The Burden of Innocence 6: What The Lords Cannot See
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted by the Government of India to provide an extremely strong legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. This, while safeguarding the interest of the child at every stage of the judicial process, by incorporating child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
With 472 million children below the age of eighteen as per the 2011 Census, India had the largest population of children in the world when POCSO was enacted. Yet, with a conviction rate of less than 30%, the POCSO Act is anything but effective.
This series looks at how in practice, POCSO is simply not child-friendly on many fronts. The ecosystem is skewed in favour of the accused who walk free seven out of ten times.
“Every law has acquittals. Which law doesn’t have acquittals?” asks retired Justice of the Madras High Court, Hari Paranthaman when asked about the high acquittals in POCSO cases.
As per the latest available data from NCRB’s Crime in India Statistics report 2016, crimes such as murder (30%), rape (23.9%), rioting (20.2%), kidnapping & abduction (21.2%), the conviction rates are indeed low to very low.
But a major differing point for the above crimes from POCSO related crimes are Sections 29 & 30 of the POCSO act which prescribe that the burden of proof shall lie on the accused and not the victim, which makes conviction but a natural outcome.
Section 29 reads: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
Section 30 reads: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
A simple application of the above two sections should warrant that in cases of POCSO related crimes, conviction should be the norm and acquittals rare. The Act in itself is so designed but that is not how it works in practice.
Presumption Of Guilt Under POCSO
“Presumption of innocence is most important,” says Akila an advocate based in Chennai “A lot of acquittals happen because of failure in collecting evidence,” she says.
And it is a line which is adopted by many in the judicial system. How does one make sense of the specific sections included in POCSO Act to? Akila has a different way of seeing it.
“The need to get victim friendly procedures in place doesn’t mean giving up on procedural safeguards. The accused has a right to fair trial. We need to make sure that the process is fair. But burden is still on the prosecution to prove a crime.”
“For presumption of guilt to be applied, the prosecution has to still establish with some proof what might have happened, that a crime has been committed has to be established convincingly,” insists the Judge of a Mahila Court who decides on POCSO related case often, on condition of anonymity.
“It is usually the problem with the investigation,” is how Hari Paranthaman sees it.
“We definitely need a child friendly process but that doesn’t mean that the burden of proof should fall on the accused,” adds Akila. “Earlier it was a state vs accused scenario, victims had very little say, now victims have been given a say under laws like POCSO. We are getting there, though we haven’t reached,” she adds.
Justice K Chandru, retired judge, High Court of Madras, pegs the high acquittal rates to the difficulties in calibrating the system for a new Act. “When a new Act comes into force and if its provisions are more draconian, then it is normal for high rate of acquittals. The simple reason is, in case of conviction under such strict provisions, the judges normally tend to give the benefit of doubt to the accused,” he says.
“Both the law enforcing officers as well as the judiciary are not exposed to the new law. Finally, the corruption in the system is manipulated in favour of the well to do accused.”
But the case with POCSO seems to be much more than that of compassionate and considerate judges or inexperienced law enforcing officers alone. While the Act in itself is excellent in content as well as intent, what it fails to factor in is the ecosystem within which it is supposed to function. And the ecosystem by design defeats the very purpose of its existence.
The Judicial Set-Up
“A reason for low conviction, rather than high acquittals, is that though judges can give conviction based on medical, IO (Investigating Officer) and affected persons account alone, as mandated by POCSO,” opines a Special Public Prosecutor who represents POCSO victims in the Mahila court on condition of anonymity. “When they give such judgments, on appeal, High Court judges instead of just looking into the merits of the case, call up the lower court judges and make them attend classes saying they don’t know judgeship.”
“As long as the High Court judges do this, how will judgments be given freely?” she asks.
“The judges of the Higher Courts sermonising the lower court judges always happens,” agrees Justice K Chandru, retired judge. “Once they find that a lower court judge has committed a mistake, instead of correcting the mistake they tell them to go for orientation programme in the judicial academy. This is completely wrong and such public admonition will not help the institution.”
“It is sheer, intellectual arrogance. On the other hand, a high court judge must be a friend, philosopher and guide for the lower court judges”, he adds.
“There is no policy of giving minimum or maximum sentence by a court. Most of the time it is the media and the pressure groups which keep constant vigil on the case which finally makes a judge to come down heavily on the accused,” he validates a point raised by many others.
“Big cases do get conviction easily,” says Akila. “Cases involving rural and marginalised communities are not taken up as seriously by the civil society. Everyday child abuse crimes, so to speak, needs to be given more prominence by the media as well as the society.”
