The unaddressed question of support structures for the victim

Interview with Bharti Ali, Co-Founder and Co-Director of HAQ: Centre for Child Rights

Could you talk a little about the current support structures in our system for Child Sexual Abuse (CSA) survivors. What are the major practical challenges we face?

To my mind when we talk of support structures, the foremost is the support person to be provided by the Child Welfare Committees (CWCs), which were formed under the Juvenile Justice (Care and Protection of Children) Act, 2000. However, this is a limited provision available for only those children who are victims of incest or sexual abuse in a child care institution or children without parental care. Apart from this, the CWC can provide a support person on a request being made by the police, but this seldom happens. The CWCs also rarely fulfil the mandate of enquiring whether the family needs a support person and whether they are comfortable with the person assigned, thereby ignoring the crucial aspect of a good rapport between the CSA victim, her/his family and the support person.

The major problem lies in the absence of well defined procedures to ensure a link between the support person and the Special Courts, leading to many practical problems. Some of the everyday challenges for the support person are that many times they are not provided with information about the case including the basic documents of the case, contact details of the victim and family, progress of the case especially in court. The police officer rarely informs the court about the assigned support person even though they are supposed to do so within 24 hours of such assignment. Actually, there is a lot of confusion about how this to be done, whether in writing or verbally.

As a result of this critical gap, important issues like witness protection cannot be bought to the notice of the courts. There have been cases where children and their families have faced serious threats from the accused when released on bail. A witness protection assessment at the time of granting bail could have helped avoid such situations. The support person can also assist in deciding on victim compensation, follow up on its realization and use and also inform the court of the same. This, is however, not seen as a critical step in ensuring justice.

Another example is that children are restored to their home states without any planning. As a result, cases remain pending or end in acquittal because the victims cannot be traced or brought back for their testimony. All these gaps and sharing of information hinders the mandated role of the support person to keep the victim and her/his family appraised of the investigation and trial. Therefore, there is a dire need for developing a link between the criminal justice system and the juvenile justice system.

A second concern relates to the one-stop centres, which ideally should be one in every district in the hospital. The idea of the one-stop centre is to ensure that the child can receive immediate medical attention, counselling and other support services, including the registration of the FIR as well as the recording of the child’s statement by a judicial magistrate, all in one place. However, at present, the model of the one-stop centres proposed by the Ministry of Women and Child Development (MWCD) is such that the victim will have to run around from pillar to post instead of receiving all the services in one place. For example, for immediate compensation the child will have to either approach the district legal service authority or the special court. Similarly, for recording of the child’s statement under section 164 of the Criminal Procedure Code (CrPC), 1973, the child has to be taken to the magistrate instead of the magistrate reaching the child at the one-stop centre.

In reality the setting up of these centres has not been possible because of the lack of political will. So even when the minister claims that 163 one-stop centres have been set up across the country and that the ministry is concerned about increasing sexual crimes, one wonders why we have not ensured one centre in each district even after five years of the coming into force of the Protection of Children from Sexual Offences Act (POCSO), 2012. For example, Delhi has 13 police districts and only four one-stop centres, none of which are able to provide all the necessary services that they are supposed to.

The other gap in the law is that it is very weak on the rehabilitation of the victims. It only provides for victim compensation, which again is very difficult to access because one needs a bank account, aadhaar and other documentation to even open such an account. In reality many people fail to qualify. The records show that most states have not been able to disperse victim compensation money.

The law also provides for the enlistment of translators, interpreters, special educators in each district under the District Child Protection Unit (DCPU), as per need, which can be provided to the police, Special Courts and magistrates, whenever required. However, the DCPUs have not been set up in all districts. The existing ones grapple with questions such as whether to advertise or nominate, screening and selection process, requirement for signing a child protection policy and releasing payments. Many states don’t have the funds and those that do often do not know how to use them in the absence of guidelines. Therefore, the DCPUs, which barely receive any support from their departments, are not only cash starved but have to seek sanction and approval for every expense. Sadly, most states are unaware that the POCSO rules require them to use the sanctioned fund for providing certain essential services to the victims.

Another important concern relates to the process of trial. While the law, on paper, is good in terms of child friendly procedures, it suffers from poor implementation. Delhi was the first state to set up a vulnerable witness deposition complex (VWDC) in four out of the six district courts. The experience of children with VWDCs has been excellent. Children appreciate the fact that they don’t have to see the accused and feel intimidated by conversations between the prosecution and defence lawyers inside the courtroom. However, there is a need to extend such programmes provisions across the country. Although the law has adequate provisions to deal with issues of support during the trial process, the pre-trial and post-trial situations remain unaddressed for both the victim and the victim’s family. HAQ’s research based on 126 cases of CSA shows that as many as 20% of children and their families had to relocate after the incident and 26% children had to drop out of school.1

Clearly, the real issues that children and their families face post an incident of CSA, remains overlooked and there are inadequate support systems to help them straddle through the process of rehabilitation and restorative care. Children’s access to justice is about ensuring restorative care as much as sensitive investigation and trial. To have failed them in restorative care is actually a denial of their right to justice.

