Legal Eye Columns

Tough penalties will only punish the victims


When the criminal justice system offers little support or protection to victims, a stringent penalty often is yet another disincentive for families of victims

The recent judgment of Justice N. Kirubakaran of the Madras High Court in the context of child sexual abuse assumes that castration of offenders will bring “magical results in preventing and containing child abuses.” In support of his suggestion, Justice Kirubakaran states “[w]hen law is ineffective and incapable of addressing the menace, this Court cannot keep its hands folded and remain a silent spectator, unmoved and oblivious to the recent happenings of horrible blood-curdling gang rapes of children in various parts of India.”

Swagata Raha
Like the Delhi government, the Madras High Court believes in amplification of the dose before diagnosis of the problem. We need to pause and ask ourselves — can castration, death penalty, or longer prison terms really help victims heal or improve convictions?

Explaining low convictions

According to the National Crime Records Bureau data cited in the judgment, conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a measly 2.4 per cent (November 2012-March 2015). What happens after a sexual crime is reported deserves equal, if not more, scrutiny. Effectiveness and credibility of the criminal justice system depends on how it treats victims, investigates sexual offences, and conducts trials. The Madras High Court, however, did not delve into the reasons for the poor rate of conviction. Isn’t it time to question why an overwhelming majority of cases end in acquittal?

Why do victims routinely turn hostile and state in court that no sexual assault ever took place? Why do trial courts fail to consider medical evidence or inquire whether the victim has been threatened or pressured to retract? Why do prosecutors and judges seldom take any measures to build a rapport with the child victim or make her/him comfortable during court proceedings? Why is compensation rarely awarded by trial courts? The Madras High Court liberally cites from the 2007 study on child abuse by the Ministry of Women and Child Development, which revealed that 53.22 per cent of children reported having faced one or more forms of sexual abuse. A very significant finding of this report was also that a majority of the children were subjected to abuse by their uncles or neighbours, followed by friends, cousins and employers. Sexual abuse by strangers was in the minority. Imagine the plight of a 12-year-old girl, who, in the current scenario, is asked to testify against her father, the only breadwinner of the family, or an uncle or cousin? Her testimony would result in the imposition of a minimum 10-year sentence that could extend to life imprisonment. Her family would then inevitably be subjected to social ostracism, pushed into poverty and further vulnerability. Would she be more willing to testify if the punishment were death penalty or castration?

It is also counterproductive to cite the increase in reporting of sexual offences as justification for enhanced penalties. Sexual offences remain under-reported. The recent spurt in numbers can be attributed to an increase in awareness following the POCSO Act as well as the raising of the age of consent from 16 to 18 years. Preliminary findings of a study of judgments of Special Courts in Delhi under the POCSO Act by the Centre for Child and the Law at the National Law School of India University (NLSIU) Bangalore, reveals that a majority of the cases concern girls between 16 and 18 years whose disapproving families file cases against their boyfriends. Nearly all of these cases end in acquittal, as the girls state that they willingly accompanied the accused and are in a consensual relationship.

Social management

The Madras High Court judgment does offer some valuable suggestions outside the criminal justice framework such as a distinct Ministry for Child Development, compulsory sex education in schools, and amendments to visa forms to capture information about pending cases and convictions against foreigners seeking entry into India.

Prevention is an aspect that deserves a lot more attention. While efforts to amplify awareness must be encouraged, we must also broaden the umbrella of preventive strategies to include persons at risk of committing sexual offences against children. By labelling alleged offenders as monsters, demons, and barbarians, we run the risk of ignoring the need for scientific and evidence-based responses to sexual offences. Research has shown that stringent punishment is not a deterrent and this is borne out by our experience with law reform.

Any proposal to enhance the punishment for child sexual abuse cannot overlook the fact that in a majority of the cases, the perpetrators are known to the victims and is perhaps even related to them. The criminal justice system offers little support or protection to victims, who are already traumatised and disillusioned with life, and see little hope in the system. In such a scenario, a stringent penalty often operates as yet another disincentive for families of victims, who are convinced it is preferable to compromise by retracting their statement in court. We will be gravely endangering victims and aggravating their trauma by further enhancing the penalties for sexual offences. Focus instead should be on better policing and investigation, child-friendly trials, support during and after the trial, and on psychological healing.

(Swagata Raha is a Legal Researcher (consultant) associated with the Centre for Child and the Law, NLSIU Bangalore.)

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Printable version | Jan 18, 2020 5:31:21 AM |

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