Rethinking the legal regime against child abuse
Rather than stricter provisions, enforce the current law, be sensitive to victims, and ensure certainty of punishment
When I met Pinki (name changed) a couple of years ago, she appeared to be like any other shy teenager, but her story was anything but normal. Sexually abused by her father at the age of 11, she had to wage an incredible battle for justice against her own family members, and well-meaning representatives of the justice system who advised her and her mother to forgive the rapist-father and settle the case. A few years ago, the father was convicted under the Protection of Children from Sexual Offences Act (Pocso), and Pinki was lucky to have found a safe and caring shelter home for children in need of care and protection. Today, with the help of supportive caretakers and counsellors, Pinki is a topper in her school — hopeful about her future, and keen to stand on her own feet and support her mother.
Unfortunately, Pinki’s case is an exception. Most children who report sexual abuse do not receive the support, sensitivity and care that Pinki did. According to National Crime Records Bureau (NCRB) data, crimes against children have increased by nearly 500% between 2006-2016. However, conviction rates for child rape have dropped from 32.6% in 2006 to 28.2% in 2016, while pendency has shot up to nearly 90% in 2016 from 81.3% in 2006.
A major impediment to justice for children in cases of sexual assault is the lack of protection and support victims and witnesses receive from both the justice system and society. This makes them extremely vulnerable. And, as in the case of the Unnao rape survivor, if the accused is rich and powerful, then justice that is already difficult to extract out of our broken system, becomes completely out of bounds.
The horrific Unnao rape case exemplifies the malaise within our justice system which fails to deliver. It is riddled with shortages of judges, poor infrastructure, lack of special courts and prosecutors, as mandated under Pocso , and, importantly, the absence of a victim and witness protection scheme.
In the last Parliament session, the government amended the Pocso Act to introduce the death penalty for aggravated penetrative sexual assault. It also increased punishment for
all kinds of sexual assault. In recent years, several state governments enacted legislation to award death penalty to rapists of children in the hope that it will reduce such crimes. These moves, though well-intentioned, are belied by studies of Pocso courts in five states by Centre for Child and the Law, National Law School of India University. The studies have shown that the death penalty might potentially increase the chances of judges acquitting offenders rather than imposing strict sentences such as the death penalty. In fact, tragically, crimes against children continue unabated. Moreover, a worrying pattern seems to emerging — rapists are often murdering children after raping them. In 2016 alone — the latest year for which crime data is available — more than 36,000 cases were registered under Pocso. Out of these, trials have commenced only in 6,449 cases, and verdicts passed in just 911 cases, which is an abysmal 4% of the total cases registered.
What a child in these circumstances most immediately wants and needs is for whatever is happening to her to stop immediately, and to feel safe and protected that such an incident will not happen again. She needs to know that there are people — most important in her immediate family, and then in the formal system — who will protect and safeguard her. If the family itself is trying to sweep things under the carpet, as they often do, in favour of protecting an older male relative, rather than the young girl, then it is vitally important that the child has a trusted adult in the system to turn to. It is here that the need for a formal child protection system and a trained child protection officer or social worker is important. Removing the child from the place of danger, and counselling both her and the family, enables her to heal as best as possible and get back to a normal life. It is here that Pinki, as compared to many others, got lucky. Her mother heard her and supported her, removing her from danger. And the child welfare committee was able to find her a home, which provided Pinki with a safe and nurturing environment, where she could live and go to school.
What is needed is not stricter provisions, but enforcement of the current law enforced in a timely manner, with sensitivity from police, judges and prosecutors, so that there is certainty of punishment for the offender, rather than further harassment of the victim.