When a Young Family Member turns Predator… – Ruth DSouza Prabhu

It was a night like any other when Suja* walked past the children’s room to head to the kitchen to get a glass of water. On her way back up, she heard a scuffle in the kids room and immediately rushed in and switched on the lights. What she saw is a horrific memory that will remain etched in her mind for years to come.

She caught her 15 year old nephew, who was visiting them for the summer vacation, sexually abusing her 10 year old daughter and for a few seconds was at a loss – for words and emotionally too. Rather than go hysterical, she quickly separated the two youngsters, called in her husband to help manage the situation and tried to understand from her daughter when the abuse began and why she remained silent all this time…

This is just one of the scores of incestuous cases of child sexual abuse that are constantly happening around us. Siblings, cousins, young relatives within the immediate circle of the family are often culprits.

What is a family to do in such situations, when immediate relatives and at many times, underage young adults are prepetrators of the crime. This concise guide by Suhasini Rao, a lawyer may help you in the way forward.

Some things you should know

The first thing is that legal recourse is possible in the case of siblings or immediate family members being prepetrators of CSA. Familiarize yourself with the Juvenile Justice Act, 2000 (You may find thelayman version of the act easier to read) to better understand the legal process involved in the trial of minors (persons under the age of 18 years). However, if the perpetrator is under the age of 18 years, then the trial will be held according to the provisions of the JJ Act.

Indian law does not recognise parental privilege under evidentiary law – that is, a parent can be compelled to give evidence against the child, and may be questioned about facts. The law does not recognize any particular benefit of doubt if the perpetrator is a sibling. However, sibling rivalry may always be argued in the course of a trial under the Juvenile Justice Act, 2000.

The first and only focus of a parent in a trial should be to protect the best interests of the child. A parent must always insist on having legal representation for the child apart from the public prosecutor. This legal representative must insist on protection for the child such as maintaining anonymity, ensuring medical, financial and judicial assistance. Ensuring counselling if needed.

A child above seven years of age is considered capable of giving testimony on which the court can rely. Evidentiary law is grey on the subject, however. It is always better if the child can actually appear and recount her story. Make sure the child is comfortable with your chosen lawyer. Insist that the lawyer meet the child and explain to her what the process is, what sort of questions to be expected, what is expected of her in the witness box.

The way forward

The Protection of Children from Sexual Offences Act, 2012, comprehensively deals with offences of child sexual abuse, child pornography and the violation of children’s rights. It mandates a Special Juvenile Police Unit  and a designated Special Court is granted jurisdiction over offences under this Act. These are the steps you must follow in case you are faced with CSA in your family:

Identify the criminal and save evidence

While reporting the crime to the police understand the need to record and preserve evidence. Based on the presumption that you know of the crime within 24 hours of it occuring –

  1. Talk to the child and write/record verbatim what the child says.
  2. Inform the police immediately.
  3. The police must record your complaint and provide you with an entry number for the same.
  4. If the child is capable of stating the facts, then she should be encouraged to do so. The police must record the complaint in simple terms so that child can understand it.
  5. Section 27 lays out the process to have the child medically examined. Especially for female children, the examination should be conducted by a woman doctor.
  6. You should read about the prescribed guidelines to conduct a forensic medical investigation and know that the child’s safety, health and comfort cannot be compromised by the medical examiner.

Know Your Child’s Rights

  1. Your child is entitled to separate legal representation, apart from the Special Prosecutor who will try the case. If you cannot afford a lawyer, a lawyer will be provided to you by the State.
  2. At all times, try to maintain a record of facts and events. This will help corroborate evidence if needed.
  3. Your child does not have to encounter the perpetrator while testifying in Court during trial. In fact, your child is protected from all further contact with the perpetrator by the Act.
  4. All trials of offences under this Act are to be conducted in camera. This means, trial are to be conducted behind closed doors where only those who have a direct connect to the trial may attend.
  5. Especially in offences of child pornography, your child’s identity is to be protected by the Act.
  6. Your child has the right to counseling and medical assistance.While the Act itself does not cover the right to medical assistance extensively, the State Government is empowered to establish guidelines in this regard. In any event, the right to health is now recognized as an integral part of the fundamental right to life contained in Article 21 of the Constitution of India and is actionable against the State.

The victim and the parents have to understand that irrespective of the outcome of the situation, the occurrence of the crime is not the child’s fault.

As the parent of a CSA victim, dealing with the emotional trauma of having your child be a victim of such a heinous crime is terrible enough. Knowing that the perpetrator is a close member of the family simply adds to the tumultuous emotions you feel. Seeking out emotional support for yourself may be needed and you must not hesitate to do so.

  • * Suja and her family have been created for the purpose of this case and are not based on real characters.