In light of these practical situations incest cases are the toughest to deal with. Invariably the victims turn hostile due to family pressures. Mother’s who initially support their children routinely succumb to such pressure, more so when economically dependent on the abuser. Wherever efforts have been made to empower the mothers financially, there has been a better rate of success at the trial. It should be mandatory to make a needs assessment in all cases so that necessary support can be sought for vulnerable families.

Yet another set of difficult cases relate to children with disabilities, particularly children with intellectual disabilities and communication difficulties. Recording of their testimonies poses a huge challenge. While the law provides for video recording the statement of such children under Section 164 of the Criminal Procedure Code (CrPC) and using it subsequently for the child’s evidence in court, this seldom happens.

 

Do you think the law is being interpreted and implemented properly to ensure the provision of adequate support structures? Are there any gaps in the statute which need to be filled?

The law has made reporting mandatory and also non-reporting an offence. The statistics clearly reveal that the increase in sexual crimes against children is not driven by mandatory reporting. Crimes registered under the POCSO Act increased by 45% in the year 2013 and by 57% in the year 2014. In the subsequent years the increase was only 5.4%, going down to 2.6% in the year 2016. So what I am saying is that the increase in 2013-14 was primarily due to the widening of the definition of rape and raising the age of consent from 16 to 18 years. The subsequent decline establishes that the mandatory reporting provision has not worked and CSA remains under-reported for fear of stigma and lack of faith in the justice delivery system.

The latest ordinance promulgating the Criminal Law (Amendment) Act, 2018, is not ideal. To complete investigation within two months in the absence of desired investigation skills, forensic laboratories as also lack of women investigating officers is likely to result in poor investigation and outcomes. Similarly, the provision of mandatorily completing trials in two months is impractical and can potentially be detrimental to the child’s interest. Sometimes children themselves take time to overcome the trauma and be ready to testify in court. The ordinance has failed to show sensitivity in this regard. Sentences like the death penalty are also not likely to work in a situation where most offenders are known to the child and a fairly significant number are from the child’s own family. This will only increase non-reporting or victims turning hostile for fear of being blamed for bringing death to a close relative.

Sometimes the law, in its very design, takes away the support necessary for encouraging children to report and withstand the judicial process. Increasing the age of consent, introducing mandatory and harsher sentences are examples of how instead of being an enabling law it does more harm to the cause.

Pre-trial, the one thing that we definitely need is witness protection measures. Delhi has a witness protection scheme; a similar one can be adopted by other states. Strengthening witness protection at the pre-trial stage is critical because the victims and their families will be likely to face intimidation and threats thereby shaking their faith in the judicial and criminal process that may then negatively impact the judicial process and its outcome. The post-trial process must ensure that they are able to find legal representation when the matter goes into appeal. Often the victim is unaware that the offender has filed an appeal against his conviction. In case of acquittals the victims themselves may want to file an appeal but absence of legal support could hinder that process.

The other aspect requiring follow up post-trial is regarding the victim’s rehabilitation and social reintegration, though this intervention may have to begin concurrently with the criminal process. Some children require prolonged therapy, some others may require prolonged medical care and still others may require support for education or such other needs. In an ideal system, once the trial is completed, the case should be transferred to the juvenile justice system for ensuring the child’s rehabilitation. However, once a case is disposed there is no system to take care of the child as if all responsibilities stand fulfilled.

The most ignored aspect of support in CSA is the child’s family; this has never been a concern for any policy maker. Sexual crimes impact not just the child but the entire family in different ways with blame and guilt shared by both the child and their family members equally. Mothers are often found blaming themselves for not being able to protect their child. Parents are engrossed with negative thoughts about their child’s future, particularly marriage prospects and a healthy sexual life. All negativity, fears and apprehensions willy nilly get transferred to their children. Any therapy or healing process, therefore, has to be designed to address the emotional well-being of parents as much as the child. When families move due to social stigma, they often find themselves in more vulnerable situations, losing out on their source of livelihood leading them into a cycle of financial distress. When laws don’t work and the community networks also fail, the solutions seem far away. Indeed, prevention is always better than cure. Sexual crimes being deep-rooted in culture and patriarchy require more action at the preventive level. Working with communities on how to raise girls and boys, respect for human rights is an immediate need. The integrated child protection scheme was conceived to strengthen community level child protection networks. Bodies like the village, block and district level child protection committees were conceived to achieve this goal. Unfortunately, these committees are structured more as bodies that are representative of the government than being bodies of the people, by the people and for the people.

 

What do you feel are the real systemic failures that need to be addressed to create a proactive, child-friendly access to justice for victims of CSA?

