“Children are like buds in a garden and should be carefully and lovingly nurtured, as they are the future of the nation and the citizens of tomorrow.” —Pandit Jawaharlal Nehru
Despite the heart-warming words of India’s first prime minister, many people have experienced some form of sexual violence as children—experiences that stay with them forever and turn them into fiercely protective parents. And almost every day, rapes of minors fill newspaper columns, shocking society about the depravity of adults.
In the Ayanavaram case in Chennai, a trial court convicted 16 accused on February 1, 2020. It was a case that numbed everyone as an 11-year-old hearing-impaired child was raped by 17 men from her neighbourhood over six months. A 56-year-old lift operator initially sexually assaulted her and then shared the incident with others. The parents of the victim got to know only six months later when she complained of acute pain. They filed a complaint in an all-women’s police station and the police commissioner formed a task force and took all the accused into custody. The police managed to convince the court about the seriousness of the crime and the danger of the accused tampering with evidence. The court dismissed repeated bail applications by the accused and finally convicted 16 of the accused; one expired during the trial.
Abroad too, there have been several such horrifying cases. In the UK in the ’90s, there was the case of Fred and Rosemary West and their “House of Horrors”. These twisted individuals had turned their children into sex slaves, killing several in the process. It still chills one to the bone to think of how the mother calmly responded to her tearful 12-year-old daughter after she was raped by her father with a flippant “you had it coming” remark.
In 2012, celebrity Jimmy Savile was posthumously identified as being a predatory child abuser for six decades. An independent inquiry into child sexual abuse was announced in 2014 by then British Home Secretary Theresa May to examine how the country’s institutions have handled their duty to protect children from sexual abuse.
In the US, for the most part, child sexual abuse laws have been enacted as part of its child protection policies. The US Supreme Court held in Esquivel-Quintana v. Sessions (2017) that the victim in such cases must be less than 16 years. Consent or seeming compliance is no defence. Several states do, however, include in their penal codes a “Romeo and Juliet” exception. This is for cases where sexual activity occurs between a young adult and a minor with a few years of age difference between them.
While state legislatures have increased prison terms and other penalties for child sex offenders, the more stringent sentences are reserved for repeat offenders or those who were in a position of trust with their victims. In Colorado, lawmakers proposed a new law allowing the death penalty for repeat offenders. However, the Bill was rejected by the state Senate because in intra-familial abuse, the victims could be intimidated by their abuser into thinking their family member would be killed if they reported the abuse.
In Kennedy v. Louisiana, 2008, Justice Anthony Kennedy wrote: “The death penalty is not a proportional punishment for the rape of a child, despite the horrendous nature of the crime.” He said capital punishment was only “for crimes that involve a victim’s death”. In the case at hand, Patrick Kennedy had raped his eight-year-old stepdaughter, resulting in serious injuries which required surgery.
One would like to believe that these cases are the exceptions rather than the norm, that these people are monsters (which they are) and that Indians are made of sterner stuff. If only this was true….
A few noteworthy Indian cases include Gorakh Daji Ghadge v/s The State of Maharashtra (1980) in which the Bombay High Court punished the father of a minor girl for rape, rejecting his plea that he had not deposited any semen during the crime. A similar line of thought was applied in Imrat Lal v/s State of Madhya Pradesh (2015) in which the Court said that for crimes dealing with minors, the punishment must be particularly severe.
A year later, in Harpal Singh & Anr. V/S State of Himachal Pradesh, the Supreme Court condoned the delay in filing a case as the family members were concerned about their “honour” and took some time to decide whether to take the matter to court. The Court boldly stated that as the girl was below 16, her alleged consent in sexual activity was irrelevant.
In 1983, in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, the Supreme Court dealt firmly with a man who detained and raped his daughters’ 10-year-old friends. The Court overturned the Gujarat High Court’s lenient view and upheld the trial court’s verdict convicting the man.
In State of Karnataka vs Manjanna on May 4, 2000, Hosadurga Hospital refused to medically examine a 15-year-old victim as she had not been referred by the police. The Court put on record its disapproval of such conduct by government hospitals, citing the loss of evidence on account of the delay. The judgment also stated that when in doubt, the age of the victim should be considered in her favour.
In the notorious Unnao case, a 17-year-old girl was gang raped in April 2017 and the accused, Kuldeep Singh Sengar, was a member of the UP Legislative Assembly. The Court convicted Sengar for rape under the Indian Penal Code and the POCSO Act for a public servant committing penetrative sexual assault against a child.
In 2018, there was the horrific Kathua rape and murder case where a minor tribal girl was kept sedated in a temple and gang raped and eventually killed four days later. Those convicted included the village head and caretaker of the temple, special police officers, two investigating officers, a head constable, a sub-inspector and a civilian. The sentences meted out were life imprisonment of 25 years for them. In addition, three other accused who destroyed crucial evidence were given five years in jail. The abduction, rape and killing of the child were part of a carefully planned strategy to intimidate and remove the minority nomadic community from the area. The father of the victim welcomed the judgment but said his family was expecting a death penalty for the accused. He also expressed disappointment over the acquittal of one of the accused.
The POCSO Act of 2012 was brought in specifically to protect minors from sexual offences. It seeks to protect children from offences such as sexual assault, sexual harassment and pornography. It is only applicable to child survivors and adult offenders. In case two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, as in the Nirbhaya case, the Juvenile Justice (Care and Protection of Children) Act, 2000, will apply. The POCSO (Amendment) Bill, 2019, was introduced in the Rajya Sabha on July 18, 2019. Its key features are:
–For penetrative sexual assault, the minimum punishment was increased from seven to 10 years. It adds that if a person commits penetrative sexual assault on a child below 16, he will be punishable with imprisonment between 20 years to life and a fine.
–Aggravated penetrative sexual assault includes cases when a police officer, a member of the armed forces or a public servant commits penetrative sexual assault on a child and where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others. The Bill adds two more grounds to the definition of aggravated penetrative sexual assault. These include: (i) assault resulting in death of child; (ii) assault committed during a natural calamity or in any similar situations of violence. Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life and a fine. The Bill increases the minimum punishment from 10 to 20 years and the maximum punishment to death penalty.
The logic behind the UK and the US not having the death penalty is that minors should not get dissuaded from reporting a crime for fear of the known person being put to death. So while the sentiment is commendable, there are no studies to support the view that the death penalty is a deterrent.
What we have in India is the world’s largest fingerprint bank via the Aadhaar card. This can be put to good use by forming a nationwide sex offenders’ registry. It should also be made mandatory for every would-be employee, especially those working with children, to be screened prior to getting a position.
In England, I once considered teaching as an option and had to go through a rigorous process of checks before I was certified as safe. This is something India could and should seriously consider implementing.
—The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research inputs from Tarun M
Lead picture: UNI