Child Sexual Abuse: Efficacy of Protection vis-a-vis Prosecution under Criminal Justice System

Introduction

Children are innocent and helpless and therefore they need proper care and protection during the growing years so that their full potential can be utilised for the development of the society. They are the architects of the future of a nation so they should be protected from all kinds of abuse and given opportunities for their all round development. Child abuse is a state of emotional, physical, economic and sexual maltreatment meted out to a person below the age of eighteen and is a globally prevalent phenomenon. Child sexual abuse is a clear violation of the basic human rights of a child. Sexual abuse is inappropriate sexual behaviour with a child. Child sexual abuse is not a recent phenomenon. It persisted across ages yet a very large percentage of population of India feel that this is a largely western problem and that child sexual abuse does not happen in India. Since independence, India has developed its own jurisprudence concerning children and recognizing their rights giving paramount importance to their aspirations in the march towards an inclusive and equitable society. Yet the problem of child abuse has not received enough attention in India until the passing of the first landmark legislation the Protection of Children from Sexual Offences Act, 2012 which exclusively addresses the issue of child abuse. The present paper attempts to trace out the relevant statistics of child abuse in India, the scenario of child sexual abuse, the efficacy of child protection and the effectiveness of prosecution with special reference to criminal justice system in India in the light of recent enactment.

Child Sexual Abuse – Glaring Facts and Reality

Child abuse is shrouded in secrecy and there is a scheme of silence around the entire subject. In fact there is a well entrenched belief that there is no child abuse in India and certainly there is no sexual abuse in the country until this belief was shattered by the study undertaken by the Ministry of Women and Child Development on Child Abuse in India in 2007. The few glaring facts that emerge from this study are children on street, children at work and children in institutional care reported the highest incidence of sexual assault, 53.22% of children reported having faced one or more forms of sexual abuse which means one out of every two children has been a victim of sexual abuse atleast once, 50% abuses are persons known to the child or in a position of trust and responsibility. Another striking factor which was revealed in the study was that most children did not report the sexual abuse to anyone.[1] These distressing facts only highlight the gravity of the situation prevalent in our country.

According to World Health Organisation, “child abuse or maltreatment constitutes all forms of physical and or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power.”[2]  Child sexual abuse includes fondling a child’s genitals, making the child fondle the adult’s genitals, intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation. These acts must have to be committed by a person responsible for the care of a child.[3]

POSCO Act: New Legislative Vision for Child Protection

Sexual offences are hitherto covered under different provisions of Indian Penal Code. But the dismal fact is that these provisions do not provide for all types of sexual offences against children and more importantly does not distinguish between adult and child victims. The only way to overcome this issue of child sexual abuse is to create an enabling environment through empowered legislation and by making effective policy on child protection and their successful implementation. The enactment of Protection of Children from Sexual Offences Act, 2012 is one such genuine attempt by the legislators to create the desired enabling environment by empowering the children and strengthening the legal provisions for their protection from sexual abuse and exploitation. The Act purports to protect persons below the age of 18 years from offences such as sexual assault, sexual harassment and child pornography all of which have been accurately defined for the first time and are accompanied by rigorous punishments proportionate to the gravity of the crime. The Act also provides for safeguarding interest and well being of the child at every stage of the judicial process by incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and establishment of special courts and speedy trial of such cases.[4] 

The Act for the first time clearly defined the terms ‘Penetrative sexual assault’[5], ‘Aggravated penetrative sexual assault’[6], ‘Aggravated sexual assault’[7]‘Sexual harassment of the child’[8], ‘Use of child for pornographic purposes’[9]. In fact, the wisdom of the legislators is well brought forth in Sections 5 and 9 of the Act which overtly classifies and penalizes the act of penetrative sexual assault and sexual assault by a police officer, member of armed forces, public servant, being on the management or on the staff of a jail or remand home or protection home or observation home as aggravated penetrative sexual assault and aggravated sexual assault respectively to severely reprimand the persons who commit such offences despite their high status and responsible post. These provisions send out a strong message in general, which will aid in wider curbing of such offences by public servants and by persons in responsible posts.    

