Sex Abuse and safeguarding our children

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TOPIC: General Studies 2

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In News: Moving to deal with rising cases of child abuse, the Union Cabinet has approved amendments to the gender-neutral Protection of Children from Sexual Offences (POCSO) Act, 2012, allowing death penalty for all cases of aggravated penetrative sexual assault against children.

The amendments cover 21 kinds of sexual crimes that come under the definition of aggravated penetrative sexual assault against children. By approving an amendment to Section 6 of the POCSO Act, the Cabinet has enhanced the minimum punishment in such cases from the existing 10 years to 20 years and the maximum punishment to life imprisonment or death penalty.

As per the last available data, from the National Crime Records Bureau 2016, less than three per cent of child rape cases that came up before the courts under the POCSO Act read with Indian Penal Code Section 376 ended in convictions, pointing to the need for better access to justice for all, and not just more stringent conviction in a small percentage of cases.

What does it include?

Aggravated penetrative sexual assault includes certain cases of child rape by police, armed forces, relatives, public servants or management of remand/protection homes, by those on the management or staff of healthcare, educational or religious institutions within their premises. It includes continued rape or gang rape of a child or sexual assault using weapons.

It is also applicable in cases of rape where the child is harmed either physically, or in his/her sexual organs, impregnated or has to live with life-threatening infection as a result of the sexual assault, rape of children with mental or physical disabilities, and rape and attempt to murder. Penetrative sexual assault on children in times of communal violence now also attracts the maximum penalty of death.

Amendment has also added an additional category of sexual assault of children who are victims of calamities or natural disasters which now is liable for maximum term of life sentence or death penalty. According to Woman and Child Development Ministry data, children comprise more than half the victims of disasters.

The POCSO amendments also include stringent punitive measures in cases of child pornography including in cases where it results in aggravated sexual assault. It also increases the penalty for storage of pornographic material for commercial purposes to an imprisonment between three to five years, or a fine, or both. Failing to report or destroy such material or propagating it further will now be considered an offence.

Punishment

An amendment has also been approved to Section 4 of the POCSO Act so as to increase the minimum punishment to ten years, from the existing seven years, for ‘penetrative sexual assault’ of 16 to 17 year olds and if the child is below the age of 16 years, to a minimum of 20 years. The maximum term of life imprisonment in such cases has been retained.

Moreover, the definition of ‘sexual assault’ has now been expanded to include administration of hormones to children to make them appear more sexually mature for the sake of commercial sexual exploitation.

Fast-track Courts

Government has also informed the parliament that 1023 fast track courts that will be set up in the country for speedy trial of cases of sexual assault on women and children. In response to this, the Supreme Court has also asked the government to set up fast track courts particularly for POCSO cases. The centre has been asked to allocate funds so that such types of courts can be set up. This will include appointing judges, support staff and special prosecutors. The court has also given the government a 60-days deadline for such courts to start functioning.

Supreme Court had also registered a PIL suo moto to shape a concerted and clear national response displaying zero tolerance towards sexual assault of children. The Supreme Court ordered for the setting up of these fast track courts after a report by amicus curiae V Giri and Registry of the Supreme Court showed that at present only 670 POCSO courts have been formed to deal with over 1.5 lakh pending cases of child rapes. If cases under POCSO are to be disposed within a year the country needs a ratio of 1:60 which requires three times the strength of courts presently available.

Critics Say…

Burden of proof in POCSO cases lies on the accused. The introduction of death penalty will make it difficult for the weak and poor to overturn presumption of guilt.

The reason given for introducing the death penalty is that it will deter child sexual abuse. The government’s press release does not cite any evidence to prove that the death penalty can achieve this goal, in the absence of better policing and shorter trials. POCSO is already a stringent act, carrying presumptions of guilt of the accused. Imposing the death penalty for offences that already carry such stringent presumptions violates the right to life guaranteed under the Constitution. Further, it is especially difficult for the poor or disadvantaged groups to overturn these presumptions. And, studies show that most death row prisoners are from poor, lower caste or religious minority communities.

