3. Health and Child Sexual Abuse

Contents

Introduction ...... 2

Objectives ...... 4

Session Wise Summary of the Event ...... 5

Day One: Session – 1: Inaugural Session: ...... 5

Day One: Session – 2: Intersectionality and Vulnerability to CSA: ...... 11

Day One: Session – 3: Recommendations Based on Empirical Studies: ...... 16

Day One: Session - 4: Implementation of the POCSO Act ...... 24

Day One: Session - 5: The POCSO Act - Perspectives from the Judiciary ...... 29

Day Two: Session - 1: Litigating POCSO ...... 31

Day Two: Session - 2: Health and Child Sexual Abuse ...... 38

Day Two: Session - 3: The Rehabilitation and Restorative Care ...... 44

Recommendations Based on the Issues Raised in the Two-Day Consultation Event ...... 48

1. Support and Protection of Children from Sexual Abuse...... 48

2. Pre-trial and Trial Stage ...... 49

3. Health and Child Sexual Abuse ...... 51

4. Ambiguities in the Letter of Law ...... 52

5. Overall Remarks & Suggestions...... 53

Recommendations for Amendments in law and Executive Measures – A Practical Approach ...... 55

Recommendations for bringing Amendments in Law ...... 55

Recommendations for Bringing Change Through Executive Action ...... 58

Conclusion ...... 62

Introduction

In 2012, the Parliament of India enacted the Protection of Children from Sexual Offences Act (“POCSO Act”) to protect our children from the increasing prevalence of child sexual abuse and to provide a child-friendly system for trial of the offences. However, over the past few years, various lacunae in the implementation of this Act has become apparent, e.g. low conviction rates and pendency of cases.

As per the information collated by the National Commission for Protection of Child Rights (“NCPCR”), 45,498 cases have been registered under the POCSO Act, 2012 between November, 2012 to March, 2015. Out of this, 4316 cases are pending with the State Police for investigation and 35,700 cases are pending before Courts for trial. The overall conviction rate of cases registered under POCSO rests meagrely between 7-16%.

In light of these lacunae, the National Coalition to Protect Our Children (convened by Mr. Rajeev Chandrasekhar, Member of Parliament) organised a two-day National Consultation on the POCSO Act at the National Law School of India University, Bangalore on February 04 and 05, 2017. The event was facilitated by Centre for Child and the Law, NLSIU.

The representations in the event were from the Ministry of Women and Child Development, Government of India; National Commission for Protection of Child Rights; Assam State Commission for Protection of Child Rights; Karnataka Commission for Protection of Child Rights; Delhi Legal Services Authority; Karnataka Legal Services Authority; Majlis Legal Centre; Bachpan Bachao Andolan; Tulir; Rahi Foundation; SCAN Goa, HAQ Centre for Child Rights; CCL – NLSIU; CCR - NUJS; Aarambh India Initiative; Enfold India Trust; Vydehi Institute of Medical Sciences and Research Centre; Enfold Proactive Health Trust; National Institute of Mental Health and Neurosciences; representatives from Ramaiah Hospital; The Foundation; Enfold; Faith Foundation; UNICEF; Counsel to Secure Justice, Delhi; Child Welfare Committee; former and acting judges of Special courts and city civil courts of Assam, Mumbai, Bengaluru and others; Special Public Prosecutors; Amicus Curiae; and Advocates working in the field of child rights.

The influencers met on one platform and discussed the ways in which problems of child sexual abuse can be addressed and pointed at the apathy of authorities responsible for the implementation of the POCSO Act. The purpose of holding of the two day POCSO Consultation is to provide a platform for stakeholders – the judiciary, lawyers, medical professionals, social workers and support

2 persons, to share experiences, to voice concerns and suggest required legal changes, and share best practices in making effective use of the POCSO Act; to identify and define issues and gaps in the legal provisions as well as the implementation of the POCSO Act; to formulate recommendations for amendments to the POCSO Act; to formulate recommendations for improved mechanisms for effectively implementing the POCSO Act; and to address the issue of overlapping vulnerabilities and account for intersectionality in the institutional response to cases of child sexual abuse.