Mandatory reporting is one method mandated by the POCSO Act to ensure that abusers are held accountable. But the system has not reached a stage where such actions could be effective.
The project coordinator at Child Helpline who filed the complaint and got an FIR registered the very day in the particular case of Maina* recalls with disappointment - “Now Child Helpline does the mandatory reporting and tries to convince the families to file complaints themselves. We don’t file complaints ourselves anymore.”
It seems they have learned their lessons.
“Child Helpline Chennai receives close to 1500 calls every year and with a small staff of 12 we are stretched,” she reasons, “We deal with other cases too, not just POCSO.”
Following up on cases can be time consuming.
When children change their statements midway and the court accepts them, using them to quash cases, mandatory reporting becomes a futile and demoralising exercise.
Victim Affidavits & Quashing Of Cases
The tendency to accept affidavits of victims to exonerate the accused and acquit the accused as had happened in the case of Mayil* is troubling.
“During bail plea itself sometimes parents give written affidavit in court saying they had by mistake lodged complaint and that the accused had done no wrong. All this should never be considered, but the court considers it,” says the Special Public Prosecutor posted with a Mahila Court.
“The High Court itself quashes cases by taking victim’s affidavit,” she continues. “It is by following the precedence set that the judges here do the same.”
“What is the purpose of getting POCSO registered if it only leads to acquittal?” asks Sherin Bosko, a social activist.
In a country where the judiciary is not only blindfolded but also deaf to voices of reason, whether it will look at such criticisms constructively is anyone’s guess. If it were to listen to the murmurs on the ground, courts could well look into reining in the trend of setting bail in POCSO cases as is in practice today.
Nallamuthu’s* early bail is held up by the Inspector who investigated the case as the demoralising factor which slowly pushed Valarmathi’s* mother to compromise.
“The birth of the child and the need to meet its needs could have been an added impetus,” she reasons.
“1.5 to 1.8 lakhs - that is the amount needed to get bail in POCSO cases,” she says citing legal expenses.
POCSO is a non-bailable offence and yet most accused, with enough money to spent, get bail, sooner than later. This increases the possibilities of the survivors being pressurised into changing their stands.
“Sometimes, the survivor would not even have returned from hospital but the accused would be free on bail,” the Inspector adds. “Many victims and their families don’t know how the legal system works and assumes that the perpetrator has been let free.
The accused in turn are emboldened and starts threatening the survivors and their family who without the means to withstand the pressure, loses hope and settles; even changing statements in court,” she says.
The Special Public Prosecutor who works in a Mahila Court has a different way of looking at early bails. “Early bail is usually given in cases involving simpler forms of sexual abuse and incidents of molestation and the like. It doesn’t affect the case if you ask me,” she says.
“Bail being set early eventually leads to acquittal,” insists Sherin Bosko. She cites the case of Hasini, a 7-year-old girl raped and murdered in Chennai where the accused was given bail in 90 odd days.
He would go out and kill his own mother before absconding.
“When bail is granted early, the accused will be out for years before the case eventually comes up for hearing and the helplessness of the victims becomes acute. If the accused have repeated access to the witnesses or victims, they can easily coerce or influence them to change their stands in the court,” she says.
“Accused is presumed to be innocent as per the Indian judicial system,” says the Mahila Court Judge. “We follow the presumption of innocence,” which though is in direct opposition to the specific Sections 29 & 30 of the POCSO Act.
“There is no special provision regarding bail under POCSO like in the case of SC/ST (PoA) Act and UAPA Acts. Bail is the rule and jail an exception. What is important is an early trial and sentencing rather than denial of bail and no trial,” says Justice K Chandru.
Of course, the Indian judicial system is anything but fast and prompt.
Long Stretched Hearings
“Judgment in one particular case in which a 12-year-old was raped and murdered in 2013 was given only this year. That is 6 years for justice,” sighs Sherin Bosko commenting at the slow pace at which justice moves.
While POCSO Act stipulates speedy trials and conclusion of cases within a years’ time, it is seldom followed in practice. And it comes with consequences.
Retired judge K Chandru recounted his experience in handling the trial of the Pothumbu School incident (Madurai) where a school headmaster had sexually assaulted about 90 girls.
“Out of 40 child witnesses examined, around 15 became hostile during trial and most of the hostile witnesses had got married during the interregnum. Some were accompanied by their husbands to the court,” he said.
“If the trial is not completed within a time frame, the child may become adult in the meantime and may get married even. It will be difficult for such witnesses to speak freely about an offence committed on them after the change in their marital status.”
And often the reason for delay is a tactic employed by the defense lawyers.
