Several years ago, a high-ranking diplomat in Delhi was accused by his wife of sexually assaulting their child. During investigations, there was no evidence against the official. The child simply said he was fed by the father. The true horror of the abuse came to light when a counselor stepped in and asked the child to draw how the father fed him. This gave the police clinching evidence and eventually helped the court in convicting the father.
Lawyers and mental health professionals use this case to illustrate the role of counselors when it comes to using psychological assessments of the victim as evidence to nail the accused.
“Counsellors are the bridge between the child and the country’s criminal justice system,” says Kaushik Gupta, an advocate at the Calcutta High Court. “Neither the police nor the courts have the expertise or resources to deal with children.”
The Protection of Children from Sexual Offences Act (POCSO), for the first time, has advocated the use of psychological assessments of children as forensic proof to chargesheet the accused. This will help the police strengthen their case against child abusers, including those who commercial sexually exploit them.
Children may not be articulate about what they went through, and may be scared and anxious to talk to an impatient policeman.
“By making sex a taboo in India, we are somehow adding to the violation. Children must be taught that it’s okay to talk about sex to adults they trust,” says Gupta.
While the existing Indian Evidence Act allows the use of the opinion of experts in their chargesheet, people have argued that the word ‘expert’ hasn’t been defined well enough here.
“There was no definition of the expert. To stand their ground against the defense during the trial, the police used only government-approved practitioners. However, there are not too many such registered practitioners, making it difficult for the police to use them,” adds Gupta.
The Union Ministry of Women and Child Development has drafted a Model Guidelines under Section 39 of POCSO, which spells out who can be a counselor. For a counselor to provide services to abused children, he/she must have a degree in Sociology/ Psychology (Child Psychology)/ Social Work. In addition, they should have at least two years of work experience.
However, there are several challenges in using counselors and their assessments as forensic evidence.
“The police does not even book POCSO in several instances of child trafficking. Sometimes even ITPA (Immoral Trafficking Prevention Act) is not used, as it requires coordination between police teams from different states. Many cases are simply booked as kidnapping. Therefore, the need for a counselor doesn’t arise,” says a mental health professional Uma Chatterjee.
As a way of moving forward, Chatterjee suggests that the use of counselors be made mandatory - both for support and rehabilitation of the victim, but also to use their assessments as evidence in convicting the accused.
“The child welfare commission (CWC) should issue a referral list of available counselors to all police stations. The CWC should ensure that the police use the help of counselors and that their assessment of the victims be attached to the charge sheet they file,” she adds.
Apart from using counselors for investigating cases of commercial sexual exploitation of children, the system should lend a ear to victims and help them in rehabilitation.
“Children who are rescued are either sent back to their villages or put in a shelter - both of which can be traumatic. As a result, they will not open up to policemen,” said Roop Sen, founding member and advisor to Sanjog, an organization that works in India to strengthen state policies and implementation of anti-trafficking laws. “You need experts to help children get past their anxiety. The state is not equipped to do that.”