Though victims turning hostile is a major reason behind acquittals in many cases, it is actually the system that fails them.

Child lonely house near window
Delve Child Rights Saturday, November 14, 2020 - 12:33

Ashita*, a resident of a village in Kasaragod district of Kerala, was 10 years old when she revealed to one of her teachers that she was unhappy with how her father treated her when he was drunk. When Childline and the police got involved, it came to light that her father would sexually abuse her when he was inebriated.

"But when the case reached the court, she said her father would pamper her and treat her normally and nothing more. When I asked her later, she told me that her mother threatened her against testifying to the abuse in court because if her father left the family, she and her two younger sisters would be orphaned. Her mother also convinced her that her father is bad only when he is drunk; otherwise, he is the best," a school teacher of Ashita’s recalls.

She also expressed concern that Ashita and her sisters still live with their father, who drinks every day.

Away from Ashita, in the neighbouring district of Kannur, nine-year-old Diya* was sexually assaulted by a 70-year-old man, the father of the owner of the plantation where Diya’s father worked. Though a case was registered a few years ago, she never got to give proper statements in the court.

"The plantation owner bribed Diya’s father with money and alcohol, apart from threatening to fire him. Her family was given a piece of land where they built a house, as compensation," says a native of the village, who was actively involved in taking the case forward.

There are hundreds of children like Ashita and Diya in Kerala – survivors of sexual abuse for whom justice has proved elusive. According to Kerala police data from January 2020 till August, more than 1,900 POCSO (Protection of Children against Sexual Offences Act) cases have been registered. Malappuram has the highest with 248 cases, and Thiruvananthapuram comes second with 233 cases in eight months. In 2019, the numbers were similar.

However, as per data released by Childline in 2019, the conviction rate under the POCSO Act in the state from 2013 to 2018 was just 18%. Among the 1,255 trials completed, only in 230 cases did the accused get convicted. Moreover, while 1,255 cases concluded in the five years, thousands of cases are still pending in courts.

Prolonged trials weaken the case

The foremost reason for acquittals in POCSO cases is victims not sticking to their statements in court because the system is re-victimising and re-traumatising, says advocate J Sandhya, who was also a former Child Rights Commission member. "It is not just that victims turn hostile, it is that the system is hostile to the children."

The major issue, experts say, is that delay in the trial exhausts the child. "The law says the cases should be completed within a year. But it takes many years to complete the trial, which makes victims lose interest in seeing the case through," Sandhya says.

Being placed in the same vulnerable situations can also lead to victims changing their statements. "A child changes the statement only if their family pressures them and they don't have a support system. Children are provided with shelter only if they are abused by someone in their house or if they are orphans. So, when they go back to the same situation, they get manipulated. In most cases, families try their best to take children back home," says former CWC Malappuram chairman Manikandan.

Anwar Karakkadan, Childline coordinator in Malappuram, points out that a prolonged trial also gives the accused a chance to intimidate or influence the victim. "The accused is out on bail in 90 days, thereby allowing him to pressure the victim's family. In many cases, the accused is an acquaintance of the victim's family, which gives them a degree of influence over them. Completion of trial at the earliest can help mitigate this," he says.

Lack of expertise, compromised institutions

The lack of expertise in the investigation was also criticised in many POCSO cases.

"There are problems with the way investigations are done, and how effective our investigative agencies are in dealing with child sexual abuse cases. For one, a chargesheet without loopholes is a must. What we saw in the Walayar sisters’ case, for instance, was a failure of investigation," Sandhya notes.

In the Walayar case, two minor sisters were found dead in two months. Though there were suspicions that they were sexually abused, the accused were acquitted in 2019. They were arrested again in March 2020, following a High Court order, before being let out on bail.

Sandhya adds, "We don't have a specialised wing in the police to enquire into POCSO cases, which is what is needed. Only then a better probe can be done and a robust chargesheet be filed."

Father Joy James, former Thiruvananthapuram Child Welfare Committee Chairperson, also asserts that lack of expertise has a heavy cost in such cases.

"The stakeholders in these cases have no expertise in the POCSO Act. Reports from doctors after medical examinations are flawed, and it’s the same with the police. Then, every time the government changes, so do the public prosecutors. But there is no guarantee that they too will have the requisite expertise to handle POCSO cases," Father Joy James says.