“They buy time by asking for cross examinations to be done after considerable time has passed,” says the Special Public Prosecutor.
“Presently I am doing a case in which the cross-examination was requested after three years. The victim has turned hostile. They are saying we don’t want the case to continue, the girl has grown up and is reaching marriageable age,” she says.
“It should be made compulsory for the accused to be present at every hearing,” she insists.
Often the accused would get on with their lives while their lawyers move the case at their own convenient snail’s pace.
“Many a time the sole purpose to move for cross examination is to buy time. Within a speculated time if the case is not concluded, the bail should stand automatically cancelled. If this happen, the defense will not keep postponing the hearings,” Sherin Bosko says.
Given the backlogs in the Indian judicial ecosystem that may be too steep an ask.
Understaffed And Overworked Police
“They had called me after the delivery and told that they had been threatened by the accused’s family”, the officer who investigated Valarmathi’s* case recalls.
Later, after the DNA samples were taken, the son and daughter of Nallamuthu* would go to Valarmathi’s* family and beg for the case to be settled.
This too the officer was informed about. “When I did reach out, they refused to talk. A deal had been stuck by then,” she says.
“Understaffed and overworked,” were reasons she cited as to why there was a delay in her reaching out. The station with a sanctioned strength of 15 has an effective strength of 6 spread across all shifts. That means on most hours the station barely manages to have three or four officers including the Inspector herself. On days when the police have court appearances, the strength would be spread further thin.
“The police are overburdened and this affects the quality of their work. But nothing can be done about it,” says Sherin Bosko, founder of Nakshathra, a rape crisis centre in Chennai.
India’s average of 138 police personnel per lakh of the population was the fifth lowest as per a study done by the United Nations Office on Drugs and Crime (UNODC).
More than 90% of Indian police officers worked for more than eight hours a day as per a 2014 report from the Bureau of Police Research and Development. This puts considerable strain on the personnel and affects their professionalism.
Coloured By Beliefs
“I don’t suggest the victims to opt for abortion”, says the Inspector in charge of Valarmathi’s* case. “That is my personal belief. Even when I was pregnant with my third child, some people suggested I abort, I didn’t, it is a life no matter how small,” she says.
While the Inspector has her rights to hold personal opinions, that anyone holding a public office should not let those values colour their professional duties seems to be lost on the officer.
While there are definite ethical considerations to be made when it comes to a big decision like abortion, that decision should be strictly for the would be mother to decide after a careful perusal of available possibilities.
That decision should not be made by someone else, simply by virtue of holding an office of power.
On the contrary, a standard operating procedure as to what all an impregnated teenager should be let know of needs to be followed. There is a reason why provision for abortion in cases of rape exist.
But these finer details might seem first world problems afforded by luxury of thought when one sees how the survivors are treated by the system.
Life Of Survivors
While children are separated from the families in cases where the abuse is from within the family and it is deemed better to separate the kid from the environment, the kids are transferred to the care homes which are not of uniform standards.
“The Child Welfare Committee decides which facility the child would be sent to,” says Norlene.
“While a city like Chennai has 72 child care homes, the shift in lifestyle in an institutional facility can sometimes be as jarring for the child as the trauma of the incident. Some are of excellent quality but many suffer from lack of funds,” she says.
Care homes and the abuse that survivors undergo there has also been witnessed in recent years.
“Will the support system look after the child? Is the child really safe outside the family? These are questions that need to be asked and answered,” says Priya G, a psychologist. “For this an ongoing assessment has to be put in place,” she adds.
Interim Relief & Relief
An element of POCSO is the provision to provide interim relief to the victims.
“Legal Authorities Services through the Collector provides relief in cases when the victim sticks to her statement whether the case results in conviction or acquittal,” says the Special Public Prosecutor about the allowance of relief in cases registered under POCSO. But this is more followed in theory than practice.
“Even interim relief is almost never given on time,” says Norlene. Interim relief is supposed to help the victim’s family endure the initial expenses involved in the immediate aftermath of the reporting of the incident.
Final relief is supposed to provide mental relief to the victim and her family by compensating them for the crime that had been committed in spite of the state’s watch, a failure on the part of state.
With the helping hand of the state extending itself often too late, victims and their families get naturally conditioned to accept any offer that may come from the side of the accused.
Other factors that add up to this are the trauma that the victim is further put through which border on plain harassment.
Traumatic Medical Examination
“When a victim is taken to the hospital for medical examination, instead of attending to the case immediately, they are kept waiting,” says Sherin Bosko. “They are not acted on with a sense of urgency. It is the doctor’s duty, they have to be sensitive to the situation and the mental state that the victim is in.”
