The recent allegations of sexual abuse of children spanning years in many reputed Chennai schools have shocked many, but it has also revealed how difficult it is to navigate institutional abuse. In many cases, the survivors are now adults. This has also brought to light a contentious aspect of the Protection of Children from Sexual Offences (POCSO) Act – mandatory reporting. Under section 19 of the Act, reporting of child sexual abuse (CSA) to law enforcement is mandatory for anyone who has an apprehension of such an act being committed or has any knowledge of such a case. This includes NGOs, educators, health professionals, parents, neighbours, and legal professionals who might be aware of such cases.
However, the criminal justice system is complex, and not child or survivor enabling. Even in the context of the Chennai schools, while FIRs have been registered and the cases do fall in the ambit of POCSO (which came into effect on November 14, 2012), survivors are understandably hesitant to come forward formally and be part of the legal process which can be long drawn and draining.
“The obligation to report is considered to be an acknowledgement of the prevalence and severity of child sexual abuse, and a means to prevent continuing violence,” said a paper authored by a team at Centre for Child and the Law (CCL) at NLSIU titled "An Analysis of Mandatory Reporting under the POCSO Act and its implications on the rights of Children" published with the National Law School in 2018. But on the other hand, experts argue that the mandatory reporting clause takes away agency from children and survivors, compels them to relive the trauma in an unfriendly criminal justice system, and increases the possibility of them being subjected to social stigma. It has also been found to hinder survivors’ access to medical aid as well as psycho-social intervention.
However, the solution is not as simple as just removing the mandatory reporting clause from the POCSO Act altogether, especially when it comes to tackling cases of institutional abuse.
“Any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to, (a) the Special Juvenile Police Unit; or (b) the local police,” reads section 19 of the POCSO Act. If a person who has information on any abuse fails to report, they may face imprisonment up to six months or fine or both.
The Act also gives room for adult survivors of Child Sexual Abuse (CSA) to file a case if the instance(s) of abuse happened after November 14, 2012, when POCSO took effect. Under POCSO, a case is not filed based on solely on availability of medical evidence. Sandhiyan Thilagavathy, the founder of AWARE, a Chennai-based NGO that works closely with CSA survivors says, "Not having medical evidences does not act as a hindrance in this case since the POCSO Act recognises the responsibility of the accused to provide evidences and prove that they are innocent."
“However, survivors of CSA who want to report cases that occurred before 2012 will have to file it under the IPC and not POCSO,” V Kannadasan, an advocate at the Madras High Court, points out.
“The law does not state a time period within which a reporter of CSA should file the complaint. However, it does not specify what counts as grounds for suspicion for reporters,” says Thilagavathy.
The spirit of mandatory reporting does not always translate to what survivors need in reality. Arpan, a Mumbai-based NGO working against CSA, interviewed 64 adult survivors who were a part of a study on the subject and found that a majority of the respondents were against mandatory reporting, and only 37.5% were in favour of it. “The reasons for wanting reporting to be mandatory was primarily to regain a sense of control by shifting the shame, guilt and blame on to the abuser when these feelings had been projected onto them [the survivors] instead by a culture of victim blaming,” the study said. It added that “mandatory reporting would also put the onus of ensuring justice for the survivor on the responsible adult stakeholders.”
However, most of the respondents in the study by Arpan, who were against mandatory reporting, “described their social environments as 'patriarchal', 'misogynistic' or 'insensitive' and were wary of the stigma and blame that they would have to deal with if their abuse is exposed.”
Even where reporting does happen, survivors are left unprepared for the costs, and not just financial ones. “The process wears you down, re-traumatises survivors. I have seen families breaking up because of this. And given the high rate of acquittals, what is the guarantee that the accused will be convicted?” Vidya Reddy of Tulir – Centre for Prevention and Healing of Child Sexual Abuse in Chennai, had told TNM.
Vidya also points out that mandatory reporting of CSA has been borrowed from other countries’ contexts, forgetting the structural systems and processes in India. In cases of familial abuse for instance, where the perpetrator is also the breadwinner of the family, the unwillingness to report could also be because of the reality of survival and sustenance if the earning member is behind bars.
