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.
“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, 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.”