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New law battles age-old woes

A year since the Protection of Children against Sexual Offences Act,2012,number of cases registered for such offences has shot up.

December 18, 2013 1:21:47 am

A year since the Protection of Children against Sexual Offences Act,2012,came into existence,the number of cases registered for such offences has shot up,but experts say the judicial infrastructure provided for tackling the problem and the sensitivity shown in such cases is far from adequate.

According to the statistics collated by the state government from November last year till June,926 cases of sexual offences against children,ranging from molestation and child pornography to aggravated penetrative sexual offences,have been registered in the state. It is nearly the same number of cases of sexual offences against children that was registered in whole of 2012.

Also,Maharashtra became the first state to have secured a conviction under the Act in March this year,when a 54-year-old was awarded death sentence for raping and murdering a five-year-old neighbour. So far,death terms have been awarded in two cases under this law in the state.

“Earlier,many of such crimes went unreported. Now,the general awareness is bringing out a clearer picture,” says Ujjwal Uke,principal secretary of Women and Child Development department.

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Vidya Apte from the Forum Against Child Sexual Exploitation (FACSE) calls it an “invisible crime” that is finally getting noticed.

Statistics provided by the Mumbai police show that the city alone registered 179 cases under the Act from January to December this year.

The highest number of cases (57) were registered in the east region,which comprises suburbs from Chembur to Mulund. The west region,from Bandra to Andheri,saw the second highest number of cases (49) while 23 cases were registered in the north region and 12 in the south region. The first case under the PCSOA was registered by the Juhu police on January 15,when school bus attendant Ramesh Rajput was arrested for allegedly molesting a four-year-old student of an elite Juhu school.

While the number of cases registered has shot up,this progressive legal tool has not been handled well enough,says Sumitra Ashtekar,member of Child Welfare Committee in Thane,who has written to the state government several times asking for a report on the cases registered in her district. Ashtekar says none of her letters have been replied to.

“The Act states that the cases,if required,should be referred to us (CWC). Not once have the police approached us or has brought any incident to our notice,” she says.

Last week,the CVC received a case of a two-year-old girl being molested by a 13-year-old boy at a creche she goes to daily. Though the police registered the case after being informed by the doctor treating the victim,Ashtekar says wrong sections of the law were applied in the case and statements of the families concerned were not recorded properly,something that could weaken the case at the time of the trial.

“The child is barely two years old. There is no question of putting her through the trauma of narrating the incident. But since she had complained to her aunt and her grandmother about the incident,the police should have ensured their statements were properly recorded. Also,the crucial charge of molestation under the Indian Penal Code was missing from the FIR,” Ashtekar says.

She says similar incidents of insensitivity are seen at the courts too. Despite the rules provide for a special court to handle such cases,the same court is burdened with other cases too. In sessions court at Kala Ghoda,the special POCSOA court until recently was also handling cases registered under the Maharashtra Protection of Investors Deposit (MPID) Act and adoption matters.

“POCSOA has provisions for recording the statements (of a child victim) anywhere outside,but they are still brought to the police station and later to the court. They need not be put through the hellish experience inside the court,” says Persis Sidhwa,a lawyer working with Majlis,adding that there was not one case in Mumbai where evidence of the victim child was recorded in a conducive surrounding outside the court. Children breaking down in the court,victims being unable to depose or deposing wrongly are a common sight inside the court premises.

Other practices of appointing a woman judge and prosecutor,and setting up screens between the victim and the accused are still missing from the many courts. “The child gets petrified when he or she has to climb three floors and enter a crowded court. Even with the current infrastructure,there is a lot that can be done to help the child and ensure he or she is not further victimised in the process of justice,” Sidhwa says.

The Act also provides for interpreters,translators,special educators and experts,arrangements for the care,protection and emergency medical treatment of the child,compensation to the victim and periodic monitoring of the provisions of the Act by the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights.

These measures are seldom put into practice.

The rules rely on the structures established under the Juvenile Justice Act,2000,to make arrangements for the care and protection of the child and to ensure he or she is not victimised once again in the course of investigation and trial. “There is no care taken to ensure the child’s mental health is restored and is helped in forgetting the incident,” says Ashtekar.

Uke says it takes years for the law to be properly implemented. “This law is just a year old. With time,these glitches can be resolved.”

“After the Act was introduced,we requested our superiors to provide enough female personnel in every police station. This is now kept in mind while making routine transfers of police personnel of the inspector rank and below. As of today,there are at least eight female personnel in every police station in Mumbai,” says a senior city police officer. Also,several NGOs have collaborated with the government and started training programmes. Additional Commissioner of Police (East region) Quaiser Khalid says that for crime like these,prevention could only be ensured through regular awareness campaigns among the people. “Parents need to understand the importance of educating their children at a very early age. Children need to know the difference between a casual touch and an obscene advance,and it is only the parents that can teach them this,” Khalid says.

However,the training is not adequate,something which was also observed in one of the first judgments passed by the then POCSOA judge Lakshmi Rao while sentencing a man to three years of rigorous imprisonment. The case was handled by a police officer on probation. “The court had directed the police to send the officer back to training for his shoddy investigation. It was a serious case of assault. Although the court convicted the accused,the quantum of punishment was not adequate,” Sidhwa says.

Also,this training has not been extended to judicial officers handling such cases. “When a new law comes into force,it is the state’s duty to provide training on its application and proceedures,” Sidhwa says.

A clause open to abuse

In keeping with the best international child protection standards,the Act provides for mandatory reporting of sexual offences. Each time it is brought to the notice of any of the stakeholders such as doctors,police,social workers,school and the general public,it has to be reported to the police,taking away the “choice” to register the case. However,many have objected to this,especially in cases of consenting couples where the girl happens to be a minor. “The aspect of mandatory reporting takes away the child’s right to choice,” says Apte.

Ashtekar says that in most cases,the family uses this as a tool to harass the consenting couple.

Last week,special judge S D Tulankar was hearing a bail application filed by a 21-year-old man,who has been booked under the Act following a complaint by the family of his girlfriend,who is 17 years and three months old. “The girl has admitted to having been in the relationship for sometime. She,in her statement to the police,has claimed she was into the relationship willingly and not under coercion or threat. But the family still went ahead and filed a case,” says Rahul Gupta,who is representing the boy. The girl too was sent to the children’s home for some time and has now returned to her family.

“Mostly,when the couple involved are from different religions and castes,they become vulnerable and often get targeted,” Ashtekar says.

“While the girl is looked at as a victim in such cases,the boy automatically becomes an accused. He is immediately charged,arrested and denied bail,as prescribed under the law,” says Persis.

The new law also prescribes punishment for a person if he provides false information with intention to defame any person,including a child.

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