Child Sexual Abuse
Insensitive interrogation, refusal of courts to follow rules, and overworked judges are failing child sexual abuse survivors.

This is the first in theTNM Delve series, 'Scars of Abuse'. The three-part series explores the aftermath of child sexual abuse for survivors and their families. 

Anjana*, at first glance, comes across as any other 54-year-old woman. She speaks softly and is easy to talk to. But ask about her daughter, Akanksha*, and the single mother is somewhat guarded. Her memory is a little foggy, and she blames it on the trauma the past couple of years have inflicted on her and her family.

In 2012, Akanksha, then 7, told Anjana that a plumber in her school in Bengaluru sexually assaulted her. As if this wasn’t shattering enough, the trial in the case, that started recently, has left the mother and the daughter traumatised. Anjana was questioned for over five hours, and Akanksha had to come face to face with her alleged assaulter more than once, during the trial.

Akanksha's case is just one instance illustrating the fact that, while for the media and the general public, child sexual abuse cases end with the arrest of the perpetrator, the real battle for the survivors and their families only begins at that point. In many cases, the trauma of the trial is as serious as that of the assault.

"It was horrible," Anjana says, "Everything was fine when the public prosecutor examined me. He asked questions about what happened and where. But when the defence began examining me, he asked nothing about the case!"

 
#ScarsOfAbuse A 7-yr-old sexually assaulted, the lawyer says d...

#ScarsOfAbuse A 7-yr-old sexually assaulted, the lawyer says during trial that she is sexually active.

Posted by TheNewsMinute on Tuesday, 19 September 2017

Anjana's voice cracks and after composing herself, she continues, "I live with my aunt and uncle. He (defense) asked me about my uncle, who is in his late seventies. He kept saying that he sexually assaulted Akanksha. Then he said that my uncle's younger son had done it. I told him he had moved to the US when the incident happened, but the [defence] lawyer didn’t listen. He was hell bent on proving that it didn't happen at the school… And then he said that Akanksha is a very sexually active child."

The defence kept repeating that Akanksha was sexually active, implying that the sexual assault was a voluntary sexual act on her part.

"I told him she is not like that. He kept saying that she is. The way he questioned me was as if to make me hurt enough to just walk out from there and withdraw the case. Which mother will want to hear something like this about her child? She was seven at the time! And he was her grandfather's age!" Anjana says.

Five hours later, when Anjana emerged from the courtroom, she was in tears. To her shock, she saw Akanksha, who had been waiting for her mother outside, also weeping and being violently sick – a reaction she has had every time she has had to come face to face with the accused. Akanksha came to associate a "rotten egg smell" with the incident, which triggered her to vomit each time she saw him.

"The first time Akanksha saw him (the accused) after the assault was at the police station where she had to identify him. She saw him and just started vomiting, saying 'rotten eggs smell, rotten egg smell!' The same thing happened when I was questioned. She must have seen him while waiting outside," Anjana narrates.

The trial is still ongoing, and the defence lawyer wants to examine Akanksha separately, in the absence of Anjana or the representative of the NGO which is assisting her. While the hearing was supposed to take place in June, the date keeps getting deferred because neither Anjana, nor her lawyer will allow for Akanksha to be questioned alone.

Image courtesy: Tulir

Akanksha's case predates the Protection of Children from Sexual Offences (POCSO) Act. However, the traumatic court trials which she and her mother experienced aren't limited to pre-POCSO cases.

Scores of child sexual abuse survivors and families - especially mothers - have horrifying stories about being made to feel like criminals, when the law should actually be protecting them.

Has POCSO helped make trials more child-friendly?

When senior human rights advocate BT Venkatesh started his practice in 1986, sexual abuse survivors used to be examined in open court halls where they were asked to disclose details of how and when the assault took place, unless 'in-camera' proceedings were specifically sought for. This experience usually left them tormented.

"At that point, there was a long felt need to bring in a law that would address child sexual abuse cases," says Venkatesh, who has also served as State Public Prosecutor in the High Court of Karnataka and is presently handling a number of POCSO cases.

Venkatesh blames a "culture of denial" which prevents Indians from acknowledging that children in their country are being sexually abused.

However, that changed when CSA was being talked about globally, and India too became a signatory of international conventions meant to tackle it.

While he agrees that POCSO has certain grey areas, he calls it a "good" Act overall.

"For the first time it recognises CSA, it makes the punishment more stringent and the procedure child-friendly. That the law is not being followed in letter and spirit is another aspect," he states.

Ashok GV, a Bengaluru-based advocate with Factum Law who has also assisted prosecution in CSA cases, says that POCSO coming into effect has had little effect on ensuring that trials are conducted in a child-friendly manner.

Before POCSO, judgments (most importantly Sakshi vs. Union of India and Virender vs The State Of Nct Of Delhi, 2009) and amendments to Acts (such as the Indian Evidence Act, 1872) came in.