Crimes against children are the worst forms of cruelty, especially because they violate the basic trust and care that a child expects from an adult. Concerned over the growing danger of abuse to young children and lack of child safety in India, National Coalition to Protect Our Children (“NCPOC”) invited people from different spheres who gathered in the two-day consultation programme on Protection of Children Against Sexual Offences Act, 2012 to discuss about how to create safe environments for children and for those who have been victimised.

A three-pronged approach to tackling the malaise of Child Sexual Abuse, through increasing Accountability, bolstering mechanisms for Prevention, and ensuring swifter Prosecution is the need of the hour. To achieve this purpose, the two-day event was held in NLSIU, Bengaluru.

Objectives

Daily news is rife with stories of children being neglected and abused. Lakhs of children are robbed of childhood and our nation is doing little to remedy that. While government now acknowledges education and nutrition as essential entitlements of children, there have been little initiatives for protection of their most fundamental right- their safety. Child protection needs to be on the nation’s radar. To achieve this purpose, over 40 experts from more than 10 states in India including Karnataka, Tamil Nadu, Kerala, Assam, Maharashtra, Delhi and Goa gathered along with judges of the special courts under POCSO Act, the chairperson of the NCPCR and the Joint Secretary of the Ministry of Women and Child Development, Government of India gathered at the two-day consultation event. The hon’ble members deliberated over the two-day Consultation on The Protection of Children from Sexual Offences Act, 2012, with the following objectives in mind:

1. Recommend Amendments to the Protection of Children from Sexual Offences Act, 2012;

2. Recommend Best Practices that stakeholders involved in the Child Sexual Abuse (“CSA”) response - police, medical personnel, forensic experts, investigating officers, social workers, lawyers, judiciary, can adopt to improve their interventions;

3. Recommend to the state and central Governments to recognize CSA as a priority and improve their response to the malaise; and

4. Give true meaning to child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences, trial in-camera and without revealing the identity of the child through designated Special Courts and the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child's medical treatment and rehabilitation.

With the above objectives as priority, the members met and deliberated upon the issues of child rights.

Session Wise Summary of the Event

This section covers the issues and recommendations elaborately discussed by the participants of the Consultation event in each session of the two-day consultation programme. It becomes pertinent to understand the background in which the opinion of the speakers is based.

DAY ONE

Day One: Session – 1: Inaugural Session:

1.1 Speakers:

A. Ms. Flavia Agnes, founder of Majlis, a Mumbai-based women’s rights organisation. B. Mr. Rajeev Chandrasekhar, Member of Parliament, Rajya Sabha. C. Ms. Rashmi Sahni Saxena, Joint Secretary, Ministry of Women and Child Development, Government of India

1.2 The start of the two-day event was with a welcome address by Professor V.S. Elizabeth which was then followed by a speech from Ms. Flavia Agnes and Mr. Rajeev Chandrasekhar. The event was divided into eight sessions which discussed intersectionality and vulnerability to CSA, detailed empirical studies of several states like Mumbai, Assam, Goa, West Bengal, etc.; judicial perspective from the influencers belonging to the legal sphere, implementation and gaps by the activists, NGOs, etc. This report elaborates the issues and recommendations provided by the influencers and the session wise discussion in the POCSO Consultation Event.

1.3 Ms. Flavia Agnes, founder of Majlis, a Mumbai-based women’s rights organisation, said that the efforts of women’s rights movement led to a significant change in the law against rape and sexual assault. There is a connection between the issue of CSA and domestic violence against women as the way women are viewed within the family and in the society, deeply influences the way the children are looked at. Citing the example of the infamous case of Tuka Ram and anr. vs State Of Maharashtra1 where Mathura, a young tribal girl, was allegedly raped by two policemen on the compound of Desai Ganj Police Station in Chandrapur district of Maharashtra, she said it is unfortunate how the judicial system looks at a woman. In the

1 AIR 1979 SC 185

present case, what followed a long trial was the Supreme Court acquitting the culprits saying that Mathura raised no alarm; and also, that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape. The judge noted, “because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her”. A huge public outcry and protest followed, which eventually led to amendments in Indian rape law through The Criminal Law Second Amendment Act, 1983 (No. 46). The Criminal Law Amendment Act, 1983 inserted Section 114A in the Indian Evidence Act, 1872 (IEA) which created a provision for presumption of or the absence of consent in cases booked under Section 376(2) of the IPC, 1860. Ms. Agnes expressed disappointment at the way the character of a woman is looked at by the judicial system and the police. There is a clear lack of understanding about whether the consent was free or was vitiated due to the position held by the culprit.

