The Dignity of the Child Victims, Humiliated or Protected- a view on Present Scenario
R. Malathi, Special Subordinate Judge, Special court (MCOP cases) Tiruchirapalli, Tamilnadu.
Introduction:: No more court scene, no more advocates around, no more witness box, no more piercing eyes, no more questions, “ Do you know where you are?”. The Protection of Children from Sexual Offences Act, 2012, is a wider step taken to protect the traumatic experience of children undergoing investigations and court trials. The real trauma of a rape survivor is said to begin only after she reports the crime. From the doctors to police, lawyers to the media, everyone wants to know minute detail of what and how it happened? She is raped a thousand times over with intrusive questions and barbaric procedures in the name of gathering evidence. For a rape victim sharing the incident even with her mother or doctor is an embarrassing issue. Children are the greatest gift to humanity and their sexual abuse is one of the most heinous crimes unimaginable.
The law makers have felt the urgent need for a specific law deviating the lengthy procedures in the codes, which leave sharp pain and unhealed scars throughout the life for the child victim and their family. For the first time, a special law has been passed to address the issue of sexual offences against children with child-friendly procedures. Sexual offences are currently covered under different sections of Indian penal code, Criminal procedure code, and Indian Evidence act. The IPC does not provide punishment for all types of sexual offences against children more specifically, does not distinguish between adult and child victims. Rape is an offence under the IPC, but lesser forms of sexual offences against children, are covered by grossly inadequate and inexact provisions such as “outraging the modesty of a woman.” How do we define modesty and apply Section 354, on outraging the modesty of women, with respect to children? The gravity of the offence under Section 509, dealing with obscene gestures, is less. Yet even in such cases, the child’s psyche may be affected as severely as in a rape.
The POCSO act has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. The legislation calls for setting up a special court and public prosecutors in child-friendly proceedings and atmosphere.
Child Victims:: According to Mendelsohn who laid the foundation of the science of victimology Child victims are completely innocent victims. Hembings says that Young victims who are physically under developed and psychologically immature are weak compare to adults. So they are easy prey to kidnapping and sex offence. The subject of child sexual abuse is still a taboo in India. In our social structure, the child victim is being stamped with both positive and negative identification after full-fledged investigation and trial. Even positive identifications affect the unique personality of the child.
Child abuse and child rights violation is a very complex phenomenon. Complexities of modern life have added fire to the problem of the child abuse. Few decades ago not much was known about the existence of this problem. Parental love and affection was the rule and child abuse was an exception. Now- a-days many children are abused in the hands of their own parents. There is a conspiracy of silence around the subject and a very large percentage of people feel that this is a western problem and it does not exist in India.
The shame secrecy and denial, associated with familial sexual violence against children, foster a pervasive culture of silence, where children cannot speak about sexual violence in the home, and where adults do not know what to do or say if they suspect someone they know is sexually abusing their child. The child sexual abuse is disturbing and abhorrent and very often unimaginable crime but unfortunately it exists at a large scale. Sometimes even as an organized and well planned crime.
The alarming results of "Study on Child Abuse: India 2007"and other statistical Figures have emphasized that a special law is mandatory to effectively tackle the issue. Therefore, The POCSO 2012 has been enacted. There are many provisions which take care of the rights of the victim and to uphold their constitutional right to Live in Dignity.
A child under the age of 18 years comes under the definition of child. They need to be protected from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law.
Child friendly procedures::
The Special courts to be established to try the offences registered under this act. The “Best interest of the child” is of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These 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
· No child to be detained in the police station in the night for any reason.
· Police officer to not be in uniform while recording the statement of the child
· The statement of the child to be recorded as spoken by the child
· Assistance of an interpreter or translator or an expert as per the need of the child
· Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled
· Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
· In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
· Frequent breaks for the child during trial
· Child not to be called repeatedly to testify
· No aggressive questioning or character assassination of the child
· In-camera trial of cases
Offences Punishments:: The act has defined all type of sexual harassment and assault.
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Offence
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Punishment
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Penetrative Sexual Assault (Sec 3)
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Not less than 3 years which may be extended to life and fine (Sec 4)
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Aggravated penetrative Sexual Assault (Sec 5)
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Not less than 10 years which may be extended to life and fine(Sec 6)
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Sexual Assault (Sec 7)
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Not less than 3 years which may be extended to five years and fine (Sec 8)
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Aggravated Sexual Assault ( Sec 9)
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Not less than 5 years which may be extended to seven years and fine (Sec 10)
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Sexual harassment of the Child ( Sec 11)
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Three years and fine ( Section 12)
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Use of Child for Pornographic purposes
( Sec 13)
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5 years and fine and in the event of subsequent conviction, seven years and fine (Sec 14(1))
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Attempt to commit and offence, Abetment of the offence
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Half the punishment prescribed for the commission of the offence.
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Burden of proof::
The golden rule of the criminal jurisprudence is that always the prosecution need to prove the case against the accused beyond reasonable doubt. For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).
Other pre-trial rights::
1. The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.
2. For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.
3. To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
General principles for use of professionals and experts assisting the child at Pre-trial and post-trial stages
The model guidelines framed under section 39 of The POCSO act listed by the Ministry of women and child development is as below.
1. Right to Life and Survival
2. The Best interest of the child
3. The right to be treated with dignity and compassion
4. The right to be protected from discrimination
5. The right to special preventive measures
6. The right to be informed
7. The right to be heard and to express views and concerns
8. The right to effective assistance
9. The right to Privacy
10. The right to be protected from hardship during the justice process
11. The right to safety
12. The right to compensation.
Implementation of POCSO::
Though the act has taken care of all the rights of the child victim in specific, even after two years has passed the offences against the child has not been decreased. The Legal Jurist feels that the implementation of the act is very poor and the stake holders are not sensitized on the provisions of the act.
Conclusion:: The child victims are humiliated through a long process in the name of trial before the enactment of the act. This legislation is enacted keeping in mind the dignity and rights of the children in country. But the cases reported are very less and reliable estimates are hard to come by. Since this is a secretive form of abuse it oftenmade victims to suffer in dark and claustrophobic silence. Institution meant for protection and prosecution play a very important role in a Child victim's life, Protection is the job of the parents and prosecution is the job of the state. Merely enacting legislation will not be enough unless this is followed by strict enforcement of the law with accountability defined.