Child sexual abuse is a critical pattern of crime which, if not dealt appropriately, the interest of the child which is a fundamental principles to be followed in the determination of a case involving a sexual offence against a child have been laid down in various international instruments and in the Preamble to the Protection of Children from Sexual Offences Act, 2012 itself will be at jeopardy. Thus the judicial officers, public prosecutors, the investigating team comprising the police and Medico-Forensics, the State Legal Services Authorities and the Juvenile Justice Boards must co-ordinately work for furthering the interest of the child. The POSCO Act provides for the establishment of special courts to deal with the offences under the Act keeping the paramount importance at every stage of the judicial process. In order to secure an effective implementation of the Act, recently the Apex Court has directed all the States to designate special courts at the earliest possible endeavour.[10]

Efficacy of Prosecution in protecting the interest of the child

At the center of every child sexual abuse prosecution is the story told by the child. The child’s story in the form of the initial disclosure of abuse is usually the starting point of the investigation; and the child’s story in the form of the evidence he or she gives at trial is usually the foundation of the prosecution case. Thus the fundamental objective that needs to be taken in to consideration in all child sexual abuse case is the best interest of the child. Sexual abuse can itself have dire long term negative psychological consequences for its victims, but the degree of psychic trauma is as much and perhaps more dependent on the way the child victim is treated after disclosure then at the time of the offence itself. For ensuring that the levels of psychic trauma are kept at minimal the following aspects from criminal justice system point of view must be looked into: first, minimizing the impact of the investigation, secondly, minimizing the trauma of testifying.

The Protection of Children from Sexual Offences Act, 2012 gives ample protection to safeguard the interest of the child right from the occurrence of the offence of sexual abuse and provides a special mechanism for reporting the a case. In keeping with the best international child protection standards, the Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months imprisonment and or a fine.[11] Thus, a teacher who is aware that one of her students has been sexually abused by a colleague is legally obliged to bring the matter to the attention of the authorities. This is a very important salutary provision under POSCO Act which is enacted with a view to safeguard and protect the interest of child thereby having a penalising effect appended to Section 21 and its non-compliance will lead to sanction under the ambit of criminal law. Section 19 mandates the procedure for reporting of cases that any person including the child who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to:-

(a) the Special Juvenile Police Unit[12]; or

(b) the local police.[13]

Further every report given under Section 19 (1) shall be ascribed an entry number and recorded in writing[14]; to be read over to the informant[15] and shall be entered in a book to be kept by the Police Unit.[16] Where such report is given by a child, the same shall be recorded in a simple language so that the child understands contents are being recorded and in case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or interpreter shall be provided to a child if he fails to understand the same.[17] It also provides that where the Special Juvenile Police Unit or local police is of the option that the child against whom an offence has been committed is in need of care and protection, then it shall after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child to the shelter home or to the nearest hospital within twenty hours of the report.[18]  It is provided that the Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty four hours, report the matter to the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard. The Act, on the other hand, also prescribes punishment for a person, if he provides false information with the intention to defame any person, including the child.[19]

For the purposes of providing a speedy trial the POSCO Act provides for establishment of Special Courts[20] and for speedy trial the evidence of the child to be recorded within a period of 30 days[21] and the Special Court is to complete the trial within a period of one year from the date of cognizance of the offence.[22]  The POSCO Act further incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences which aim to ensure that the child is protected from intimidation, whether intentional or not. These interalia include recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector[23]and the police officer while recording the statement of the child shall not be in uniform.[24] The police officer making the investigation shall while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.[25] Further no child shall be detained in the police station in the night for any reason.[26]

The police officer shall ensure that the identity of the child is protected from the public media and the media has been barred from disclosing the identity of the child without the permission of the Special Court.[27] The child rights activists say that POSCO Act, which has helped overcome shortcomings in the Indian Penal Code in dealing with child victims of sexual abuse, has several structural deficits that need to be addressed.[28] Before this Act came in to force, the police used the provision Section 354 I.P.C.[29], a bailable offence in cases were girls complained of indecently touched. However the corresponding provision under POSCO Act[30] is gender neutral. The attempt to commit an offence under the Act mandates to be made liable for punishment for up to half the punishment prescribed for the commission of the offence.[31]  The Act also provides for punishment for abetment of the offence, which is the same as for commission of the offence[32]. This would cover trafficking of children for sexual purposes.