1.4 Many a time, a woman’s involvement in romantic relationships prior to the incident of rape with the accused, favours the accused leading to his acquittal. There could be a great number of situations where the women may not have given the consent for the acts of the accused but such a situation is rarely contemplated upon by the judicial and investigative mechanisms. Another issue which she pointed out was the lack of choices with the women about their own sexuality. To be considered worthy of being given the status of a victim and be given justice, she should be a ‘virgin’ and ‘chaste’. It is unlikely for a woman to get the judicial and investigative bodies sympathise with her if she has had prior consensual sex.

1.5 Rampant cases of women and child abuse in shelter homes and under police custody, and cases of women giving consent because the accused held a position of power, led the legislators draft sexual abuse laws where there was a presumption of guilt on the accused. It is now upon the accused to establish his innocence in a case of sexual abuse as against the rule of presumption of innocence. The adoption of this exceptional rule enabled the women and children come out and report the crime that they were a victim of leading to an increase in the number of complaints being lodged.

1.6 On the flip side, the rate of conviction is steadily going down. After the rape, the victim is expected to approach the Police station and lodge a complaint. Most often, the victims are unaware of the legal procedures and are in a state of shock and unable to come out and complain about the incident which leads to losing of crucial medical evidence. This is often

why rape cases are weak since in the absence of medical evidence, it boils down to the statements alone. Ms. Agnes said that it is not necessary that for an acquittal, a woman is to blame. There are several factors for determining whether a trial ends in conviction or acquittal. Many a time it is the system which often does not appropriately respond to the victims of abuse, right from the investigating agency to the judges and the medical support staff. Such apathy leads to low conviction rate and not the filing of false cases. Cases involving incest are the most difficult of the cases as often the women or the children will not be able to muster the necessary courage to report the matter instantly. When she finally does, the time gap makes the crime seemingly less credible. The accused reaps the benefits of absence of medical evidence due to the time gap and get acquitted.

1.7 It is not necessary that sexual assault can exist only when a woman suffers from grave injuries and exhibit signs of protest made during the infliction of pain; even when there is no injury or gruesome violence, there is a high possibility that she has been raped. The system fails to consider the mental shock and the inability to revolt when the perpetrator was a known person. Hence, leaving less or no signs of violence. The Nirbhaya case is an example where the girl suffered great violence at the hands of the perpetrator and hence the case was given credibility. Most of the other cases where the woman does not suffer violence or injury, unfortunately fall into that category of cases which do not invite empathy. There is a suspicion towards the woman and child, in relation to their sexuality, when we talk of abuse. As girls get older, the suspicion increases because the chances of them giving consent increases. This, nevertheless, does not necessarily imply that she ‘actually’ did give consent. Such cases, therefore, result in acquittal of the accused. Ironically, sensitivity arises only when there is evidence of grave violence being meted out to the victim. Therefore, the sensitivity of the judiciary and every stakeholder must increase.

1.8 With the development in the law we find that the law has found ways to deal with the convict but the mindset that operates with every stakeholder at every stage has not undergone major change. Cases of abuses in shelter homes, prosecution questioning the veracity of the victim’s version of the case, lack of responsiveness of the investigating authorities and the continuous shifting of blame from police to prosecutors to judges impede conviction of the culprit and bring the rate of conviction further down.

1.9 Experience of the people who have worked with the victims of child abuse suggests that the mother of the abused child may initially be willing to file a case but when she finds herself with lack of resources and unable to feed the children, she turns hostile. The dependency of the family on the abusive male member or the father for fulfilling basic requirements of food, shelter and clothing make people succumb to the pressures and retract on the statements made earlier. The abusive father now abuses the mother further. The authorities, unable to understand the predicament of the family, tries the mother for perjury if she turns hostile. The misery for the child and the family is never ending and it goes on in a vicious circle. Ms. Agnes recommended that unless proper support to the mother and child is provided and unless the problem of domestic violence is taken care of, the interlinked problem of child sexual abuse cannot be aptly dealt with.

