The Union Cabinet last month approved an Ordinance allowing courts to pronounce the death penalty for those convicted of raping girls below the age of 12. While many have welcomed the decision saying child sexual abusers should be met only with the strictest of punishments, others have cautioned that this is unlikely to prevent or even curb the problem.
At a public discussion in Bengaluru on Saturday, several stakeholders in Child Sexual Abuse (CSA) cases unanimously disagreed with the new Ordinance, calling the death penalty for child rapists an ‘anti-child measure.’
From a lawyer to a retired judge, a former police officer, a social activist and a survivor, the experts spoke about various aspects of child sexual abuse and why death penalty to perpetrators may not be the solution. Many spoke about how the Protection of Children from Sexual Offences (POCSO) Act already prescribes a very stringent punishment for rape or penetrative sexual assault of a child below the age of 12 years, but the law is not properly implemented.
Certainty of punishment vs severity of punishment
Swagata Raha, an independent Legal Researcher on child rights said, “More than a populist measure, the death penalty Ordinance is an anti-child measure.”
“Death penalty is introduced thinking that the fear of punishment will be a deterrent, but it’s the reverse that is going to happen – with the introduction of the death penalty, there are going to be fewer reports of abuse. The conviction rates are dismal, since in majority of cases the child and family turn hostile,” she added.
“A large number of cases also end in acquittal because the perpetrators are close to the family of survivors. Those people put pressure on the witnesses,” said retired Supreme Court judge Justice V Gopala Gowda.
ST Ramesh, Former Deputy General and Inspector General of Police of Karnataka explained that it is not the severity of the punishment, but the certainty of punishment that we must focus on in cases of child sexual abuse.
Why cases are not reported
Several experts focussed on why many children don’t report abuse to their families. Dr Shaibya Saldanha, a gynaecologist and founder of Enfold India, an NGO working for the prevention of child sexual abuse, said,
“If a child comes to a dining table and says 'I have a headache' or 'My stomach's feeling bad', parents listen to them. But if the child says 'My bottom is scratching' or 'My susu is paining', they are told to be silent. So when we do not treat the genitals as a normal part of the body, the child cannot talk about it to a trusted adult, how do you expect the child to disclose something like sexual abuse?”
“The ordinance allowing death penalty has been described as legal populism by many. It is a futile process, since first of all the child is not even aware of what has happened to him/her. If the environment at home is fine, the child will at least report to the family if they have been abused. In many cases, the family tends to remain in denial; they are worried about losing their image in society,” Ramesh said.
“Many survivors may not want their abusers to be hanged because it breaks a family,” said Khushboo Singh, a PhD research scholar and a child sexual abuse survivor. “So as a survivor today, what are the options available to me to settle down in my life, to deal with abuse I have faced? We are missing that conversation,” she said.
“A person who is abused can approach the criminal justice system, but what if you do not want to approach the criminal justice system? In my case the incestuous abuse went on for years, and I didn't want to go to the criminal justice system. What are the options that we have in that case?” Khushboo asked.
The role of patriarchy
Bringing together the connections between different forms of violence, Khushboo said, “For me patriarchy and sexualisation are two important aspects at the very core of the issue. Sexual violence is just one manifestation of gender violence, and gender violence of other kinds should also make our blood boil.”
System not trained to deal with cases
The panel also discussed the need for ensuring that existing problems in the system are fixed, especially with regard to the implementation of POCSO. Justice Gopala Gowda said that the Ordinance on death penalty was totally uncalled for, and that it was digressing from the real issues.
“I heard recently that there are 30,000 cases in West Bengal of offences against children. But no special courts were set up, no special prosecutors were appointed. What is then the purpose of the existing POCSO Act then? And this is common for all states across India,” Justice Gowda said.
Ramesh said, “If a family proceeds to report a case, the first step of filing an FIR in the police station itself is very difficult. Even if a case is registered under IPC 376 or under POCSO, the investigation very often does not proceed. The police department in our country today is not able to devote time to quality work. They simply don’t have the resources, be it manpower or technology.”
“Apart from the police not being equipped to deal with such cases, judges are also not trained. It is statutory obligation of the government to ensure implementation of the POCSO Act,” Justice Gowda added.
“There is a need to reform the judicial system. There is a need for prosecutors, who are well trained in POCSO, judicial officers trained in the special laws. And the training should not be about only the legal procedure, but handling the case sensitively, in a child-friendly manner. We also need to make sure that witness protection and victim compensation laws are enforced,” Ramesh added.
“We feel better as a society that we are punishing the perpetrators, but there are no ground support mechanisms for the abuse victims. There is nothing to help the child and family to navigate through the system,” Swagata said.
(Edited by Ragamalika Karthikeyan.)