These, Ashok points out, already laid down all the instructions currently under POCSO before POCSO itself came into the picture.

"What POCSO did was to summarise and consolidate the court orders in the form of a legislation. It wasn't saying anything new in that sense," Ashok says.

Judicial lapses

Lawyers and activists both argue that the problem isn't POCSO, or if a case is pre- or post-POCSO, but implementation. The issue consists of two major hurdles: infrastructure of the court, and the sensitivity of the presiding officers or judges.

Ashok argues that while Bengaluru recently inaugurated child-friendly courts, many cases regular courts have to double up as special courts under the Act. This creates a problem for the overworked and understaffed judiciary.

"If a judge has 100 cases in a day, he will have to act as a normal judge in 90 cases and, in 10 POCSO cases he has to become a special judge," he says.

Venkatesh too found judges facing this problem in the POCSO training session he was part of. A sessions court judge once told Venkatesh he was a "very special judge".

"All special cases are sent to my court. Be it POCSO, NDPS Act, women's cases or rape cases. So, for everything that is considered a special case, I am the judge," he laughed.

The judge went on to say that he handled so many different cases throughout the day, that he found it extremely tough to change his mindset to suit every case. "It is difficult to constantly switch on and switch off. I falter. It happens, I am human," the judge rued.

Images courtesy: Tulir

Another major problem arises from the manner of questioning itself. For one, under the POCSO as well as Sakshi judgment guidelines, the child cannot be directly examined. The questions must be submitted by the defense counsel to the judge, who would ask the questions to the CSA survivor. The guidelines also mandate that the child's mother or anyone that he/she otherwise trusts has the right to be in the courtroom with them. But these rules are often not followed.

Ashok says there is no mechanism to incentivise or de-incentivise judges for compliance and non-compliance respectively, and neither does it affect their career.

"Only private sector and NGOs evaluate performance of the judges within their own capacity. Within the judiciary, little effort is being made to come up with a scorecard for judges in these matters," he argues.

"Look at it from the other side too - just because a judge is conducting POCSO-compliant trials, it doesn’t necessarily mean that his/her career as a judge will progress upwards. What is happening to judges who are doing their jobs properly is what is happening to judges who are not doing their jobs properly," Ashok adds.

The key to a child-friendly trial therefore, he asserts, isn't POCSO itself, but nuanced judicial reforms.

Vidya Reddy of Tulir, an NGO which works on prevention and healing child sexual abuse, believes that it is not the procedures but the people in the system who matter.

"It all depends on the peopling of the system. If you have a very aware and sensible judge or public prosecutor, and you have the worst possible procedures, you can still do a brilliant job. But if you have a judge who sees a POCSO case just like any other case, the best of procedures will not make a difference," she says.

Vidya's argument is demonstrated by a 1996 survey conducted by a Delhi-based NGO Sakshi, to analyse the attitude of Indian judges towards women survivors of violence.

90% of judges said they would not opt for legal redress in the case a female family member was a survivor of violence. 74% said women should be primarily concerned about the family's preservation even if they were facing violence and 68% said they thought "provocative" clothing was an invitation to assault.

"The best and the brightest hardly go into trial practice," Vidya says.

Victimisation of the mother

In July this year, Pascal Mazurier, a French diplomat, was acquitted by a Bengaluru court of sexually abusing his daughter. If one goes through the judgment copy of the case, it's not difficult to smell the stench of misogyny that runs through it.

The defence's strategy was mostly, if not limited to, focused on trying to prove that Suja Jones, Pascal's wife, was a "bad mother" of "immoral" character.

The character assassination attempt advocated that Suja partied with "male and female" friends, took private pictures and that she left her children behind with her husband when she went out.

At one point, it reads, "If at all she being a dutiful mother she ought not to have left the home by leaving the responsibility of the children on her husband for shopping."

On a sunny July afternoon, Suja meets us in a café in Bengaluru. She is dressed smartly, her hair up in a messy bun. She smiles as we take our seats. Her ordeal through the character assassination by the court, while harrowing, does not seem to have weakened her conviction to fight for her daughter.

She believes that Pascal played his white male privilege cleverly and this simultaneously worked against her.

During the initial questioning, Suja says, investigating officers would allegedly ask if she had sex with her husband before marriage, among other things. "They asked me how many lovers I had, and how many times I had lied to my husband to go meet them. They asked me these questions just to make me feel bad."

When she later asked an officer why Pascal wasn't questioned in a similar manner, he allegedly told her, "How can we question him? He is a guest of our country."

"It's disgusting," the mother of three says.

Several professionals on the way advised her to compromise. A psychologist told her that her husband and she weren't having enough sex, and a family court judge didn't want their family to break apart.

"When I reminded her that she was a judge, she told me 'I am a human being too. I don't want your children to suffer'," Suja recollects with disgust.