1.10 Mr. Rajeev Chandrasekhar, Hon’ble Member of Parliament, sharing his experiences on the matter said that there is a mysterious and shocking lack of awareness. Some cases are genuine but some are deliberate. There is a conspiracy of silence, where the parents are fearful of reporting abuse and the authorities encourage this silence by their apathy, which only encourage continued abuse. In early 2014, a mother of a 2-year-old child raped in school, approached Mr. Chandrasekhar. As a quick action, he spoke to a local minister and the response he received explained to him the apathy and the instinct to brush things under the carpet when it came to child abuse.

1.11 He observed that even when there is a fast track process envisioned under the POCSO Act, the callous delay and inactivity to quickly dispose the matter goes on to show that there is a gap between the intentions of the Act and its implementation. Further, the low conviction rates perpetuate the myth and fiction that reporting of crimes is the outcome of the imaginations of the minds. But the fact remains that low conviction rate is due to the callous nature of the stakeholders and the authorities.

1.12 Mr. Chandrasekhar insisted on the need for carving out child-friendly zones in courts and police stations. The process of taking evidence should be child-friendly and so on. Special attention should be paid to special kinds of cases, for example, crimes against children within the family needs a fully equipped judicial, investigative and support machinery as opposed to the cases of accused being outside the family where the family plays a major role in the

rehabilitation of the victim. The dynamics in each case differ and the mechanism should be responsive according to the needs of the case.

1.13 We also need to look at the ways speedy justice can be a delivered to the victims. Opening more courts is not an option, we should consider re-distributing the burden on the existing courts. The special courts should be made more exclusive and we must find more realistic goals to deal with the issues related to CSA. Thus, there is a need to stand up for the rights of children as the community of the children is the only one which cannot effectively organise a rally and demand what is rightfully theirs. Therefore, it is incumbent upon us to defend the right to life under Article 21, that accrue to children.

1.14 Ms. Rashmi Sahni Saxena, Joint Secretary, Ministry of Women and Child Development, said that the ministry has been working very hard in collaboration with National Commission for Protection of Child Rights for making the life of the victims better. She highlighted that there is a collective effort to increase awareness on the issue of CSA among the general masses. The outcome will depend on the sensitivity and commitment of the stakeholders towards addressing the pain of the victim. It is necessary that efficient and honest utilization of the funds and facilities provided by the government takes place to cater to the needs of the victims. Citing an example, she said that there is an underutilization of standardised medical facilities being made available and often the implementation of the law is only on paper. Requesting the various stakeholders to be empathetic and available for the needs of the victim, she urged them to implement the law and use the facilities not on paper but in true spirits. Ensuring the efficient utilization of available facilities is the biggest challenge faced by the ministry now.

1.15 Pointing out at the issue of lack of sensitivity among the judicial and investigative mechanism, she expressed grief on the result of a statistics presented by National Crime Reports Bureau which stated that out of 94,172 cases registered as crimes against children in the year 2015, 14,913 were registered under POCSO Act, 10,854 cases of rape under Section 376 of Indian Penal Code, 1860. Countless other cases of sexual nature were registered. These statistics are only of those incidents that are reported, there are many cases which are not reported.

1.16 To bring the conviction rate higher and punish the perpetrators, Ms. Saxena suggested that the attitude of ignoring child’s evidence/statement for being less credible, should be done away

with and due importance and credibility should be given to the statements of the children. The abusers often use their position of power, their age difference, intellectual or physical development, relationship of authority over child or child’s dependency over them to their advantage. Cooperation of the entire society is needed to help the victims and their families get out of the mental agony and trauma.

1.17 Criticizing the lack of choice with the youngsters about their sexuality, Ms. Saxena said that we need to look at the difference between the exploration of sexuality by youngsters and the criminal intent behind such exploration. Consensual sexual activities should not be penalised as they were not done with a criminal intent. She concluded by saying that it is important that everyone involved thinks of these victims as their own, and takes a stand for them.

