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Perpetrators of the bone-chilling Kathua rape case may have been convicted but sexual assault on children shows no signs of abating.

Who’s next?


Aditi Tandon in New Delhi

Perpetrators of the bone-chilling Kathua rape case may have been convicted but sexual assault on children shows no signs of abating. Long trial pendency and poor conviction rate are emboldening rapists. The grim scenario leaves everyone fearing...

Aditi Tandon in New Delhi

ixteen months after a minor was gangraped and killed in Jammu’s Kathua, a special court in Pathankot convicted six persons for the heinous crime this week. The wheels of justice have finally turned but people tracking the case feel these turned rather too late. “If India’s most followed child sexual abuse case can take this long to reach the first step of the justice system, you can imagine the fate of other cases that never attract public attention,” says Bharti Ali of HAQ Centre of Child Rights, which helps the victims get past the daunting judicial processes that can take years to conclude.

Ali’s concerns stem from the mounting pendency of trials in cases registered under India’s anti-child sexual assault law — The Protection of Children from Sexual Offences Act 2012.

This gender neutral law mandates the recording of victim’s testimony within 30 days of the filing of FIR. The idea is to spare the child the horrors of prolonged police probes and court testimonials. The law also requires every district to have a designated POCSO court, which must conclude the trial within a year of taking cognizance of the charges.

Now, picture the reality. The special court judgment in the Kathua case came much after the expiry of the POCSO deadline, despite the trial progressing under media glare and the case hitting global headlines after members of a Hindu Right wing front took out a march in support of the accused. The Supreme Court’s orders to shift the case out of Jammu to Pathankot clinched the verdict as it insulated the crime from its politics.

Activists are wary of the growing trend of the politics of child rape cases determining the level of public attention each case gets. They cite Kathua as an example, as well as Unnao, where a minor was reportedly raped by BJP’s MLA Kuldeep Singh Sengar and the FIR registered with great difficulty.

Poor conviction rate 

There are no updates on the Unnao trial, even as child rape victims continue to cope with an excruciatingly slow justice system, slack conviction and high pendency rates. In 2016 (the latest government record available for POCSO Act), the previous three year’s average national conviction rate was 32 per cent as against the court pendency rate of a whopping 91.4 per cent. In Delhi alone, where most district courts comply with POCSO Act provisions of separate victim deposition boxes, physical barriers between children and their violators and child-friendly spaces, the conviction rate in 2016 was only 18.49 per cent.

Crime, on the other hand, is rising in epidemic proportions. The National Crime Records Bureau data shows child rape cases across India increased threefold between 2014 and 2016 — from 13, 766 to 36,022 cases.

“The fact is there is no preventive plan in place. There is a certain political economy to what kind of sexual violence attracts our attention. While Kathua will catch our eye because it got polarised in a certain way, slum children can keep going missing as they did in Nithari and won’t command our attention,” says Madhu Mehra, a human rights activist. “The question is, how do you ensure equivalence in such cases? Also, while it’s good to keep enhancing punishments, how about ensuring victim’s recovery and implementing processes for swift and compassionate delivery of justice.

Grave trend

Child rights experts say they are witnessing a grave trend. They feel recent amendments to the POCSO Act, fixing minimum punishment for child sexual assault at 10 years and maximum at death penalty, are provoking the accused to murder their victims. “I am seeing more and more cases where rape and murder co-exist. Perpetrators are now murdering the victims to ensure there’s no principal testimony. Policymakers will have to look at this,” notes advocate Suneita Ojha, who’s handling cases of child sexual abuse in Haryana, including within upscale homes.

Another question to be addressed is, whether the enhanced penalties and shortened trial periods are serving as deterrents to the perpetrators. In 2018, after the Kathua and Unnao rape cases, Madhya Pradesh was the first state government to introduce death penalty for aggravated child sexual assault where the accused is someone in the position of trust or authority. 