While the legislative framework provides for a special law with Special Courts, special public prosecutors and special procedures for trial, the situation on the ground is not so special. There are gaps at all stages from the time of reporting to the completion of trial and thereafter. The police, the medical authorities, courts and the prosecution are still to come out of the conventional criminal justice approach into the special and sensitive approach that is required for children. With the new definition of rape and other forms of sexual abuse finding recognition in law, the insistence on medical reports that indicate hymen tear or injury marks or other signs of penovaginal penetration has no meaning. The Supreme Court has time and again reiterated that rape convictions can rest solely on the victim’s testimony if it inspires confidence and that medical evidence is only corroboratory. However, the functionaries are not trained to think differently and thus continue to operate in the old-fashioned and sluggish manner.

Moreover, the Special Courts do not exclusively deal with cases of CSA and like the other courts in India, are over-burdened. In most places cases are being handled by regular public prosecutors instead of special public prosecutors. Even when the law requires the recording of the child’s testimony to be completed within 30 days of cognizance by the court, in more than 90% cases this does not happen and can actually take up to 29 months, which is roughly about two and half years.2 As per the NCRB, 89.6% of the trials under POCSO were pending disposal in the year 2016. Even though lapses in police investigation resulting in acquittal are to be reviewed periodically and action against the erring investigating officers can be taken, this seldom happens. The manner in which forensic samples are collected and sent for examination often destroys the sample for any reliable results. Besides, only 16 out of the 31 state laboratories and 3 out of the 6 central laboratories have the infrastructure to conduct DNA analysis. As of 31 January 2015, 6,206 cases were pending at the central forensic science laboratories alone. A recent report in the Hindustan Times puts this figure at 12,000 cases. Some of the unexpected delays are at the stage between filing of the charge sheet and cognizance by the court. An analysis of 126 cases shows that 39% of the hearings listed at the stage of framing of charges ended in adjournments.3 29% cases from Delhi and 57% cases from Mumbai were disposed after the stipulated period of one year from the date of cognizance by the court.4

In addition, we do not have adequate number of women investigating officers, judges, special public prosecutors and support persons including translators, interpreters, special educators, counsellors and the entire paraphernalia to implement a law like the POCSO Act. We are also falling short on ensuring a well trained cadre at all levels of the system. The current training programmes are inadequate, most often a one time programme with no in-service refresher courses on a regular basis, except for the judicial officers. Even the training curriculum fails to appreciate the child sensitive provisions of the law. Consequently, aggressive and direct questioning of the victims continues and will worsen with measures like death penalty being introduced in the law.

One of the critical areas that has drawn our attention in the recent years has been sexual abuse of children in institutional settings, be it child care institutions under the Juvenile Justice Act, schools for children, ashrams, madrasas and so on. Very little information is available in the public domain in this regard. Only some newspaper reports awaken us temporarily every now and then. Most such institutions do not follow any child protection policies. Reporting abuse is avoided in order to protect the reputation of the institution. The environment is threatening for children to muster courage and report abuse. Only when the incident is gruesome and requires medical attention that such issues come to light. Many institutions avoid regulation under any law as far as possible in this regard.

 

How can these concerns be addressed by the various actors?

The Union of India spends only 0.05% of its budget on child protection but there is nothing for implementing laws like the POCSO Act and even less for restorative care and rehabilitative measures for the child. No wonder that the state governments are struggling to find resources for enlisting support persons, translators, interpreters, special educators and other experts mandated in the law. Most laws do not carry a financial memorandum to ensure necessary investment of resources. The situation will continue to remain grim if necessary financial commitment remains lacking.

Amongst preventive measures, sex education for children is still seen as a taboo. In fact in 2009, the Parliamentary Committee on Petitions categorically rejected introduction of any form of sex education in schools as part of the curriculum. While it is important to promote morals and virtues amongst young people, the same cannot be at the cost of ignoring their realities. Failure to educate children on sexuality has actually rendered them more vulnerable to exploration with their bodies that may be harmful. Teenage pregnancies, approaching quacks for abortion, increased consumption of abortion pills amongst young girls are issues that require a more rational intervention.

Alongside, community mental health programmes may help in addressing the general levels of aggression, disrespect, hatred and the proclivity to exercise power over others by hurting them. It can also help bind communities and slow down the disintegration process. Besides, such programmes can form a part of community rehabilitation initiatives for the victims and their families.

 

Is there a requirement for any guidelines and basic minimum criteria for handling CSA?

The Ministry of Women and Child Development had come out with a set of model guidelines for the implementation of the POCSO Act which have been ignored and forgotten by all implementing authorities. Going back to those guidelines could help improve the implementation of the law in letter and spirit.

 

Footnotes:

1. Fact-sheet No. 10: Children’s access to justice and restorative care, 2018, HAQ publication. This study was conducted on children being provided support by HAQ in the State of Delhi.

2. Research conducted by HAQ and FACSE (Forum against child sexual exploitation) during 2012 to July 2015, report: ‘Implementation of the POCSO Act: Goals, Gaps and Challenges, A study of cases of special courts in Delhi and Mumbai (201-2015)’, published by HAQ, FACSE, 2017, supported by UNICEF and another research conducted by HAQ for the period 2015 to 2017 (Fact-sheet No. 10).

3. Fact-sheet No. 10 ref.

4. HAQ and FACSE report.