Above: Illustration by Anthony Lawrence
Though a court in Odisha set an example by sentencing to death a man who raped and murdered a girl, much remains to be done under the amended POCSO Act to make our children safe again
By Ramesh Menon
Recently, a special court in Odisha sentenced a 22-year-old man to death for raping, murdering and then again raping a 13-year-old girl in January. She was dragged to a forested area where she was assaulted and her head crushed with a stone. This was the first death sentence in the state under the Protection of Children from Sexual Offences (POCSO) Act.
Children have increasingly become targets of sexual predators all over India, horrifying parents and law enforcers. However, there was a glimmer of hope when the Supreme Court recently ordered that special courts should be set up in every state to try sexual offences against children. It asked for the setting up of a centrally funded designated court in every district that has more than 100 FIRs under the POCSO Act. A bench headed by Chief Justice Ranjan Gogoi said these special courts should be set up within 60 days. The bench, that also had Justices Deepak Gupta and Aniruddha Bose, said presiding officers, special public prosecutors and support persons should be appointed. They must be oriented towards child rights, be sensitive to the needs of children, be child-friendly and dedicated to the cause.
The Court said that one of the major hindrances in the timely tackling of such cases was the delay in getting forensic science laboratory (FSL) reports. Often, offenders got away as there was lack of evidence when the case was being heard. The Court wanted designated FSLs to be set up in every district of the country. This was also a suggestion by amicus curiae V Giri, a senior advocate, who presented a report to the Court on the status of cases related to sexual offences against children. For the moment, the existing FSLs must ensure that they function in an effective manner and that analysis of samples that come under POCSO are promptly dealt with, the Court said. It also directed chief secretaries of states to ensure that these directions were followed. It suggested that a short film that could create awareness about child abuse, its prevention and likely prosecution of the crime be screened in theatres and telecast by TV channels at regular intervals.
The recent passing of the amended POCSO Act by the Rajya Sabha, which provides for the death penalty for aggravated sexual assaults against children, is another move by the government to crack down on offenders.
Women and Child Development Minister Smriti Irani told Parliament that the government intends to set up 1,023 fast-track courts to deal with pending POCSO Act cases.
Kavya Menon, co-founder and trustee, Aware India, told India Legal: “Even though we have good laws and the courts are proactive on the issue, it is far more important to prevent crime than wait for justice and retribution. This is important because the trauma of abuse is real and deep. We want to create a set of alert and empathetic children and adults. Child sexual abuse is an epidemic affecting all sections of society. There is no shame in accepting this, but the real shame lies in denying that it exists and not wanting to talk about it. Preparation is the best way of prevention.”
Cases of child rape in India are shocking. Last year, for seven months 17 men gang raped an 11-year-old girl in Chennai. They filmed the acts to blackmail her. Among the accused was a 66-year-old. The others were between
30-60 years. It shocked the nation but had little effect on stemming the sexual assaults on children.
A study on the status of pending trials in child sexual abuse cases in India by the Kailash Satyarthi Children’s Foundation found that the conviction rate was just nine percent. It said that if things moved at the current pace, victims of pending cases would have to wait till 2029 for justice even if no new case was reported. Another study by the Delhi Commission for Protection of Child Rights has underlined how the victims and their families were battling lack of empathy and assistance from government agencies in instances of compensation, health facilities, education, rehabilitation, reintegration into society and legal aid. The study found that most of the victims were poor, their family members were not educated, 42 percent of them had dropped out of school, 50 percent suffered from rape-related illnesses, 38 percent had not received legal aid and 68 percent who were supported in some way got it for just five days or less. Only 15 percent had received compensation.
Transpose these figures to imagine what could have happened to 24,000 cases of child rape that were registered in India between January and June this year. Only 911 have been decided. This roughly translates to just four percent. However, some states are trying to ameliorate the situation. Rajasthan, J&K, Haryana and Arunachal Pradesh have introduced the death penalty for rapes of minors below 12.
The Criminal Law (Amendment) Act, 2013, expanded the definition of sexual offences to include sexual harassment, voyeurism and stalking. It made punishment more stringent and ensured that the police quickly file complaints of sexual assault and act on it. The Act specifies that victims and their families must be counselled. It ensured that if the police failed to register a complaint of rape, it would be a crime that would be punishable with up to two years in prison. However, there is not a single record of a police official being charged under the provision.
A report of Human Rights Watch said that these measures are not being followed as its research found that rape victims were fighting a losing battle due to the apathy of the police, the judiciary and doctors. For instance, in 2013, a 13-year-old who was raped by a man from the landowning community in Maharashtra was taken into custody by the police when she reported the crime. She was held for nearly two weeks by the police who wanted her to retract the charges.
The situation is no different for women rape survivors. Jyotsna (name changed) is a 24-year-old rape survivor. She was carrying rotis for her sick mother in a village in Neemuch district of Madhya Pradesh when a car with an acquaintance stopped, offering her a lift. As there was a woman inside the car, she stepped in. After a while, the woman got off. The car halted soon as the driver said there was a puncture. As she got out of the car, she was gang raped by three men inside the vehicle. Instead of comforting and reassuring her, the doctor who examined her after the incident asked her why she was walking alone at night. He also subjected her to the “two-finger” test, which is illegal. Later, sympathisers helped her file a police complaint. She was shocked when the police detained her and her father and then beat her up. The police forced her to tell the magistrate that she had filed a false complaint. They threatened to arrest the father on false charges if he also did not sign a statement saying that his daughter had filed a false statement. The police then filed a closure report. This was in December 2015.
Though the law clearly stipulates that medical and counselling care must be provided to the victim, Jyotsna got none of it. Worse, her husband and his family abandoned her and she was forced to live with her parents. But they all had to leave their house after threats from the accused. When researchers of Human Rights Watch interviewed her, she said: “I lost everything. I did not leave my home for a month after the incident. I was tired of listening to taunts from neighbours. I just lay like a madwoman at home. It felt like I had lost my mind.” A local civil society organisation persuaded her to write about her plight to senior police officials and the State Human Rights Commission. She got no reply.
There is a Supreme Court judgment that says that the police must provide legal assistance and keep a list of legal aid options available to sexual assault victims. Human Rights Watch found that in no case investigated by the police was this done. In numerous cases, the police was found to misuse its power to threaten rape victims and their families. In November 2016, Jyotsna found the courage to testify that the police had forced her to retract her charge. The court reopened her case. But not too many stories of rape end up with a flicker of hope as this one.
Often, doctors did not follow government guidelines of procedures to be followed when a rape victim approaches them. Healthcare systems were found to have largely failed to provide therapeutic care and counselling to rape survivors. Neither were they given proper advice on access to safe abortions nor were tests done to detect sexually transmitted diseases.
Meenakshi Ganguly, South Asia Director, Human Rights Watch, said that reporting of rape by the victim should not end up becoming a nightmare and the only way to rectify this is to ensure that timely medical aid, counselling and legal aid are available.
There is now enough evidence to prove that just drafting tough laws and setting up infrastructure will not help deal with the rape epidemic in India. There has to be a change in mindset and a political will to deal with the problem.
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