“Many times they are judgmental and prejudiced towards victims, especially teenagers. Sometimes they are abusive even,” she says.
An officer of an All Women’s Police Station in Chennai has this to say - “A 7-year-old victim is taken to the labour room for examination where she sees expecting mothers in varying stages of labour. It can be a very traumatic experience for any first-time visitor.”
And it is in this environment that a child waits her turn, sometimes hours, to be examined by strangers.
A doctor who handles such cases is quick to defend when asked - “We are not sitting here just to examine POCSO cases, we have pre-occupations, other work as well. Whoever is on duty attends to the case,” she adds in a matter of fact manner.
The findings of medical examinations and their admission as proof also raises problems.
Medical Examination And Evidence
“There are no external or internal injuries, hymen is intact or not intact is how Medical Examination reports are given,” says the Special Public Prosecutor who appears for victims under POCSO crimes. “But in cases when the reporting is done after a week or so, the medical examination would not be able to detect most injuries anyway.”
Blaming the doctors she adds, “The doctors doesn’t mention the tendency of the swellings and inflammations to disappear over time in their report. This gives the defense a point to ask, whether the case itself is false as the medical report doesn’t show any abuse as narrated by the child.”
“Medical reports are a very strong unimpeachable evidence,” says Akila, an advocate based in Chennai. But they are hardly consistent and frequently inconclusive. An inconclusive medical report she says “definitely weakens the case.”
“Medical reports can’t be trusted if there is a 3-4 days gap in reporting. Within a few hours if reported and examined, it can certainly be conclusive. But presently reporting happens after a considerable period of time, so most medical reports are unreliable or inconclusive. After a time the reports will only have hymen intact or hymen not intact as conclusions. That really means nothing,” says Norlene A, Project Coordinator with Indian Child Welfare Association.
A hymen is a thin fold (or folds) of mucous tissue located 1-2 centimetres inside the vaginal opening that surrounds or may even completely cover the opening. Its size and shape could vary from person to person. The old beliefs of it being seen as a proof of virginity has largely been discarded but the reliance of the legal fraternity on it hasn’t. And there are reasons.
“In the case of young children if the hymen opening is more than 1 cm and in cases of adolescent more than 1.5 - 2 cm, the evidence is in favour of abuse,” says the Manual for Medical Officers - dealing with child victims of trafficking and commercial sexual exploitation, jointly released by UNICEF and Department of Women and Child Development, India.
“Hymen intact doesn’t rule out other forms of sexual assault.”, says an experienced obstetrician. “After a period of 4-5 days, inflammations would disappear. So if a kid is brought after that there won’t be any perceivable inflammation either,” she adds.
“Lesions or other perceptible changes in shape is what is relied on,” says her colleague explaining how a conclusion is arrived at visually without any aids. “No photographic proof is kept,” she would answer. Asked if the hymen can heal itself with time, she gives a curt “No.”
But a few studies suggesting healing in children especially those younger in age do exist.
“The hymenal injuries healed rapidly and except for the more extensive lacerations left no evidence of a previous injury,” read one study.
Another study which examined 36 pregnant teenagers concluded that “only 2 of 36 adolescents had genital changes that were diagnostic of penetrating trauma. Possible explanations for the lack of genital findings include: penetration does not result in visible tissue damage, or acute injuries occur but heal completely.”
“A genital examination with normal findings does not, therefore, preclude the possibility of sexual abuse; moreover, in the vast majority of cases the medical examination will neither confirm nor refute an allegation of sexual assault.
The amount of force used will be the determining factor in such circumstances. Gross trauma to the genital and/or anal area is easier to diagnose, but healed or subtle signs of trauma are more difficult to interpret,” concluded a WHO guideline for dealing with child abuse.
“Bite marks, nail marks, inflammations and scars on private parts would disappear over time. It would of course depend on the severity of the abuse,” says the doctor.
The reason for the delay in reporting could be many. “Indian society does not nurture children to come forward and report such incidents at the earliest,” says the Judge of a Mahila Court.
“Majority of the doctors I have spoken to say not to rely on medical report alone but to go with the victim’s statement,” says Norlene.
But reliance on victims’ statements comes with its own problems as often they turn hostile.
Victims Turning Hostile
“Why would a child and their guardian who have willingly come forward and given 161 and 164 statements later say nothing happened?” Sherin asks about the tendency of victims to turn hostile during trials. “Rehabilitation & court procedures are not supportive and naturally victims and their families give up midway.”
“There are no victim protection schemes,” she remarks as the main reason behind the tendency of victims to turn hostile.