Day One: Session – 2: Intersectionality and Vulnerability to CSA:

2.1 Speakers:

A. Mr. Dhananjay Tingal, Executive Director at Bachpan Bachao Andolan; B. Ms. Gita Aravamudan, renouned journalist and author; C. Mr. Emidio Pinho, Advocate, SCAN, Goa- based child welfare group; D. Ms. Vidya Reddy, Executive Director of Tulir, a Chennai based NGO.

2.2 The panel for this session addressed a wide range of issues. The discussion covered issues from - accommodating needs of children with disability by improving criminal trial and rehabilitation process through the different stages of trial, dealing with cases of incest, vulnerabilities associated with the breakdown of social bonds due to migration and exploitation of such children, how overlapping vulnerabilities put children in danger, the role of internet and how the law can address these issues including the role of modern day media. To adequately address the human rights concerns of children who experience discrimination on multiple grounds, it is necessary to have a comprehensive understanding of the concept that covers the different forms of intersectionality in effect, in each context.

2.3 The child sexual abuse is an under-reported offence in India, which has reached epidemic proportion. A person sexually abuses a child when he or she exposes the child to sexual acts or behaviour; that child may experience a variety of short and long term reactions because of that abuse. Many children who experience sexual violence show physical, emotional, sexual, or verbal signs of abuse. These effects can lead to long-term stress and hardship for the child well into adulthood, and often cause concern for parents, teachers, and other caretakers.

2.4 Mr. Dhananjay Tingal said that children, in general are vulnerable- every child must be given importance rather than dividing into categories depending upon their vulnerability due to disability or gender. He laid emphasis on the convergence of various laws in force like the JJ Act and POCSO Act, IPC etc. to better deal with the situation and properly train the stakeholders to deal with the cases of CSA where there is a clear lack of knowledge of the child laws among the lawyers and police of remote areas. He also raised the question of accountability of responsible stakeholders in the situation where the cases are not concluded within a time frame of three months. A public interest litigation had been filed by Bachpan

Bachao Andolan on the same question which is still pending in the Supreme Court. He also questioned the efficacy of the Information Technology laws and safety of children over internet because we see numerous cases of child pornography, abusing children through a practise of child grooming over internet and later subjecting them to abuse and other such incidents.

2.5 Different laws are applicable in situations where the child has suffered different kinds of atrocities and hence due to lack of convergence of laws, the conviction rate is abysmal. Mr. Tingal cited various examples which point out towards the glaring insensitivity among the stakeholders. If a child has been missing, a case is lodged and when he is found it gets shut. The investigating agencies hardly bothers to inquire whether the child has suffered any sexual abuse or not. Children working in the dhabas for e.g., are at a great threat of being molested and many have been but again such cases are hardly reported or investigated.

2.6 Mr. Tingal criticised the lawyers who were not sympathetic towards the abused child and were unable to tackle the sensitive situation in the right manner. It is important to understand that an abused child requires special attention. The dependence of children on the adults makes them the vulnerable lot and thus a holistic effort from the stakeholders becomes the need of the hour.

2.7 The media is a powerful tool and plays a significant role in forming and influencing people’s attitudes and behaviour. The media can focus attention on child abuse through debates, talks and campaigns to influence government policy as well as public opinion. Reiterating the point presented by Ms. Flavia Agnes, Ms. Gita Aravamudan, said that children and women are part of the same group. She discussed the role played by the media in bringing sensitive issues like child sexual abuse in light and forcing the stakeholders to take steps to bring the culprit to justice. The media’s biggest contribution lies in demystifying and removing the secrecy surrounding the topic of child abuse and neglect. A coverage of one incident can have a wide impact and encourage other victims to come forward. On the other hand, the limelight erodes the protection of identity of the child which later exposes them to more threats of CSA, entangling them in a web of complexities. Therefore, while the media must report all cases of abuse, it must do so with sensitivity and care so that the child is protected from further stigma and its right to privacy and dignity is respected.

2.8 Citing the example of cases where an abusive teacher who is let out on bail comes back to the same school, which is to the horror of all the girls who were abused by him. Nobody is informed by the police that the abuser has been let out on bail and the school admits him back. The media, in such situations can play a significant role in bringing the abuser to justice, creating pressure on the authorities to reconsider their act of letting him out on bail or re employing him in the same school. It could deteriorate the already bad situation of the children making them vulnerable to revictimization.