Impact of the Investigation on a Child – Minimizing to a maximum extent

One of the primary causes of stress for children in the investigative phase of proceedings is the number of times a child may have to tell the story of their abuse. Those who may interview the child in the course of the proceedings might include police officers, social workers, lawyers, doctors, mental health professionals. Continually having to repeat a harrowing story may itself be a harrowing experience for children. The investigating officers and judicial officers must try to avoid recurring interviews of the victim. The Act provides for child-friendly pre-trial and trial procedures to minimise the trauma felt by child victims and to eliminate the possibility of revictimisation at the time of trial. The child friendly pre-trial procedures cast duties on the police and are to be implemented at the time of reporting of offences and recording of the child’s statement.[33]

While recording statement of a child videotaping interviews through audio-video electronic means[34] is permitted which have the benefit of reducing trauma on the child victim by limiting the number of interviews. Instead of the child having to recall the account of abuse multiple times to different agencies as above mentioned, the interview can be videotaped and passed along to them. Further videotaping the interviews with child sexual abuse victims also helps increase the reliability of their statements. Besides, most disclosures in child sexual abuse cases occur first to family members and then to other institutionalised, law enforcement agencies who are not specifically trained to question children about sexual abuse; consequently leading to errors in interviewing and the child is more susceptible to suggestion and more subject to confusion or imagined memory than an adult.[35] Keeping in mind these problems, the POSCO Act permits to seek the assistance of a translator or an interpreter, having such qualifications, experience to assist in recording of evidence in such cases as provided under Sections 26 (2), 26 (3) and 38 respectively. Further the Special Court shall try cases in camera[36] and in the presence of the parents of the child or any other person in whom the child has trust or confidence. 

In the common law system of criminal trial, cross examination is generally considered to be the sine qua non method of testing the credibility of a witness. The purpose of cross examination is to unearth and discover the truth beyond any doubt. But there is a little doubt that the strategies usually employed in cross examination are more likely to confuse or intimidate a child witness than to lead to the discovery of truth. The defence counsel must adopt a middle path while testing and probing the child’s evidence so as to uphold the rights of the victim and the accused.[37] It is the duty of the judge to set child-friendly atmosphere while recording of evidence and give frequent breaks for child. It is also the duty of the presiding judge to ensure that the child is not called repeatedly to testify in the court.

Many children find the courtroom experience intimidating and this intimidation can create stress in child victims. Under these circumstances, a child can be a poor witness, and the process of navigating the criminal justice system can compound a child’s trauma. The POCSO Act, 2012 provides for a number of child-friendly procedures to be followed in the Special Court. In addition to this, some measures can be out in place in the Special Court to ensure that the child is not overcome by the circumstances. However, the rights of the accused, for example that of cross-examination of the child, must be protected while balanced against the rights and needs of these child victims. Some of the ways to ensure the child’s comfort is that screens are permanently in place in the Special Courts for the witness stands for the children. Additionally, the child-friendly courtrooms can be equipped with closed circuit television capabilities, which allow the child to testify in a separate room from the accused. Special waiting rooms should be provided within the court premises to allow the families to wait in privacy throughout the court proceedings. During criminal investigation some minimum levels of protection are required in relation to any interviews with the victim.

Conclusion

Thus it can be rightly concluded that Protection of Children from Sexual Offences Act is a welcome piece of legislation, in that it recognises almost every known form of sexual abuse against children as punishable offences, leaving little room for ambiguity in its interpretation. Further, by providing for a child-friendly judicial process, the POSCO Act encourages children who have been victims of sexual abuse to bring the offender to book and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma by criminal justice system. It makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child; working together, they can ensure that the child is given an opportunity to obtain justice for harm suffered and begin the process of rebuilding the child’s life and future.

Author’s Profile

C.E.Pratap is presently pursuing final year M.L. in Criminal Law and Criminal Justice Administration at Dr. Ambedkar Government Law College, Chennai. The author has few of his articles published in law journals, chapter contributed in edited books, presented papers in several International and National Seminars to his credit.

 Contact

The author can be reached at Mobile No. 98416 34847

E.mail: justicepratap@yahoo.co.in

Address for correspondence: 17/8, 5th Street, Alwarpet, Chennai – 600 018.