Subsequently, the POCSO Act was amended to include death penalty for child rape and reduce the time taken for the completion of trial from one year to two months.

“Even the current timelines of completing trials in a year of chargesheeting the accused are not being met. The laws must consider pragmatic timelines so that the quality of trials is not compromised and the cases stand in appeals too,” says Bharti Ali. HAQ Centre for Child Rights was referred 10 cases of child sexual assault in 2013. All are pending disposal.

Heartbreaking tales emerge from an analysis of the law HAQ, Human Dignity Foundation and Counsel to Secure Justice conducted recently. The study pointed out lapses in the implementation of the POCSO Act, including delayed testimony and justice processes. In one case, for instance, a Delhi court ordered compensation for a minor victim of rape after she had died. Since she was never in a position to reach the court (due to multiple surgeries), her testimony was never recorded and the case against the accused, a local tantric, was compromised.

“While the law provides for recording testimonies anywhere — including homes or hospitals — the police only tend to prefer court settings,” the study records.

In another case, HAQ lost track of a Nepalese victim who delivered a baby after being raped by the owner of a construction site where her mother worked. The child’s testimony in this case came up eight months after the court took cognizance of the crime. No interim compensation was paid, though the POSCO Act gives courts a freehand to pronounce financial relief to victims.

“The child and her mother eventually disappeared from the system’s radar after the state failed them. The case drags on,” says Ashish Kumar, a lawyer privy to details.

According to HAQ’s analysis of POCSO cases it handled since 2013, the average time taken for completing a child’s testimony in seven of the 10 cases was 242 days, which is eight months as against the mandated 30 days. On an average, these cases remained pending for 69 months, which is 5.75 years, as against the mandated period of one year.

Scary numbers

52.3% Of children in India had experienced sexual abuse and 20.9 per cent experienced severe sexual abuse according to a 2007 study by the Ministry of Women and Child Development

1,64,387 Number of cases of crime against children pending trial at the end of 2015, according to the NCRB 

1,06,958 Number of criminal cases reported against children under the IPC and local and special laws from across India in 2016

36,022 The National Crime Records Bureau data shows child rape cases across India increased three fold between 2014 and 2016 — from 13, 766 cases to 36,022 cases


‘Rapists are remorseless, have poor opinion of women’

Delayed justice, psychologists say, emboldens perpetrators. Most child rapists are remorseless, carry unhealthy attitudes about sexuality and use violence as a sense of entitlement, a 2013 international study on rape by the UN showed.

Back home, counsellors point to the need for sex education from a young age for children to understand their bodies. “Most accused I have worked with have repressed sexuality and see rape as a means to explore their sexuality. Incest is common as it’s convenient to lay hands on girls in the family,” says psychologist Swarna Gollapudi, who handles POCSO cases.

There is limited research in India on the minds of perpetrators of sexual violence. A valuable insight was offered in 2017 by researcher Madhumita Pandey, who was the lead psychologist in the controversial BBC documentary on the December 16, 2012, Delhi gangrape.

After interviewing 122 convicted rapists in Delhi’s Central Tihar jail, Pandey found most rapists had poor opinions of women in general and most were remorseless. She saw a pattern of cognitive distortion among rapists who drafted their own version of the crime to justify it. Prime accused in the Delhi gang rape case, Mukesh Singh (who drove the bus to the location of the crime), told Pandey that had the victim not resisted as much as she did, he and his friends would not have “beaten her up as severely as they did”.

The victim’s intestines were ruptured by an iron rod Mukesh Singh and his friends used to violate her. But in their minds, the brutality amounted to nothing more than a “severe beating.”

Activists point to child sexual abuse underway in the confines of Indian homes as revealed in a 2007 study by the Ministry of Women and Child Development. The study had found that 53.2 per cent of children in India had experienced sexual abuse and 20.9 pc had experienced severe sexual abuse. These staggering statistics had paved the way for the POCSO Act. A lot of ground remains to be covered though.

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