Death for rapists of victims under 12: Nothing but a sham

14-year-old ‘K’ and her 10-year-old sister ‘N’ were brave enough to tell their mother about being abused by their own father, that too not just once, but on several occasions over the past few years. The mother did nothing about this, and instead told the elder one to keep quiet and not to disclose it to anyone. But, when the series of abuse became unbearable, ‘K’ decided to report the incident to police. The struggle for ‘K’ began at the time of lodging the FIR, because she literally had to convince the police about the abuse and that it was done by none other than her own father. Somehow the FIR got registered but the trouble for ‘K’ and ‘N’ started increasing day-by-day. Their mother was not happy with them and kept blaming them for bringing disgrace to the family. The elder brother of ‘K’ accused her of being characterless. In the middle of all this, 10-year old ‘N’ stood confused wondering if she had done the right thing. When the case came up for trial, the mother filed an affidavit in the court supporting the bail application of her husband (accused). Eventually, both ‘K’ and “N’ turned hostile, succumbing to family pressure.

A year before the POCSO Act came into existence, we had a similar case where the mother’s response to her daughter was that she only has to bear her father’s onslaught for a year, as after completing her school she will be sent abroad for her education. Indeed this was a case from a very well-off family. The case ended in acquittal as the child turned hostile. Fortunately, registration of an FIR helped this child to the extent that she could negotiate for her space and shift to another city to keep herself away from her perpetrator. ‘K’ and ‘N’ are not as fortunate.

Even before we jump into making new laws, the first question to ask is whether children have an “agency” and to what extent do our laws recognise it. There is so little we know about children’s realities while we continue be the gatekeepers of their protection. Any outcry for stricter laws and bringing in death penalty for child rape is a sham and we need to be ashamed of ourselves for making children’s lives even more difficult.

Apprehensions regarding the abuser killing off his victim when faced with a possibility of death penalty or the guilt a child may have to live with for bringing death to her abuser, especially when the abuser was someone known and trusted, cannot be brushed aside as unknown fears or hypothesis. Those of us, who work with child victims of sexual abuse and their families, handling suicidal tendencies, depression and a myriad other psychological disorders resulting from abuse, can vouch for it. Yet, when activists stand up against death penalty for child rape, they are branded as insane people who have no emotion for the victims, forgetting that they shoulder the larger share of responsibility to provide support services to the victims and change them into survivors.

Amidst public outcry for death penalty for child rapists and government’s reactionary response in the form of the Criminal Law (Amendment) Ordinance, 2018, there is one voice of sanity coming from the High Court of Delhi questioning the ordinance and its basis, asking if any scientific assessment was conducted or the views of victims were taken before placing this ordinance for approval. The ordinance fails on both these aspects.

It was high time to check the gaps and challenges in the implementation of existing laws rather than introducing another set of mandates without addressing these gaps.

Empirical research that is available today suggests that the system fails children right from the time a complaint is registered to the completion of trial. There are serious lapses at the level of reporting, investigation and judicial procedure. Here are some facts to consider:

The emotional appeal given about treating cases of rape of girls under the age of 12 years was uncalled for when the POCSO Act recognises sexual assault on children below the age of 12 years as an “aggravated” form of sexual assault, providing for higher punishment. And how serious we are about these children is actually reflected in the recent fact sheets produced by HAQ: Centre for Child Rights on children’s access to justice and restorative care. In 56% of 126 cases supported by HAQ in Delhi, the child was below the age of 12 years and in as many as 45% of these cases (32 of the 71), the FIRs are not registered under the appropriate provision of the POCSO Act.

In the name of streamlining the procedures, the ordinance offers completion of trial within two months from the date of chargesheet. Even prior to the ordinance, the Code of Criminal Procedure (CrPc) provided for completion of trial within two months from the date of charge sheet as far as possible. For some reason, the government felt that mere removal of the words “as far as possible” will ensure zero tolerance for sexual violence against women and girls.

HAQ’s fact sheets show that for 126 cases analysed, the average time taken to dispose a case from the date of cognizance was 488 days or 1 year and 4 months. Another research conducted by CCL-NLSIU suggests that in Assam, only 29% cases of child sexual abuse were disposed of within the stipulated time of one year. Whereas in Maharashtra, mere 42.25% cases were disposed of within one year.

When one digs deeper into the reasons of non-completion of trials within the mandated time frame, existing research studies point out the lapses at various stages of trial. A study by HAQ and FACSE of cases from Delhi and Mumbai Special Courts shows that only in 11% of the disposed cases from Delhi, the evidence of the child could be recorded within the stipulated period of 30 days from the date of cognizance. HAQ’s fact sheets show that a total of 1960 hearings have been held in 126 cases analysed since cognizance of the case by the Special Courts/Juvenile Justice Boards (JJB). Only 61.7% of these were effective hearings and 38.2% were adjournments.

For the purpose of ensuring speedy trial, the POCSO Act, under Section 28, provides for constitution of Special Courts. Further, Section 33 of the Act mandates the trials to be conducted in a child-friendly manner. This requires additional infrastructure to make the courtrooms child-friendly. While Delhi took the leap with setting up Vulnerable Witness Deposition Complexes in district courts, other district courts in the country are still struggling to have such specialised facilities or perhaps not struggling at all. Even in Delhi, two out of the 6 district Courts are yet to have such a facility. Moreover, with the exception of Delhi, Special Courts constituted under POCSO Act are found to be holding multiple charges, dealing with matters under many other laws as well. There is dearth of Judges as well as Special Public Prosecutors. There is actually nothing “Special” about the “Special Courts”.

The provision of assignment of Support Persons by the Child Welfare Committee (CWC) as stipulated under Rule 4(6) of the POCSO Rules, 2012 is a step towards providing the child with all necessary assistance throughout the process of investigation and trial. Even after five years of enactment of the POCSO Act, the CWCs grapple with non-availability of trained social workers and mental health experts to assist the child during the case. There is no budget in any scheme of the central or state governments to provide support persons and experts.

The sorry state of implementation of laws should actually make us wonder if death penalty can ever be a deterrent. Even to reach to the outcome of a case is a challenge. To have death penalty as the outcome is therefore an “eyewash”.

Failure to implement cannot be the reason for changing the law. What will the government do when it fails to implement the new legal provisions too?

Bharti Ali is co-director, HAQ: Centre for Child Rights, a Delhi-based NGO working for the recognition, protection and promotion of all rights for all children. Kumar Shailabh is an advocate and manages the Access to Justice and Restorative Care programme at HAQ: Centre for Child Rights.