests of attaining justice and also the to further the best interests
of the masses. The law also needs to change with the upcoming change in generation and
there more laws to be developed in the regards of abuse in the internet age and there
safeguards which are supposed to be laid in order to protect the children of the internet age.