Law review

Reporting child sexual abuse is mandatory under law, but the ill-equipped system often fails victims

The clause is well-intentioned but a survey revealed that 62.5% of minors who survived abuse do not have faith in it.

In June, Women and Child Development Minister Maneka Gandhi controversially stated that a law criminalising marital rape would make no difference in India because women here would not use it to file complaints against their husbands. She supported this argument by saying that the law against domestic violence already had a provision dealing with sexual abuse within marriage, which had not been used till date.

Gandhi’s view on the effectiveness of a separate law on marital rape is debatable. But it is a fact that wives do not specifically report sexual abuse by their husbands while filing complaints under the Domestic Violence Act, and it is worth asking why. Lawyers say that this is often because the women fear the possible consequences: being disbelieved by the police, humiliated in the courtroom and shamed by society, with no guarantee of a support system to fall back on.

There is often a huge gap between the way our laws are envisioned on paper and the way they are implemented. In a four-part series, Scroll.in will review four Indian laws specifically addressing crimes against women and children to better understand what ails the process of implementing well-intentioned laws. We start off with the problems surrounding a clause of the Protection of Children from Sexual Offences Act that makes the reporting of such abuse mandatory.

Lata (name changed), who sold vegetables at an urban slum in eastern India, had a predictable daily routine that everyone in her neighbourhood was aware of. She would head to the wholesale markets before sunrise and spend most of the day at her vegetable stall. A single mother, she had no choice but to leave her seven-year-old daughter alone at home.

In mid-2015, Lata returned home from work to discover that her daughter had been raped by some men in the neighbourhood. The child confided in her and a frantic Lata approached the police. But the accused were well-connected, and instead of reporting the case, the police turned her away.

Distraught, Lata faced a painful dilemma. Should she spend her time pursuing justice for her daughter, or focus on earning their daily bread? With no other support system to fall back on, she was forced to go back to work.

A few days later, social workers from Aangan Trust, a national non-profit organisation working for child rights, heard about the incident. Under the Protection of Children from Sexual Offences Act, it is mandatory for every citizen to report sexual crimes against children. Since the police had turned Lata away, Aangan workers took the case straight up to senior police officials in the zone. A complaint was finally filed and the accused arrested. But for Lata and her daughter, this, too, meant trouble.

With the accused in police custody, their supporters in the neighbourhood started threatening Lata. Sensing more danger to her daughter, she was forced to migrate to another small town. In the bargain, she lost her only means of income. In the future, even if the men accused of raping her daughter are convicted and sentenced to long jail terms, Lata knows she can never go back to her old home – the men and their supporters will always pose a risk to them.

For Deepika Khatri, a training and impact specialist at Aangan Trust, this case illustrates some of the unfortunate consequences of mandatory reporting under the Protection of Children from Sexual Offences Act.

“When this mother initially reported the crime, she was turned away,” said Khatri. “She didn’t have the option of skipping work or of leaving the community, and couldn’t do anything to get her child out of immediate danger. And when the case was filed, she was threatened anyway, and moving out wrecked her livelihood. With these levels of risk involved, for both victim-survivors and the community member who has reported the abuse, can people be expected to mandatorily report sexual abuse?”

What the law says

The Protection of Children from Sexual Offences Act came into force in 2012 to effectively address the growing problem of sexual violence against children in a country where 53% of children face such abuse. Unlike relevant sections of the Indian Penal Code dealing with the subject, the 2012 Act is detailed in its definitions of various kinds of child sexual abuse, including the use of sexually explicit language around a child and the showing of pornography to minors. This law recognises sexual abuse by people in a position of power and authority as an aggravated offence. It is also gender-neutral, recognising that both boys and girls can be victims, and that females, too, can be perpetrators.

But for most activists working in this field, the Act’s clause on mandatory reporting remains controversial. Sections 19-21 mandate that any person – including the child – with any apprehension or knowledge of an offence committed under the Act must inform the police or the Special Juvenile Police Unit. The law specifically makes such reporting obligatory for media persons and those employed with hospitals, hotels, lodges, clubs, studios and photographic facilities.

In 2013, the Union Ministry of Women and Child Development issued model guidelines for the implementation of the Act. These further specified that doctors, workers with non-governmental organisations, school personnel and other professionals are obligated to come forward with information of abuse, even if they have acquired that information through a personal, confidential relationship with the child. Failure to do so is punishable with a fine or six months of imprisonment, although this is not applicable to children.

In every country where mandatory reporting has been adopted, the impulse behind the clause has been well-intentioned. It is a means of taking action against abuse with as much immediacy as possible, preventing further abuse and helping survivors regain a sense of control. Since children may not often understand how to respond to abuse, mandatory reporting places the responsibility of action on the adults around them.