One of the first questions that she was asked during the trial was how many children she had.

"They asked me the year of birth and whether I had a caesarean. When I said yes, the defence lawyer told me that I had put my three children in danger by getting a C-Section (and not a normal delivery)," she says.

 
The Scars of Abuse: How a child sexual abuse survivor and her ...

The Scars of Abuse: How a child sexual abuse survivor and her mother were put on trial instead of the accused. #TNMDelve

Posted by TheNewsMinute on Monday, September 25, 2017

If it was Anjana's daughter's character that the defense went after, in this case, it was Suja's 'morality' which was targeted. What they endured in court, while disturbing, is not far from the norm.

"This (line of questioning) particularly comes to fore if it is a case of incest. If the child is too young, they'll say that the mother's character is not good or that she has cooked up the incident for whatever reason. If the child is slightly older, say above 14 years, then too we have seen cases where they'll say that the child had relationships with many boys in the past and the father didn't like it," says Swagata Raha, a consultant with the Centre for Child an the Law, NLSIU, Bengaluru.

Vidya Reddy, however, is of the opinion that it is the judges who are to be blamed and not defence lawyers when it comes to intimidation of survivors or their families in court.

"We have an adversarial system of justice in India and it is the job of a defence lawyer to behave the way they do. I think it is wrong to fault a defence lawyer for being nasty. I would entirely fault the judge if she/he allows the nastiness to continue. The judge can make sure that the questions are pertinent, focused and not all over the place," she says.

"We've had defence lawyers who have come and apologised to our child witnesses. Who said, 'I am sorry but that was my job in the court'," she adds.

A large part of the problem, Vidya points out, stems from our discomfort to discuss anything to do with sexuality, and more so with sexual violence.

Vidya talks about NGO workers who cannot get themselves to say sexual abuse loudly. She has also seen doctors break down in court when asked questions related to sex or sexual assault.

During a trial, a woman forensic expert presenting evidence was asked by the defence, "Do you know what a penis looks like?"

When she replied in the affirmative, Vidya narrates, "He now looks at her and asks, 'Are you married?' and she says 'No'. And he says 'Oh! Then how do you know how a penis looks like?' She should have said that I am doctor and I should know how the human anatomy looks like. But instead she started crying and ran out of court."

Another challenge that courts often face, Swagata points out, is when dealing with cases involving children above 14 years who get into consensual physical relationships. The POCSO Act does not recognise any form of consent by children in sexual relations.

Understanding how a child describes sexual abuse

Suja Jones talks about how her daughter Amy* used to tell her about the alleged abuse when she was as young as two.

"She would cry when she had to go to him (Pascal). She wanted to sleep with me. She would say some things but I was carrying my third child at the time and the pregnancy had made my mind a little cloudy," Suja says.

But by the time Amy was about three and a half years old, Suja says that Amy's words were a lot clearer. Her language, while limited, was strongly indicative.

"She used to say that it hurts when she peed and pooped because 'papa' hurt her. I took it more seriously then," Suja says.

She consulted with a few doctors and psychologists who examined Amy, and filed a complaint against Pascal in 2012, just a few weeks before POCSO came into effect. She plans to appeal in the High Court against the Bengaluru court order.

Children, especially younger ones, may not know what sexual abuse is. In June, a Delhi court relied on a sketch made by a child for convicting the man who sexually assaulted her.

While there are concerns about the judge convicting the man without consulting with mental health professionals who could expertly interpret the child's visual, the judge's admission of the sketch was an act of acknowledging a child's way of communication.

Swagata says that it's imperative for judges to understand that children do not communicate the same way as adults.

"Children have their own vocabulary of communicating which is very different from that of an adult. So how they communicate and how you interpret it is very critical to the entire case," she says.

In other cases, some children may not have the vocabulary or capacity to describe or remember minute details of the assault.

Tarini* was 14 when a man from her village in rural Karnataka allegedly sexually assaulted her in 2013. Intellectually disabled since she was about three years old, she has the mental capability of a child of the same age. That she also suffers from memory issues was submitted to the court by a mental health professional.

The complaint was filed by her mother Hema* a few days after the assault and the trial is ongoing. Despite her mental condition, when Tarini was cross-examined, she was asked very technical questions about the assault, and about her surroundings, including how many goats she had then, how many they had three years ago, the names of temples in her village and so on.

She was also asked leading questions like, "You did not know any temple?" and "You have not seen the accused before?", which could have been confusing to a child.

 
The Scars of Abuse - The accused is living happily, but it's n...

The Scars of Abuse - 'The accused is living happily, but it's not the same for my daughter': Mother of intellectually disabled child sexual abuse survivor. #TNMDelve

Posted by TheNewsMinute on Saturday, September 30, 2017

Ashok says that the defense counsel is entitled by law to probe the veracity of the witness' claims to the last possible mile. "It's just that when there is a clear measure prescribed in the law as to how it's supposed to be done (keeping the child's sensitivity in mind), why is it not being followed?" he questions.