“The slow court procedures affect the morale and resolve of the survivors to fight for justice. Once a case is registered and 164 or 161 statement is taken, it takes a long time for the case to come up for hearing even,” she adds.
“In between the accused gets bail and roams free before their eyes. Victims and their families see this and think they must have been set free. Sometimes, by the time a case comes up in court, the child would have grown up or other developments would have taken place. The initial urge to convict the accused is lost.”
“What really happens is that the witness may not even know what was written by the police when they record the statement under section 161 CrPC,” says Justice K Chandru commenting on why victims and witnessed turn hostile often.
“When they really tell the court as to the real nature of incident, there is always a discrepancy between their statement in court and statement recorded by police. Even for other reasons, the witnesses (including the victims) may sing a different story,” he says.
“One way in which this could be resolved could be by conducting a simultaneous collection of statement or testimony of the victim by all concerned,” said Norlene, Sherin as well the Inspector on different occasions.
Presently, a victim has to narrate an incident 6 times before the system before a final judgment is given.
Starting from the police station the child has to narrate the incident once in the hospital during medical examination, then to the psychologist, followed by during the procedure to record the child’s statement under section 161 or 164 and in the court twice, once during chief examination and later during cross-examination by the defense lawyers.
“It is called secondary victimization,” says the Judge heading one of the Mahila Courts which decides on POCSO cases.
“A model district model has to be adopted in India where a multi-disciplinary approach is put in place and later the model could be adopted elsewhere,” suggests Norlene.
“A multi-disciplinary approach is definitely good,” says the Mahila Court Judge. “But for that the Evidence Act has to be amended first.”
“It could end the tendency of secondary victimisation in such cases,” he agrees.
When the medical report is not conclusive, when the victim cannot be consistent in her/his account for various reasons, the Special Public Prosecutor is the only person who can stand between the accused and the law.
If the Special Public Prosecutor puts the foot down, no defense lawyer can get away with an acquittal without proving innocence of the accused as mandated by the law.
“The Special Public Prosecutor’s job is something where people can make a hell of a lot of money. The accused are willing to throw everything at them. They are always willing to pay,” says Sherin.
“Public Prosecutors’ duty is to talk for the victim but they are hand in glove with the defense lawyers many times,” she adds. “Inspite of such high rate of acquittals, the Public Prosecutors are never held accountable.”
“All of the negotiations and settlement talks between the defense lawyer and the victims and their families takes place within the court premises. They have the guts to do that. That is how openly they act,” she adds.
“Court has a duty to look into the cases of child abuse and rape with compassion. The High Court has to question why conviction rate is low in Special Courts,” she says.
“What happens in other criminal courts is expected to happen in Mahila courts also,” says Justice K Chandru, retired judge, Madras High Court. “Negotiation and settlement in criminal matters starts with police station as a first place. Then during investigation. Thereafter during trial and finally at the time of delivery of judgment,” he explains.
The POCSO act in itself is very good, agree all involved, but the ecosystem needed to make it work well does not seem to exist as yet.
The police stations, courts and hospitals we visited are all in Tamil Nadu, a state which is by no means a mediocre one when it comes to relative law and order conditions in India.
“In cities the conditions are still okay but in the more rural areas, where there is less public oversight, acquittal is the norm,” says Sherin.
And it is in a small district town far away from the city of Chennai that the case of Valarmathi* is being heard. Irrespective of the outcome of the case, after a careful perusal of the workings of the ecosystem in which POCSO Act works in, it will be safe to say that the only immediate solution to ensuring justice would be to sensitise children to make them confident enough to report incidents promptly.
As for the systemic changes in approaches suggested to simplify the system and make it victim friendly, they may as well never arrive.
It will be in everyone’s interest to peruse for themselves as to how the law and order system works so as to be better prepared.
Media could help to this end by highlighting the provisions and informing the public about the necessary information. Kirthi Jayakumar has a few words when it comes to broaching the topic with children.
“Parents should encourage their children to name their body parts,” she says. “Not naming them as normal body parts sends a message of shame and covertness, which enables silence around those body parts and anything that happens to them. It's okay for your child to learn what a penis is, what a vagina is, and what breasts are.”
“If you don't name these body parts, and instead silence them when they talk about these body parts, they can't find a trusted adult in you to come up and tell you if something has been done to them in these body parts. Perpetrators thrive on silencing survivors, and the easiest way for them to do that is to play up the shame associated with particular parts of the body.”
Creating an environment in which a child can walk up and talk about sexual abuse and violations is the best solution that the society can offer.
“While a law like POCSO exists, support from the society has to change to make it effective,” says Priya.
“POCSO if implemented properly will be more than enough,” insists Sherin.