But despite the good intentions behind mandatory reporting, social workers see it as a problematic clause that is incredibly difficult to implement on the ground.

Ill-equipped system

“Inserting the mandatory reporting clause in the law simply does not work without a robust child protection system in place, which we do not have,” said Vidya Reddy, executive director of Tulir, a Chennai-based organisation that works for the prevention of child sexual abuse and the healing of victims of such abuse.

Once the matter is reported, the child is inevitably put through the wringer of the Indian criminal justice system, with all its flaws. On paper, the Protection of Children from Sexual Offences Act makes numerous provisions for dealing with abused children sensitively – medical examinations must take place in the presence of a trusted caregiver, officials from the police or other agencies must be specially trained to interview children about their abuse, the interviews must take place in a neutral, child-friendly environment and trained counsellors must be made available for the child. Most importantly, the Act mandates that a “support person” be appointed to help the child navigate the pre-trial and trial process.

The reality on the ground, however, is often very different. The police and other officials are not sensitised enough, children are probed about their ordeal multiple times, and outside of urban spaces, there is a dearth of qualified counsellors. “At the district level, the child’s statement is often taken inside the police station, or the police go to interview the child in uniform,” said Manisha Tulpule, a lawyer from Mumbai and a former member of a child welfare committee in Maharashtra’s Raigad district. This is not only intimidating for a vulnerable child, but it can also expose the child’s identity in a neighbourhood.

Another well-intentioned aspect of the Act is that it places the burden of proof not on the child but on the accused. But in practice, this can have an adverse effect. “Since abusers have to prove they didn’t commit the crime, defence lawyers may end up shredding and decimating the child in court to get their clients off the hook,” said Reddy.

All these factors contribute to a lack of trust in an inadequate system, which was made evident in a survey on mandatory reporting by the non-profit Arpan. In the survey, 62.5% of child sexual abuse survivors claimed they were uncomfortable with the mandatory reporting clause. Many attributed this to an awareness of the lack of social support after the abuse has been reported. Others were convinced that the police are not equipped to understand the nuances of child sexual abuse.

Support persons

Support persons, the essential buffer between the child and the system, are to be appointed by district-level child welfare committees but this rarely happens.

Almost anyone can be a support person – a counsellor, social worker, organisation or someone trusted by the child – as long as they are familiar with criminal and legal procedures. Social workers from civil society organisations are most likely to be qualified for the job. “But are there NGOs all over India, in every district, to be able to help all cases of child sexual abuse?” asked Atiya Bose, director of Aangan, whose staff members have often been appointed as support persons in various cases.

According to Tulpule, the police are supposed to refer each case under the Act to a child welfare committee, which, in turn, must ensure a support person is appointed in each case. “But the police don’t always report cases and often, the CWCs themselves don’t know about the provision of the support person,” said Tulpule. “At times, judges don’t allow support persons to accompany the child in court. Besides, the law says that the support person must be with the child from the pre-trial phase up to the end of the trial. But what happens after that?”

Need for healing

For children who have been sexually abused, the aftermath of a trial is perhaps of more concern than the act of getting justice through a potential conviction. This is particularly true when the perpetrator of the abuse is a relative or acquaintance known to the victim, as is the case with 95% of abused children, according to a National Crime Records Bureau report for 2015.

“For a child, stopping the abuse and punishing the abuser isn’t the only important thing – a child needs healing, security and family both during and after trial,” said Bose. If the abuser is a family member, reporting the case would mean entering the home of the child, breaking his or her family and probably putting him or her in a shelter home, which can be traumatic for the child even if the abuser is jailed.

These concerns also often prevent adult caregivers from reporting abuse that a child may have disclosed to them.

Under the Protection of Children from Sexual Offences Act, said Bose, the child’s role is often inadvertently reduced to that of a witness in the trial, helping ensure that justice is carried out. “Provisions for support and child protection have been made for the duration of the trial, and rehabilitation is only mentioned in brief,” she said. “You can’t just put in place a law without creating the environment needed to implement it.”

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Removing the layers of complexity that weigh down mental health in rural India

Patients in rural areas of the country face several obstacles to get to treatment.

Two individuals, with sombre faces, are immersed in conversation in a sunlit classroom. This image is the theme across WHO’s 2017 campaign ‘Depression: let’s talk’ that aims to encourage people suffering from depression or anxiety to seek help and get assistance. The fact that depression is the theme of World Health Day 2017 indicates the growing global awareness of mental health. This intensification of the discourse on mental health unfortunately coincides with the global rise in mental illness. According to the latest estimates from WHO, more than 300 million people across the globe are suffering from depression, an increase of 18% between 2005 and 2015.

