The Protection of Children from Sexual Offences (Amendment) Bill, 2019 (POCSO) was passed in the Rajya Sabha last week. The government considered it a great step towards ensuring the safety of children in India by making punishment more stringent for committing sexual crimes against children – including the death penalty and provisions for fines and imprisonment to curb child pornography.
The modification in the law will address the need for stringent measures against the rising trend of child sexual abuse in the country and combat the menace of relatively new kind of crimes – as stated by the government, stressing that the strong penal provisions will act as a deterrent. It intends to protect the interests of vulnerable children in times of distress and ensures their safety and dignity. The amendment is aimed at establishing clarity regarding the aspects of child abuse and punishment.
The government is patting its back by passing this bill as an instrument to curb child sexual abuse, but there is little evidence to prove that the death penalty serves as an effective deterrent. However, the Bill has some positive aspects such as time-bound investigations, trial and disposal of appeals, restrictions on bail, new fast-track courts, special forensic labs, etc. All these positive aspects shouldn’t obscure various concerns related to the Bill. It seems that this Bill is more a reflection of popular demands rather than a result of proper research.
The death penalty is even more problematic in sexual assault cases where the perpetrator is a family member of the survivor/victim. According to the National Crime Records Bureau (NCRB) report Crime in India, 2016, 94.6% of all cases registered under rape with penetrative sexual assault against children were committed by people known to the survivor/victim, such as immediate family, relatives, neighbours, employers/co-workers or other known persons. Realistically, there are very little chances where a child is sexually abused by a family member or a relative and will come forward and file a complaint knowing that the complaint could possibly mean death to his/her father, brother or a close relative. This would mean a lesser number of cases being reported.
The death penalty also increases the chances of increased rape and murder cases. Because the disclosure of sexual assault by the survivor could lead to the death penalty, perpetrators would prefer to play it safe for them – by killing the victim.
The legal aspects come into the picture when a complaint is registered. At times, registering the complaint in itself is a difficult process especially when the perpetrators are provided political patronage. The political clout of abusers and the use of threats often stop survivors from filing complaints.
The amendment fails to consider that a significant number of cases under the POCSO Act comprise statutory rape, i.e., cases in which the victim is below 18 years of age and willingly engages in consensual sexual activity. Studies conducted by the Centre for Child and the Law, National Law School of India University, in Delhi, Assam, Karnataka, Andhra Pradesh and Maharashtra on the functioning of the Special Courts under the POCSO Act revealed that cases in which the prosecutrix admitted to a relationship with the accused amounted to 21.8% in Karnataka (3 districts), 23% in Delhi, 15.6% in Assam, 20.5 per cent in Maharashtra and 21.2% in Andhra Pradesh. The criminalization of consensual sexual activity among or with adolescents between 16-18 years has severe implications on their right to life, privacy, and right to health. The possibility of the imposition of the death penalty in such cases in itself constitutes a grave violation.
Poor implementation of POCSO
The convictions for child sexual assault have steadily declined in the last 10 years despite the enactment of the POCSO Act, which provides for child-friendly procedures. From a conviction rate of 32.6% in 2006 for child sexual assault, it is down to 28.2% in 2016 – while the pendency has climbed from 81.3% in 2006 to 89.6% in 2016.
On July 12, 2019, the Supreme Court has taken suo-motu cognizance of the high pendency of POCSO cases, as data revealed that, “from January 1st to June 30th of this year, 24,212 FIRs had been filed across India. Out of over 24,000 cases, 11,981 are still being investigated, while police have filed charge sheets in 12,231 cases. Trials commenced in 6,449 cases only, it said, adding that they are yet to commence in 4,871 cases. Till now, trial courts have decided only 911 cases, about 4 percent of the total cases registered.”
Existing gaps in the infrastructure:
A. Absence of exclusive ‘Special’ Courts and Special Public Prosecutors.
B. Procedural Lapses: Children are often exposed to the accused, and aggressive questioning of survivors persists, resulting in survivors frequently turning hostile, more so in the absence of any witness protection systems.
C. Lapses in the investigation: Failure on the part of the police to collect relevant evidence, take statements of relevant witnesses, or collect forensic samples correctly are some of the major lapses that affect convictions.
D. Absence of Victim Protection and Support: A survey of 100 survivors of sexual assault by the Delhi Commission for Protection of Child Rights revealed that one in three children who faced sexual abuse dropped out of school. Further, only 15% of the survivors received compensation. The introduction of the death penalty for child sexual assault shifts attention away from the poor state of the implementation of the POCSO Act.
Indeed, child sexual abuse is a very serious matter. A society where the most vulnerable and innocent are regularly and dreadfully abused is indicative of a sombre situation that undoubtedly demands urgent intervention.
This can be achieved by:
- Ensuring that children are protected and supported when they courageously report sexual offences, when child-friendly procedures are followed meticulously and investigation and prosecutions are strengthened.
- Establishment of exclusive Special Courts and investment in infrastructure, people and training.
- Implementation of a robust Victim and Witness Protection Program which will provide the much-needed framework for ensuring support and protection to child survivors of sexual offences, enabling both higher conviction rates and greater levels of healing and rehabilitation of child survivors.
- What is also required is the certainty of conviction that will send a clear message to the offenders that will be held accountable for their actions.
The death penalty and enhanced sentences in child sexual assault cases are not the solutions as these will not make our children safer. The POCSO Amendment Bill, 2019 will inevitably endanger children rather than serve their interests.
Mohd Ikram is a part of Breakthrough India's Advocacy team and leads Child Safeguarding policy. He has closely worked with Juvenile Justice system in assisting Child in Conflict with Law (CCL) and Child in Need of Care and Protection (CNCP) by providing technical support for their rehabilitation and reintegration].
Views expressed are the author's own.