Mandatory reporting also puts doctors and mental health practitioners in a dilemma. They are, on one hand, bound to maintain patient privacy and confidentiality, and on the other, mandated to report CSA if they come to know of it regardless of the consent of the child or their family. A paper published in the Indian Journal of Medical Ethics Online in 2016, titled “Ethical concerns related to mandatory reporting of sexual violence” highlighted that while the law aims to punish the perpetrator, the onus of reporting sexual violence to the police jeopardises health workers’ therapeutic role. The authors – Jagadeesh N, Padma Bhate-Deosthali, Sangeeta Rege – also argue that mandatory reporting, not just under POCSO, but also for rape (IPC section 375C), is contradictory to other legal provisions such as section 164A of the CrPC. This section made it binding for medical professionals in 2005 to do medico-legal examinations only with the survivor’s consent. The paper also contends that mandatory reporting is in contravention to the right to privacy, and also the Medical Termination of Pregnancy Act, which makes it mandatory for doctors to maintain the patient’s confidentiality.
Meanwhile, though some health professionals interviewed for CCL-NLSIU paper believed that reporting would stop the abuse, others spoke about the dilemma of violating a child’s trust by reporting the abuse if the child does not want to. “[…] mandatory reporting to the police will trigger a criminal justice proceeding that is likely to result in acquittal due to lack of adequate evidence, lack of support to the victim, or pressure from the accused. Further, it may even result in system induced stigmatisation and victimisation which makes healing much more challenging,” the paper pointed out.
Once the case is reported, the child has to engage with police who are recruited by different criteria and not necessarily to address the complexities of sexual violence, become re-traumatised in the judicial process, receive attention from the media, among other things, which can be detrimental for healing if the survivor and the family are unequipped and/or lack support. The fear of reporting also prevents survivors and their families from accessing healthcare and works against the best interests of the survivor. “In many CSA cases where the girl gets pregnant, they are forced to go for unsafe abortions because going to a doctor would mean reporting the abuse to the police,” Vidya says.
In some cases, the police also find themselves in a dilemma when they learn of a CSA case, but there are no witnesses or complainants who want to come forward. “Unless you have receptiveness from the complainant and their family, and they have been informed of the processes and are prepared for them, reporting can be counter-productive,” Vidya says.
There are also cases where mandatory reporting is used to criminalise teens in relationships or young adults who have engaged in sexual acts consensually among their peers. One of the running critiques of the POCSO Act is that it does not take into account the fact that children also have a sexuality. The law ends up being misused by disapproving parents or law enforcement and others in consensual ‘romantic cases’ too.
However, Vidya as well as Kushi Kushalappa of Enfold, an organisation that works in gender sensitisation and helping CSA survivors, believe that in the cases of institutional abuse, mandatory reporting should continue.
Under the POCSO rules, states in India are supposed to have their own child protection policies. And as per the User Handbook on POCSO, a school’s child protection policy is a “statement that defines the school’s commitment to safeguard children from harm and abuse.” It should broadly cover things like background checks and police verification of school staff and contract employees, establish clear boundaries around staff-child interaction, equip staff and support staff to detect signs of sexual abuse, and also train them on child protection norms and abuse prevention, among other things.
However, Kushi points out that there is no criminal liability on an institution if it does not follow the same. For instance, the Karnataka State Child Protection Policy says that every school should have a ‘child protection committee’ consisting of parents, children and teachers. In 2018, under the Karnataka Educational Institutions Act, the Education Department reiterated that schools should have a child protection policy. “But this doesn’t happen. How many private schools are going to let a Block Education Officer come and check the implementation of this?” Kushi points out.
Another problem, says Vidya, is that schools want to cover up incidents of sexual abuse because they think it’s a reflection of their institution. However, it is how the school responds to such a disclosure that becomes a reflection of the school. “When schools, who are considered to be duty bearers, encounter cases of CSA, they need to accept its occurrence, file a report and take stringent action instead of staying in denial,” adds child rights activist Devaneyan.