Usually, in criminal cases, the burden of proof lies on the prosecution, and the guilt must be proved beyond reasonable doubt. Under POCSO, however, there is a presumption that a person who is prosecuted for an offence has actually committed the offence, unless the contrary is proved (Section 29). Instead of “innocent until proven guilty”, the court assumes that the accused is guilty once the prosecution lays the foundation of the case. The Act also presumes that the accused person had a sexual intent when touching the child (Section 30).

With these changes coming into effect, the courts will literally be barred from exercising their judicial wisdom in deciding the quantum of punishment; the threshold of minimum punishment being set so high. Though the move to make the provisions of the POCSO Act more stringent was triggered by recent barbaric incidents of child rape that have shaken the collective conscience of Indians, a fact that the amendment Bill noted in its object and reasons, the state is somehow drifting away from the reformative object of criminal law.

No person is a born criminal. There are socio-economic or psychological factors which may lead a person to deviant behaviour. Such deviant behaviour could either be acquired or learned from the surrounding environment. The ‘nature verses nurture’ debate still revolves around whether human behaviour is determined by the environment or by a person’s genes.

Concept of Restorative Justice

Drawing from a survey conducted with the survivors and family members, as well as the accused, in child sexual assault cases in areas in and around Delhi, this study revealed that the meanings of “justice” tend to vary for the victim, offender, family, and community. The survivors or their families did not necessarily want the death penalty — or even strict punishment — for the accused. Rather, in many cases, they wanted the offenders to acknowledge their wrongdoing or tender an apology for their act.

These ideas are a part of “restorative justice”, which is emerging as a powerful tool in the criminal justice process, especially with regard to conciliation and mediation. The concept involves bringing the victim and offender together to remedy the harm — it makes the offender accept his/her offence. Criminologist Howard Zehr notes that crime violates both people and relationships. Restorative justice involves the victim, offender and the community in its quest for solutions, which are about repairing, reconciliation, and reassurance.

Punitive options, including the death penalty, are not the product of the concerns of victims or their families — they are notions of the state and therefore, driven by political considerations. Punishment seldom matches with the idea of justice held by the victims, their families or the community. Victimisation leads to trauma, shame, insecurity, and several other social and emotional consequences.

Restorative justice programmes enable the victim, the offender and affected members of the community to be directly involved in addressing the situation that arises after a crime. They become central to the criminal justice process, with government officers and legal professionals serving as facilitators of a system that aims at offender accountability and reparation. This restorative process — that often involves face-to-face interactions between all parties — is a powerful way of addressing not only the material loss as a result of the crime, but the social and emotional trauma caused by it.

A restorative justice approach would require the POCSO Act to concentrate on the victims’ needs — material, financial, emotional and social. POCSO ought to recreate or restore a community that supports the rehabilitation of victims and offenders — and in doing so, prevent crime. Adoption of such strategies will also obviate the costs and delays associated with the current legal justice system.

The Way Forward:

Only amendments will not solve the problem and time-bound investigation was crucial along with prosecution and proportionate compensation.

The budget allocated by the government under the women and child development should be fully utilised as despite making provision of good amounts, the funds remain largely unutilised.
All public buildings should have close circuit TV cameras and the entire expenses on treatment of such victims should be borne by the state.
The medical examination of female victims in such cases should be done by lady doctors.
The role of mental health professionals is also crucial in such cases. There is no institutional mechanism to provide psychological counselling for rape survivors in India. Most of the Indian laws like IPC, POCSO Act, Protection of Women from Domestic Violence Act, The Sexual Harassment of Women at Workplace Act, etc., have provisions only for awarding monetary compensation to the victims of criminal offence.
The Centre would have to appoint trained, sensitised prosecutors and support persons to deal with the POCSO cases and also directed the chief secretaries of states and union territories to ensure timely submission of forensic reports in such cases

However, we should recognise the fact that POCSO is often misused to cover up cases of elopement or inter-caste marriages. Therefore, the Bill should look into the fact that any harassment under the POCSO should be avoided, calling for attempts to curb misuse.

Note:

Odisha Court awards first death sentence under POCSO Act to man who raped minor: The case assumes significance not only for the landmark judgment but also the pace of police investigation, arrest of the accused and completion of trial, all of which were completed within six months.

Connecting the Dots:

Introducing the death penalty may grab headlines, but it is not the solution. Discuss.
Do you think that cases under POCSO law should deploy restorative justice? Explain.