One of the reasons behind this could be the political motivations behind appointments made to courts, experts say. "Who is being appointed at POCSO courts makes a difference. When decisions are to be made about children and their rights, it is important that the judge or prosecutor have a proper perspective. Unfortunately though, most of the appointments are political. Prosecutors are mostly politically affiliated, and that becomes a problem in many cases," Sandhya alleges.

Politically motivated appointments set back the CWCs too, observes Manikandan. Father Joy James asserts that it is necessary that these institutions be independent. "We need to maintain the independence of child welfare committees. Political parties hijacking such institutions will result in denial of justice, which is what we saw in the Walayar sisters case. The advocate for the accused was appointed as chairman of Palakkad CWC," he says. "If the CWC is unbiased, nobody can do any foul play in the case," he adds.

Injustice within the courtrooms

Children and witnesses in such cases can undergo significant trauma within the courtroom too because of the line of questioning allowed, and having to repeat their testimonies, among other things. Former High Court judge Justice Kemal Pasha says that this is why judges should be sensitised on how to hear POCSO cases.

"The biggest advantage for abusers is that children can be silenced, threatened and scared easily. Keeping that in mind, courts should take a liberal stance in these cases, such as when children may not speak out accurately, or miss out dates or details," he says.

He adds that when the child gets questioned many times, they may go wrong. He gives the example of the Palathayi case where a school teacher and local BJP leader Padmarajan were arrested for allegedly sexually assaulting a nine-year-old girl. Even the girl's classmates had given a statement against the teacher in the media. But when the crime branch took up the case, in the chargesheet filed in court, there were no POCSO charges. So, the accused easily got bail.

"In the Palathayi case, the child was questioned many times. Obviously, a traumatised child may get [some details] wrong. So, the benefit of doubt given in POCSO cases should be different from other cases. Appreciation of evidence should be different here," Justice Pasha argues.

Repeating the statements – earlier given to the police and other investigating officers – in the courtrooms is not easy for children either. "There are cases where a child has been called to court four or five times in a year, which creates pressure on the child. Meanwhile, the relatives approach the High Court to get custody of the child, and two days after the child reaches home, he or she has been seen to turn hostile because of family influence," Manikandan says.

"To create further pressure, we have also seen the accused file a complaint in the higher court against the agencies that deal with POCSO cases. They do this after having a negotiation with the victim's family," he adds.

Anwar points out that though some courts provide a friendly environment to children, if the child turns hostile, nothing more happens. “If the child keeps quiet, there aren’t sincere efforts to make the children speak out in the courtroom.”

Child support and follow-ups

There is also a need for change in perspective when it comes to child sexual abuse. For example, many Childline coordinators point out that male child sexual abuse is less concerning to people.

"Many also look at children’s issues from the perspective of charity, and not child rights. The perception has to change. It's not about charity. The approach should be based on justice and rights," Father Joy James states.

He also stresses on the necessity for therapy and mental health support in these cases.

"We need to provide psychological support to victims as well as accused, so that the latter will not repeat the crime. The CWC, because of the large number of cases it deals with, is not able to provide consistent support to each child who has been through these situations. A team of mental health practitioners and social workers is required in every district to follow each of these cases," he adds.

Manikandan also says that a proper tracking system is required. "We need a tracking system to follow the child as well as the accused during the trial," he says, adding, "Only few of the POCSO cases get noticed. There are hundreds of other cases where children are abused and no follow-up has been done. The accused finally get acquitted and nobody is bothered."

Anwar talks about the necessity of recording the children’s initial statements to use only in the courtrooms as evidence. "We need a system to record the first statement of children and that should be considered as evidence. Also, we need a system to do the medical examination of the child before filing FIR, so that details of that will also be included in it. Presently, medical examination is done after the FIR.”

Experts also stress that investigators, judges and public prosecutors handling POCSO cases should undergo proper training.

"We need to give special training to judges and public prosecutors. The child should get a supportive environment inside the court. The number of courts handling POCSO cases should also be increased," Justice Pasha says.

*Names changed

 


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