Kushi also notes that though schools are supposed to run background checks and have police verification of their staff, many perpetrators have never entered the legal system. Most schools, when they come to know of a case of sexual abuse, would terminate the alleged perpetrator’s employment or transfer them, without disclosing the reason. Parents are also unwilling to register police complaints, and many would rather take their child out of the school. “This is why reporting to the police should be mandatory in institutional abuse cases. Anyone can be the complainant in CSA cases, it need not even be the survivor if they are unwilling. In some cases that Childline was involved, it has become the complainant too. It is not about getting a conviction in court – reporting would ensure that the perpetrator enters the legal system, it might act as a deterrent for such behaviour in the future,” Kushi explains.
Further, Devaneyan tells TNM that “schools’ child protection policy should also encompass training programmes and guidelines to prevent cases of neglect, physical, emotional and online abuse, among others.” Appointing trained counsellors, conducting awareness camps, training programmes, sensitisation workshops, regular meetings with parents and understanding the mandates of POCSO and the Juvenile Justice law, are some of the measures child care institutions are recommended to implement.
Interestingly, mandatory reporting was not originally part of the POCSO Bill. The National Commission for Protection of Child Rights had suggested that reporting should be optional. The Standing Committee in its report on the POCSO Bill also agreed, noting stakeholders’ concerns that “parents and children would hesitate from seeking medical or psychiatric services due to the fear of social stigma,” the CCL-NLSIU paper recounted. However, the Women and Child Development Ministry did not accept this, and the Bill was passed with the mandatory reporting clause (section 19), and with section 21 of the Act making it punishable to not report the offence under the law.
In 2017, when BJP MP Subramanian Swamy moved a Private Member’s Bill in the Rajya Sabha to amend the Protection of Child from Sexual Offences (POCSO) Act to omit section 19, many people working with CSA survivors were skeptical about the clause being omitted, but suggested it could be made less ambiguous and more nuanced. Thilagavathy suggests that the loopholes and grey areas of the law could be identified instead and strengthened.
While mandatory reporting should remain for institutional CSA cases, in cases of individual abuse, Vidya says that a risk assessment should be done, the best interest of the survivor taken into account, and then reporting should be optional. But Kushi says that cases of penetrative sexual assault should be mandatorily reported so that survivors are able to access healthcare. “Having said that, there need to be supporting mechanisms – the onus should be on the state to provide treatment, counselling and speedy compensations and reliefs to the child and the family,” Kushi says.
Vidya also points out that justice for the survivor does not always mean legal justice, and many times, survivors want to be acknowledged, heard and believed; and there should be space for that path in the child protection framework.
Some argue that instead of altering the law, we need to shift our focus on the flaws in implementation. “The law is good but a systemic overhaul is required with respect to its implementation. Police personnel and medical professionals aren’t trained and competent enough to handle CSA or sexual harassment cases under IPC in various instances, which makes the process tougher, demoralises victims and delays the process of delivery of justice,” Kannadasan observes. “There have also been cases where the child comes face to face with the perpetrator during the trials or in the pre-trial phase.”
Experts also identify the need for educational institutions and the state machinery to work hand in hand to create and promote a child-centric ecosystem. “As per the POCSO rules, it is the responsibility of Child Welfare Committees as well as the District Child Protection Unit (DCPU) to ensure that child care institutions have a child protection policy in place. Child Welfare Committees should function at both the taluk and district level. At the taluk level, the committee should oversee the proper application of the POCSO Act, investigate cases, while the district committee should monitor and work along with child welfare members and members of NGOs. Both the committees should periodically conduct awareness camps in every school that falls under its jurisdiction,” says Kannadasan.
Kushi believes that we need to start mobilising existing district mechanisms – DCPUs for instance – and increase sensitivity about handling CSA cases. “We have noticed that people do want to help but need more training and sensitivity. The top-down approach doesn't always work. But if even 10 children who have faced sexual violence are getting the required support at the district level, it could create a feedback mechanism that can influence state-level or policy-level change.”
Thilagavathy explains that the onus is also on schools and parents. “Schools could connect with child safety stakeholders including child protection officers, members of the state and district’s welfare committees, legal consultants, police personnel and medical professionals who are trained to handle CSA cases and those in child protection.” He says inviting the said members to be a part of the schools’ events or training programmes would create more conversation and help parents, teaching and non-teaching staff, the management and students familiarise themselves with the resources available. He adds that this would also act as a deterrent for those present who have a sexual interest in children.