It does not help CSA survivors' case that in a society where anything remotely about sex is hushed up, and that children are not taught to use proper words for their sexual organs.

Several reports suggest that social workers make it a point to familiarise children with correct names of anatomical parts like 'penis' and 'vagina', rather than using euphemisms.

The advantage of doing so is manifold. Not only does it boost body positivity and self-confidence among children, and make them comfortable with their bodies, but also provides them with the right vocabulary when it comes to describing sexual abuse.

Citing the Delhi court's move, Swagata adds that this kind of understanding is not across the board and that it has to be more systematic. The lack of this understanding, coupled with the fact that POCSO is ambiguous regarding the cognisability of offences, works against CSA survivors.

"It does not make a statement whether all offences are cognizable (arrest without a warrant) or non-cognizable. Depending on the quantum of punishment we have go to Schedule II of Code of Criminal Procedure (CrPC)," says Venkatesh.

According to the CrPC, in cases where there is no reference to cognizability in a particular law, an offence punishable with less than three years is non-cognizable. This puts POCSO cases in a peculiar situation because in POCSO cases, it often happens that full disclosure of the crime is not made in the first complaint itself.

"In many cases, the child will say the accused used to treat me badly. So, when the statement is made before the police, it is made as harassment or assault. Then when the enquiry is made, the child says the accused did 'bad' things to him/her, which is penetrative sexual assault. But this would not have been registered in the case at all in the first instance. So, the accused could have been booked under a less serious section and could have been let off after signing a bond," he says.

However, a redeeming point of POCSO for CSA survivors remains that while an accused is to be treated innocent until proven guilty, here, there operates a presumption that the accused intended to commit the crime.

Justice delayed is justice denied

In June, Hema, Tarini's mother, had traveled to Bengaluru with her husband for an event where she thought she would be allowed to meet Karnataka Chief Minister Siddaramaiah. After waiting in a room full of people the entire afternoon, she gives us a call and says that she can speak to us, because the CM did not meet her and she has some time before she has to catch the bus back home.

She talks about her family's ordeal in a resigned manner. The frequent back and forth between the city and their home for court hearings, getting counselling for herself and Tarini, and the inability to forget how the alleged crime tore their family from all other hopes and dreams they had. The financial burden also shows no sign of easing in the near future either.

"We had just bought a few goats before it happened," Hema says softly. "We were thinking of making our lives better, of getting help for Tarini… But now, I have no dreams. Every time I see Tarini's face, for the past two years, I have been reminded of the horrible thing he (the accused) did to her. I know that she hasn't forgotten it either."

She claims that they still haven't received the DNA report, and all the delays have just made their lives come to a standstill. "We aren't able to move on," Hema states.

Image courtesy: Tulir

The quest for justice is an uphill battle in India, and what makes it harder is the slow pace at which the justice system often works. Weeks turn into months and then years, and survivors and their families end up having to repeat their stories, leaving them unable to move forward.

Ashok says that while the Supreme Court had mandated in 2015 that the day a survivor or witness is being examined, the cross examination should be finished the same day, or on the next day at the latest. "But we routinely see adjournments of three months, six months or more in many cases. How can a trial continue unless these directions are followed?"

Another problem which ails speedy trials are the delays in obtaining DNA reports, and medical examiners overstepping their brief/

While medical reports generally come in a few weeks, they are often accompanied by an opinion by the medical examiner on whether the sexual assault happened. Ashok explains that the mandate for a medical examiner is two-fold. The first priority is the health and safety of the survivor, that is, a screening for unwanted pregnancy, STIs and so on. The second mandate is to note down the injuries on the survivor as they are.

"For instance, in cases of incest, the crime is reported, say, 18 months after the assault. The medical examiner will look for injuries, he/she won't find any because they would have healed. And then a report is issued saying sexual assault may not have occurred. This is very damaging to the prosecution and it is very illogical," he argues.

He also points out how in the south, there are two DNA laboratories in Hyderabad and Bengaluru respectively, which are overburdened with the reports for nearly the entire country. This often results in the reports coming anywhere from a few months to over a year into the case.

Survivors of child sexual abuse often want to move on with their lives, leaving the horrors of their past behind. But the lengthy justice system often snatches this choice away from them.

Shruti*, a 12-year- old who Venkatesh is representing in court, was sexually abused when she was four.

The trial is still going on and she does not want to pursue it any more.

"She is highly intelligent. And she asks why is she being made to revisit the incident again and again. I feel bad," the lawyer says.

He opines that in such cases "we must look at the greater good instead of putting the child through so much pain over and over again."

*names changed

(Edited by Ragamalika Karthikeyan)