Death for Child Rape

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TOPIC: General Studies 2

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
• Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes

In News: After Madhya Pradesh and Rajasthan, Haryana has become the third state where the assembly has approved the provision of capital punishment for such sexual offenders. Delhi might be following the footsteps as well.

PIL basis the case: The case concerns the “brutal” sexual assault of an eight-month-old child in the National Capital.

Government’s Response: The government has expressed its objection to death penalty for child abusers, rapists and paedophiles, saying “death penalty is not an answer for everything.”

The Law

The Protection of Children from Sexual Offences Act (POCSO Act) was enacted in 2012 to address the growing sexual violence against children and the inability of the Indian Penal Code to deal with this concern. The Act provides –

• A graded classification of sexual offences against children
• Prescribes higher mandatory minimum sentences for such crimes
• Mandates several processes and safeguards to ensure a child-friendly trial such as the designation of “special courts”
• Child-friendly process of recording victim testimony
• Provision of compensation
• Protection of the identity of the child, etc.
• The Act also contains extensive mandates for procedures to be followed by the police, magistrates and medical personnel handling victims of child sexual abuse.

Although more than five years have elapsed since it came into force, the system is replete with failures and shortcomings. Crime in India, 2016 revealed that 19,920 children were allegedly victims of child rape in 2016 alone. However, the conviction in 2016 for such crimes stood at an abysmal 28.2 per cent while a majority of cases (89.6 per cent) are still pending for disposal.

Systemic changes needed for Deterrence

Two-finger tests need to be banned: Some hospitals still seek information on the status of the hymen, and that doctors continue to practice the two-finger test in rape cases. The two-finger test attempts to ascertain whether a girl or woman has a sexual history, with the assumption that if she consented to sex at some point earlier, her claim that she was raped is suspect. The Supreme Court in 2013 had held that the two-finger test on a rape survivor violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault.

Treatment of survivors at hospitals and courts: During medical examinations, survivors sometimes have to wait for hours outside the room where the examination is to take place. The room is clearly marked out as such, and thus passers-by identify the girl or woman as having suffered sexual abuse.

At times, the examination-in-chief of a child in court has repeatedly delayed as the judge was reluctant to hold an in-camera hearing, as is mandated by the law in such cases. Thus, the child was made to remember and recount her ordeal several times over, which is against the provisions of the Protection of Children from Sexual Offences Act, 2012.

Fear of reporting: In many cases where the offender is known, families may find it difficult to file a complaint with the police given the possibility that he may be sentenced to death. A more recent study conducted by the Centre for Child and the Law, National Law University of India-Bengaluru in five states on the POCSO Act has shown that the percentage of cases where the perpetrator was known to the child was above 70 percent in all the five states surveyed.

The study also finds that where children do testify against the accused, several systemic gaps such as lapses in investigation, lack of child-friendly procedures, challenges related to age-determination, poor appreciation of the testimony of the child adversely affect the conviction rate.

Other fears: As a large number of people continue to associate an incident of sexual assault with stigma for the victim, they may fear that she may be socially ostracised or that no one would marry her. Additional victimisation by authorities during the investigation of a rape only heightens these fears. Several cases of sexual assault go unreported for this reason.

The Way Forward – To curb Child Sexual Abuse

Safety should begin at home: There is a need to reform education – to guide them during their exploration years, to make them understand about the right ethical behaviour and to make them understand between good touch and bad touch. As in most of the cases, rape is committed by people known to child such as relatives, and neighbours, there is an urgent need for the family to be sensitised, and the deep-rooted attitudes that view them as inferior to men need to be also tacked with.

Law is not vengeance – it is meant to punish, to deter, and to reform

• In order to provide an effective response, it is imperative to analyse the present system and understand why it has failed. The low rates of conviction do not even have the effect of creating a fear of accountability in the first place. Our investigation needs to be quick and scientific.
• Instead of pursuing drastic remedies, we need to urgently devise ways to bolster the existing criminal justice and child protection systems and ensure higher convictions, higher reporting of offences, put in place preventive strategies, and address a large number of systemic and operational gaps.
• Victims should be provided with proper counselling at different stages, for life.
• Nobel laureate Kailash Satyarthi has advocated setting up a national children’s tribunal, on the lines of the National Green Tribunal (NGT), to deal with cases of crime against children in a time-bound and expeditious manner.

Connecting the Dots:

• One out of every two Indian children have experienced sexual abuse. Discuss the issue and highlight the measures that should be taken to protect Indian children especially school-going ones.