2.9 Ms. Gita Aravamudan spoke about the incidence where a set of ethical hackers took down several websites comprising child pornography. She commented that most pornographic material present on websites can be labelled as revenge pornography. Revenge pornography can be defined as an act whereby the perpetrator satisfies his anger and frustration for a broken relationship through publicizing false, sexually provocative portrayal of his / her victim, by misusing the information that he may have known about the victim. He does this to publicly defame the victim. 2 Many children become a victim of revenge pornography and are completely unaware of the content which is posted on the internet. The perpetrator’s identity is completely hidden. This poses the question of safety over the internet and calls for a robust mechanism to deal with the issue.

2.10 She suggested that since we are more aware because of the media, we must take more steps towards fighting this menace of child sexual abuse. The existing complexities should not deter the authorities from approaching the matter with iron hands and making strong IT laws.

2.11 Mr. Emidio Pinho , having worked extensively in the field of child sexual abuse stated how Goa, a tourism state witnesses a lot of victims who are tourists. He cited an example of a 9- year-old Russian girl who was sexually assaulted by a traveller from U.P. and the lower court acquitted the accused on two counts- one, the sketch given by the victim did not match with the accused and two, the injuries on the labia majora, the private part of the victim, could also occur due to falling. The case went in appeal but the accused committed suicide, which put an end to the trial.

2 Halder, D., & Jaishankar, K. (2013). Revenge Porn by Teens in the United States and India: A Socio-Legal Analysis International Annals of Criminology, 51(1-2), 85-111, 2013

2.12 He observed that the criminal justice system is more inclined towards the accused than towards the victim and if the enforcing authorities are made accountable then that would come a long way in curbing such incidents.

2.13 He presented the Goa model, which endeavours to make the journey of the victims less traumatic than it already is. In Goa, the Goa Children’s Act, 2003 overrules POCSO for certain offences. Section 42 of the Goa Children’s Act provides imprisonment from 10 years to life for grave sexual assault and 7 years to life for penetrative sexual assault. There is a well-run, functional and active Victim Assistance Unit, Socio-legal Cell at JJBs, Going to Court Program, Special Children’s Court, juvenile / child welfare police unit in each police station for the State of Goa.

2.14 Lacunas such as delay in filing of the charge-sheet by the Police; male doctors conducting the examination of the victims; children’s court being irregular and other such episodes leads to low conviction rate and acquittal of the accused. Mr. Pinho gave the example of the Victim Assistance Unit set-up by SCAN in April, 2014 which works 24 hours a day, 7 days a week; has 4 members at any given time to cater to the need of every child who encounter the criminal justice system and not just the victims of CSA. The statements of the children were recorded in presence of members from the unit. The members would accompany the child during the visit of the crime-scene, and the complete documentation is done by the members of the unit. In case of grave or penetrative sexual assault, the victim comes to the Centre where complete care is provided. The Centre has one room each for counselling, medical examination by lady doctors, rest and to provide socio-legal assistance respectively. Pre-and-post deposition counselling is provided and every victim is given special care as per the need of the case and regular follow-ups are being done by the unit.

2.15 He presented an ambitious yet realistic future to have a police unit at the Centre to address the issues. Talking about how the Juvenile Justice Committee functions in Goa, he said that there is only one juvenile in the observation home, rest all of them are monitored by the juvenile socio legal cell where admission to the observation home is done only after the assessment by the unit. 99% cases children are produced on the day of the sitting and through follow-ups, final report is prepared within one month. The unit takes care to have the child enrolled for education and so on.

2.16 Mr. Pinho spoke about the “Going to Court Programme” where it was permitted by the director of prosecution and Directorate of Women & Child Development, to train 30 law students who would help the victim refresh their memory, accompany them to court and be with them during depositions. SCAN conducts quarterly meeting with these students to take a stock of the progress made by them.

