By PRITA JHA
In 2012 new legislation was passed to protect children against sexual abuse. But the gap between the law and ground realities remains large.
It is only in the last decade or so that the Indian state has acknowledged that child sexual abuse is an issue which requires government intervention. In 2007, a landmark survey (the first and last of its kind) revealed rampant physical and sexual abuse across 13 states. It interviewed 12,447 children; 53% had suffered some kind of sexual violence and around one in five said they had suffered serious sexual assault.
The most worrying statistic was that 70% of children had not disclosed the abuse to anyone, confused about what to say, afraid of their abuser, or afraid that they would not be supported but blamed. Most children said they knew their abuser who was often a neighbour, relative or friend. When they did disclose abuse, many were told to keep quiet, or were blamed for the abuse. Too many caregivers took no action, even denying the disclosure of abuse.
Active engagement with children, parents, teachers and schools is needed to counter such deafening silence, and create an environment that enables children to speak out. I lead an organisation called Peace and Equality Cell(PEC) which has worked with more than 150 survivors of child sexual abuse in the last four years. We have observed that poverty adds an additional layer of vulnerability when parents are too poor to afford suitable childcare and the child is assaulted whilst both parents are out working.
‘poverty adds an additional layer of vulnerability when parents are too poor to afford suitable childcare’
The story of one mother and five-year old daughter, who live in an urban slum in Ahmedabad, reflects some of the challenges of these cases. Savitri routinely left Joshila with other children in an area where a loose arrangement of neighbours and parents were supposed to note if something went amiss. One day, Joshila’s 16-year-old cousin Mohan took her to his home, which was familiar to her. He experimented on her, carrying out anal and vaginal rape.
The assault led to a raging battle between Savitri (who wanted Mohan prosecuted for “spoiling her daughter’s life”) and Joshila’s paternal grandmother, who was also Mohan’s maternal grandmother, Ammaji (who wanted the whole thing hushed up to save the family’s honour and, of course, to save her grandson from criminal proceedings).
Where family and community ties are very strong, sexual assault may or may not be reported to the police depending on a number of factors, the most important of these being the relative power of the perpetrator’s family and community versus that of the survivor.
The 2012 Protection of Children against Sexual Offences Act (POCSO) sought to take into account some of these ground realities to ensure that perpetrators were brought to justice. Among other things it requires ‘child-friendly’ procedures and infrastructure to ensure that children are not re-victimised and re-traumatised whilst navigating the criminal justice system.
But there is a huge gap between the law and its implementation.
‘there is a huge gap between the law and its implementation’
POCSO provides for a trained child welfare officer to act in the child’s ‘best interest’. It says children should not have to travel to police stations but that their statements should be taken by police officers at their home or at another location where the child feels comfortable, in the presence of trusted adults.
Police must ensure there is no face-to-face confrontation between the child and the alleged perpetrator and that the child’s identity is kept confidential at all times unless directed otherwise by the court. Police are supposed to provide the survivor with information about counselling, legal aid and compensation. They must ensure that medical examinations happen as soon as possible, and within 24 hours of being informed of abuse.
Although police have gradually become aware of POCSO and the number of individuals charged with offences has increased, particularly in Gujarat, the transformation of police stations to into child-friendly places has a long way to go. I have yet to see a station furnished, for example, with toys or magazines.
There is also a scarcity of private space in police stations. One 16-year-old survivor told me she was traumatised when she had to give her statement to a male police officer in a room where three other male police officers were present even though they were busy with other duties. Her parents were not allowed to sit with her to give her the moral support she needed.
Recently, I was present at a police station where PEC was assisting two survivors in a POSCO case. The two 12 and 15 year old girls were at the station for more than six hours, exhausted, hungry and thirsty. The were not offered a meal until around midnight. The recording of the older girl’s statement was interrupted several times and she was even moved from one room to another as her statement was being taken.
Shockingly, police officers allowed a face-to-face confrontation between the survivors and the alleged perpetrator, saying this was necessary to assess whether the girls were telling the truth. The whole concept of preventing secondary trauma and re-victimisation of children has not really sunk into police psyche.
‘the whole concept of preventing secondary trauma and re-victimisation of children has not really sunk into police psyche’
In Gujarat, most courts have common waiting areas and toilets which enhance the risk of confrontation between the accused, the survivor, and their families. This contravenes the 2012 law which says the child should not be exposed to the accused whilst testifying.
It also enables the accused’s supporters to attempt an illegal settlement of the case, a common practice known as samadhan or ‘compromise’. In these cases, witnesses may turn hostile, denying original testimonies of abuse. As their evidence is usually essential to prosecutions, the perpetrator goes scot-free.
Two years ago, in one village, the sexual assault of a girl with a learning disability was hushed up as the boy came from a powerful family. It was only after a PEC volunteer spoke to the village sarpanch (head) – and reminded him that the new law makes reporting of sexual offences mandatory, and non-reporting an imprisonable offence – that he reported it.
At this point, the girl’s mother Leelaben was offered money by the accused’ family to settle the case. PEC worked hard to convince her not to accept it (she was concerned about her daughter’s marriage prospects, and felt that the money would help her arrange a marriage). In this case, timely disbursement of compensation via the courts played a key role in preventing an illegal settlement.
POCSO has had the unintended consequence of criminalising consensual, adolescent sexual activity. Any sexual activity of children under 18 years is caught within the remit of this law, and approximately one third of POCSO cases are in this consensual category involving adolescent sexuality rather than child sexual abuse.
One proposal to address this is to lower the age of consent from 18 to 16. But as girls between 15-18 are most at risk of abuse, this could make things worse; already, proving consent in a trial is a vexed issue.
There have also been cases of parents of adolescent girls who disapprove of their romantic relationships using POSCO against their boyfriends. They can register a kidnapping case and make a claim of penetrative sexual assault which carries a mandatory minimum seven-year sentence. The girl may then be forced into marriage with a man considered suitable by the family.
Despite laws against child marriage, about 50% of Indian women between 20-24 years old were married before they turned 18. Marital rape is not criminal in India if the bride is 15 or older. This is presently being challenged by a NGO called Independent Thought, in the Supreme Court as being unconstitutional and against the state’s child policy.
What explains the gap between POSCO on paper and in practice? An entrenched culture of silence and victim blaming leads to low levels of disclosure. When disclosure happens, families struggle with shame and dishonour. Too often, public institutions fail to provide safe, supportive and enabling environments that survivors need to take on an arduous battle for justice.
Radical social transformation combined with a deep understanding of the child-friendly ethos of POCSO (as opposed to the adversarial norms of the Indian criminal justice system) has to be embedded within the psyche of the police, lawyers and judges. Courts should also be given discretion, and guidelines, at the sentencing stage to take into account factors such as age differences, inequalities between the victim and the perpetrator, the seriousness of the offence and its impact on the survivor.
Prita Jha is a legal activist, researcher and trainer working with issues of justice for survivors of communal, gender and sexual violence. She is the co-editor of a book, On Their Watch: Mass Violence and State Apathy in India, Examining the Record,with Surabhi Chopra. She has also taught courses on Gender and Criminal justice Administration at Nirma University, Gujarat.
Source: Open Democracy