CSA FAQ by Arpan Part 5 : Legal Intervention
Q17. Is it mandatory to report a case of child sexual abuse to the police?
Yes. Section 19 of the recently enacted The Protection of Children from Sexual Offences Act, 2012, makes it mandatory to report a case of sexual assault to the police. A circular issued by the Ministry of Educations , Government of Maharashtra also has made it mandatory for schools to report sexual abuse if any such incident of abuse is brought to their notice. Hence while conducting awareness programmes in schools or in the community, it is advisable to highlight this point so that people become aware of it and become more cautious. Also before starting a counseling session with a child at an individual level, it is advisable to inform the child about the provision of mandatory reporting so that the child is prepared.
Q18. Once the abuse is reported, what action will the police take?
If the abuser is known to the child, the abuser will be arrested. Under the new Act, POCSO, medical examination is mandatory regardless of the degree of the abuse. Both the child and the perpetrator may both be sent for medical examination. Police will also collect the clothes worn at the time of the incident as evidence. The child’s statement will be recorded. If there are other people in whom the child has confided, their statements will also be recorded. The Protection of Children from Sexual Offences Act, 2012 prescribes special protective measures while conducting investigations to protect the child during investigations. For instance, the child cannot be called to the police station for recording the statement. If the abused child is female, only female police officers must take down the statement. The statement of the victim can be taken at the residence of the child or any other place where the child is comfortable. The police officials who visit the child’s locality must be dressed in plain clothes. During the investigation and trial, the child’s identity will be protected and treated as confidential.
Q19. What is CWC and when is the child produced before CWC? What role will the CWC play in cases of child sexual abuse?
The term CWC refers to the Child Welfare Committee. The role of the committee is to investigate whether a child’s home environment is safe and if not, to place the child in the protective care of the state, by admitting the child in a children’s home. Usually when a sexual offence is reported, after the preliminary investigations, the child will be produced before the CWC. If the parents can ensure the safety of the child, the child will not be placed in a children’s home.
Q20. What are the protective measures the court must adopt while conducting the trial in a case involving child sexual abuse?
The Protection of Children from Sexual Offences Act, 2012 and rules framed under it prescribe special child friendly procedures and a special court for conducting the trial in all cases concerning sexual abuse of a child under 18 years of age.
The facility of deposing through video conferencing can also be provided to the child if the child is afraid of deposing in the court. The accused should be shielded from the child’s view while deposing. All persons including the judge, the prosecutor and the defense lawyer should not be dressed in formal court attire. The seating arrangement should be different and less intimidating than a formal court. Prior to the matter being called out, the child should be made to wait in a special room along with the support person which should be equipped with toys and refreshments and not be made to wait in the open court room. A separate entrance must be provided from this room into the court room. The child should not be made to stand in the witness box but must be permitted to sit and depose and frequent breaks should be given to the child during deposition. The child should be allowed to drink water or have refreshment during these breaks. In the event that the child is scared or is unable to depose on that day, the matter should be adjourned, but otherwise examination and cross examination of the child must be done on the same day. A counselor or a support person should be allowed to sit beside the child during deposition. Most importantly direct cross examination of the child must not be permitted. The defense lawyer must give the questions to the judge in writing and the judge must then put them across to the child in a simple and non-intimidating manner. If the child does not understand the language of the court or suffers from any disabilities or learning disorders, a translator or an expert should be provided during deposition.
These protective measures are meant to make the entire process of the trial less traumatic for the child.
Q21. What is the time frame within which the entire process will be over?
Earlier, the trial used to take around one to two years. But under POCSO the entire process is expedited. The investigations by the police are completed within three months from the date of lodging the FIR. Thereafter, the special court will take note of the case and will frame the charges under which the accused person will be tried. This is important because the punishment will be awarded as per the precise charge that will be proved. It takes about a month after completion of investigation for the trial to start.
The trial court (which is a specially designated sessions court), will try and complete the case in about two months from the date on which the charge is framed by the court. Once the trial begins, the child will be called to court once or twice to make her/his statement before the court.
