Tags:
Journalism of Courage
October 13: From the family to the community to the police to the legal machinery 8212; everything, it seems, militates against redressal for child victims of sexual abuse. Squeezed between an archaic Indian Penal Code IPC and the remote possibility of a case going to trial, much less securing a conviction, the victim and her mother are put through the wringer, which brings discouragement every step of the way.
The first obstacle is written into the legal fineprint itself: There is no section of the IPC that deals exclusively with child sexual abuse. Section 375, which deals with rape, states that 8220;a man is said to have committed rape when he has sexual intercourse with a woman against her will, without her consent8230;. with or without her consent when she is under 16 years of age.8221; Moreover, rape is recognised only when penile penetration occurs. Object penetration, which is frequent, and anal and oral sex is not tantamount to rape. Section 377 deals with 8220;unnatural offences8221; and includes only oral and anal sex.
When parents file an FIR, police usually don8217;t know under what section to charge the offender. Says Inspector Shirish Inamdar of the Social Service branch of the Mumbai police: 8220;Between Sections 375, 377, 354 and 509, there are many grey areas. We can8217;t do anything when cases don8217;t fit the bill. Worse, says advocate Flavia Agnes, who runs the legal aid centre Majlis, police usually do not record a complaint verbatim but make their own interpretations. 8220;Most police stations are reluctant to register complaints as the number of FIRs they register reflects badly on them. Second, they are unlikely to believe the mother, who is usually the one wanting to file the FIR.8221;
Sometimes they even advise parents and guardians against filing an FIR, as it will 8220;be a permanent stigma on the child8221;. In most cases, parents don8217;t know under what section of the IPC the FIR should be filed. And not infrequently, the police pin the case on marital discord and file their own version of the complaint.
This tendency to blame the woman reaches far into the legal system. For instance, a woman in Uttar Pradesh left her husband8217;s house when she realised he was abusing their six-year old daughter. She took refuge in a shelter and also went to the police to file a complaint but was 8220;advised against it8221;. In the meantime, the husband filed a complaint against his wife and the shelter alleging an attempt to malign his reputation. The case eventually went to court. The court believed that the daughter8217;s abuse was only an excuse being used by the woman on the advice of the shelter.
Long-winded procedures further complicate matters. If the FIR is registered under Sections 375 or 377, the child must go to the police station and narrate the entire episode. Then the victim is medically examined, during which details of the abuse are recounted. If the medical report confirms abuse, the accused is arrested. By the time the case comes to trial, the victim may have reached marriageable age and may not want to pursue the case. In cases that go to trial, the child must testify and relive the trauma yet again. Psychologists call this secondary victimisation.
Judge, Sessions Court, Mumbai, told Newsline: 8220;The judge can decide on an in-camera trial or to have it in open court when the child is less than four years old. But the child still has to testify and will be cross-examined.8221; On the contrary, in England, the victim testifies only once during which the testimony is videotaped for later use.
Adds psychotherapist Kalindi Majumdar: 8220;Though the judge may decide to talk to the victim in the chambers, the child will not talk readily. When counsellors take several sessions to win the child8217;s trust, how can a judge expect the child to simply open up?8221;
Adds Agnes: 8220;Whenever we fight a child abuse case, our top priority is protecting the child. We really don8217;t attach importance to the offender8217;s fate as long as the victim is safe from him.8221; She recounts a case where the court issued a restraining order against the father even though the house was in his name. 8220;The father was abusing two of his five daughters. The mother was a silent observer. Finally, the daughters sought legal help. The man was arrested and later disallowed from entering the house.8221; But such cases are rare.
Though they concede that sensitisation of the state machinery is lacking, both Judge Dalvi and Inspector Inamdar feel things have changed for the better in the last decade. 8220;Judges do allow in-camera cross-examination which wasn8217;t the case earlier,8221; says Dalvi. Also the Law Commission has drafted a bill seeking changes in Section 375.
The draft, prepared in March, suggests that the definition of rape be broadened to include sexual assault which means 8220;penetration of the vagina, anus or urethra of any person with any part of the body of another person or an object manipulated by another person8221; and should also include anal and oral sex.