In India, the National Mental Health Survey of India, 2015-16, conducted by the National Institute of Mental Health and Neurosciences (NIMHANS) revealed the prevalence of mental disorders in 13.7% of the surveyed population. The survey also highlighted that common mental disorders including depression, anxiety disorders and substance use disorders affect nearly 10% of the population, with 1 in 20 people in India suffering from depression. Perhaps the most crucial finding from this survey is the disclosure of a huge treatment gap that remains very high in our country and even worse in rural areas.

According to the National Mental Health Programme, basic psychiatric care is mandated to be provided in every primary health centre – the state run rural healthcare clinics that are the most basic units of India’s public health system. The government provides basic training for all primary health centre doctors, and pays for psychiatric medication to be stocked and available to patients. Despite this mandate, the implementation of mental health services in rural parts of the country continues to be riddled with difficulties:

Attitudinal barriers

In some rural parts of the country, a heavy social stigma exists against mental illness – this has been documented in many studies including the NIMHANS study mentioned earlier. Mental illness is considered to be the “possession of an evil spirit in an individual”. To rid the individual of this evil spirit, patients or family members rely on traditional healers or religious practitioners. Lack of awareness on mental disorders has led to further strengthening of this stigma. Most families refuse to acknowledge the presence of a mental disorder to save themselves from the discrimination in the community.

Lack of healthcare services

The average national deficit of trained psychiatrists in India is estimated to be 77% (0.2 psychiatrists per 1,00,000 population) – this shows the scale of the problem across rural and urban India. The absence of mental healthcare infrastructure compounds the public health problem as many individuals living with mental disorders remain untreated.

Economic burden

The scarcity of healthcare services also means that poor families have to travel great distances to get good mental healthcare. They are often unable to afford the cost of transportation to medical centres that provide treatment.

After focussed efforts towards awareness building on mental health in India, The Live Love Laugh Foundation (TLLLF), founded by Deepika Padukone, is steering its cause towards understanding mental health of rural India. TLLLF has joined forces with The Association of People with Disability (APD), a non-governmental organisation working in the field of disability for the last 57 years to work towards ensuring quality treatment for the rural population living with mental disorders.

APD’s intervention strategy starts with surveys to identify individuals suffering from mental illnesses. The identified individuals and families are then directed to the local Primary Healthcare Centres. In the background, APD capacity building programs work simultaneously to create awareness about mental illnesses amongst community workers (ASHA workers, Village Rehabilitation Workers and General Physicians) in the area. The whole complex process involves creating the social acceptance of mental health conditions and motivating them to approach healthcare specialists.

Participants of the program.
Participants of the program.

When mental health patients are finally free of social barriers and seeking help, APD also mobilises its network to make treatments accessible and affordable. The organisation coordinates psychiatrists’ visits to camps and local healthcare centres and ensures that the necessary medicines are well stocked and free medicines are available to the patients.

We spent a lot of money for treatment and travel. We visited Shivamogha Manasa and Dharwad Hospital for getting treatment. We were not able to continue the treatment for long as we are poor. We suffered economic burden because of the long- distance travel required for the treatment. Now we are getting quality psychiatric service near our village. We are getting free medication in taluk and Primary Healthcare Centres resulting in less economic stress.

— A parent's experience at an APD treatment camp.

In the two years TLLLF has partnered with APD, 892 and individuals with mental health concerns have been treated in the districts of Kolar, Davangere, Chikkaballapur and Bijapur in Karnataka. Over 4620 students participated in awareness building sessions. TLLLF and APD have also secured the participation of 810 community health workers including ASHA workers in the mental health awareness projects - a crucial victory as these workers play an important role in spreading awareness about health. Post treatment, 155 patients have resumed their previous occupations.

To mark World Mental Health Day, 2017, a team from TLLLF lead by Deepika Padukone visited program participants in the Davengere district.

Sessions on World Mental Health Day, 2017.
Sessions on World Mental Health Day, 2017.

In the face of a mental health crisis, it is essential to overcome the treatment gap present across the country, rural and urban. While awareness campaigns attempt to destigmatise mental disorders, policymakers need to make treatment accessible and cost effective. Until then, organisations like TLLLF and APD are doing what they can to create an environment that acknowledges and supports people who live with mental disorders. To know more, see here.

This article was produced by the Scroll marketing team on behalf of The Live Love Laugh Foundation and not by the Scroll editorial team.