Ideally, in a typical case, the entire process will be completed within one year from the date on which the first complaint was lodged in the police station. However, the law is new and the process is still gradually getting evolved since the systems are not yet in place in most courts. But in most cases which we have followed, the cases in court have been completed within six months from the time the charge is framed by the judge.
Q22. How can we address the concerns around what it means if the defendant is found guilty or not guilty?
Once the FIR is filed and the charge is framed by the court, the accused will be asked whether he/she wants to plead guilty, i.e., accept the charges against him/her. It is the usual practice that the accused will not plead guilty, i.e. deny charges, and the trial will start. At the end of the trial, the accused person will either be convicted or acquitted. This will depend on a variety of facts – the gap between the incident and when the child reported about it to elders and when the elders went to the police station and lodged the complaint. The longer the delay, the evidence that is collected will be weak and insufficient to prove the case. In most cases, it is the word of the child alone without any supporting medical or forensic evidence. This makes it difficult to prove the case of child sexual abuse. If the offender is the father or close relative or bread winner, the mother or other female members may not support the prosecution and may not come to give evidence.
We must keep in mind that our conviction rates are very low. In cases of child sexual abuse the conviction rate is only around 10% (far below the general conviction rate which is around 26 %.) So we cannot view acquittal as a clean chit to the accused or to prove that the abuse had not taken place. That will be very demoralizing for the child, who took courage to report the crime rather than suffer in silence. It is necessary to make the child aware of this. Today reporting is mandatory. But that does not mean that every case will result in conviction. But once the case is reported to the police and the accused has to face trial, the entire process itself will cause stigma to the accused person and he may not repeat the same crime again. Also the child who has reported the crime will be bolder and the family members also will be more aware.
An acquittal does not mean that the child was not speaking the truth. It only means that the prosecution (the police and the prosecutor) were not able to produce sufficient evidence before the court. A child cannot be held responsible for this and the child cannot be made to feel guilty for either reporting the crime or for not securing the conviction. The child may need further counseling in order to deal with the trauma that an acquittal may cause the child.
Q23. If the family relocates during the trial or decides to withdraw the case is it possible? Will the offender be let off scot-free in such circumstances?
Once an FIR is lodged and the investigation is complete, if the police find that there is sufficient evidence, the papers will be sent to the prosecutor and the trial will start. It is not possible to retrace or ‘withdraw the case’, since it is a criminal complaint and the prosecution is done by the state and not by the individual victim. The victim and her/his relatives are only witnesses in a criminal trial. They don’t initiate the proceedings or conduct the trial. The only way a child or her/his family deals with this is to ‘turn hostile’ in court and not support the prosecution. This means, that the parent or the child change their story while stating the facts before the judge, from what they had initially told the police. This will cause discrepancy and the judge may find it difficult to convict. There are also instances of the victim refusing to recognize the accused in court before the judge. The victim may also say that the accused person is not the one who had abused him / her and that the police have caught a wrong person. Another way of withdrawing from the case is for the parent to come to court and state before the judge that their child / ward does not wish to come before the court and record the statement.
If the victim and his/her family do not support the prosecution during the trial, it will not be possible for the judge to convict the accused. It is essential that the victim must identify the accused in court. Only under the most exceptional circumstances and when there are other eye witnesses to the incidence who are willing to come to court and state before the judge what they have originally told the judge, will the judge be able to convict even when the victim or his/her relatives did not come to court to depose or when they turn ‘hostile’ in court. In all other cases, the accused will be acquitted if the victim has not identified the accused in court.
Q24. If legal justice is not available, how can the family ensure child’s safety?
A child that has been subjected to sexual abuse needs a lot of care and very tender handling. The child should be told in advance that it is our duty to give our best for the case but that the issue of conviction and acquittal is not within our hands. It is important that the child knows that the acquittal takes place only because the prosecution has not been able to prove the entire case with supportive (corroborative) evidence. It is necessary that everyone must cooperate and that all stake holders – the police, the prosecutor, the judge etc performs their role with concern and sensitivity.