2.17 SCAN further lobbied for a permanent judge and that victims be called only in evenings for depositions, have two full time public prosecutors and speedy disposal of the 580 pending cases. Further, an initiative of setting up of a special juvenile police unit in each police station where there would be three dedicated officers at each police station, 1 PSI, 1 lady head constable and one constable. This was possible due to SCAN interventions. These measures went a long way in curbing and addressing the problems of CSA in Goa. Such a model can work wonders if adopted in each state with the help of proactive stakeholders.

2.18 Child rights activist, Ms. Vidya Reddy said that technology was having an influence on increasing child abuse. She said that rapists are discovering and validating each other on the internet. She gave an example of a Facebook page where innocuous images were posted in a group and the members were asked to comment, where most outrageous graphic comment said ‘what would you like to do to her?’ A google trends analysis indicated that searches for ‘teen porn’ more than trebled between 2005-2013. Total searches for teen porn reached 5,00,000 daily in 2001. Child-porn is a multi-billion-dollar industry, anywhere between $3- $30 billion, though a clear, reliable figure is not available.

2.19 Secondly, it is almost impossible to limit children’s access to what they see on the internet. But where we have failed is to give young people the understanding and wherewithal to navigate their way through this information. They are the only ones in control of their lives. Citing the example of the modules relating to personal safety and health education in the UK where the children are educated about what constitutes pornographic material and pornography, what it meant and how it was harmful so that the children do not grow up believing them to reflect reality! she argued.

Day One: Session – 3: Recommendations Based on Empirical Studies:

3.1 Speakers:

A. Ms. Audrey D’Mello, Programme Director at Majlis, a legal and cultural resource centre B. Ms. Sana Siddiqui, HAQ Center for Child Rights. C. Swagata Raha, Centre for Child & Law D. Gargi Banerjee, NUJS E. Ms Arti Gore (Aarambh India Initiative)

3.2 The panel discussed the issues/ challenges and recommendations based on studies undertaken in Delhi, Assam, West Bengal & Mumbai. The panel consisted of researchers/ agencies who have undertaken studies in different parts of the country except for Karnataka.

3.3 Studies have been undertaken in different parts of the country on the implementation of the POCSO Act, analysis of the legal enactments and challenges faced by the victims and other stakeholders when it comes to incidents of child sexual abuse.

3.4 Ms. Audrey D’Mello, conducted research in Mumbai and shared her experiences, pointed out the challenges and gave recommendations. It is never easy for a victim, be it during or after the crime that was perpetrated. The struggle and the daunting task often fails to reach the conclusion and many victims of such heinous crimes as child sexual abuse give up in the struggle. Ms. Audrey narrated the incident where a 4-year-old was raped by a watchman and hence started the mother’s struggle with the criminal justice system. The callous attitude of the police and then of the judiciary was appalling. The Sakshi guidelines3 of 2004 stipulate that in cases concerning children, the defence lawyer must first submit the questions in writing to the judge, and the judge, at his/her discretion, ask only those questions which are relevant to the incident. But these guidelines are seldom followed and the victim is rattled with uncomfortable questions. It was after a huge amount of struggle that justice was provided. We have also witnessed shocking instances of judges, under the compulsion of having to complete the trial within the stipulated time frame, and in the absence of the defence lawyer, asking the

3 Sakshi vs Union Of India, 2004 Supp(2) SCR 723

accused to come forward and conduct the cross-examination. This was in gross violation of the stipulation that the victim should not ever be made to face the accused during her deposition, and that a screen or a one-way mirror should be installed to shield her from the intimidating gaze of the accused. Such violations of the guidelines happen in several other cases.

3.5 Majlis, as stated by Ms. Audrey, started a programme called ‘Rahat’ which had more outreach. It dealt with domestic violence and the victim approaching the court when she is ready. It becomes important to understand that the victims of rape are much worse in condition than any other. It is almost by chance that these cases get reported – for example – when a pregnancy is detected, when there was some fight in the household and in the process the story comes out. Then the victim must travel the disconcerting path of the criminal justice system where she suffers a second round of horror. Rahat, therefore works towards ensuring that the victim has support and dignity at every stage of her struggle.

3.6 Ms. D’Mello recommended that every case should be looked at from the purview of the victim and not by her age, caste, religion etc. The kind of support that a victim may require depends on who the accused was. For example – if the accused is a father, the level of support required is of a guardian / family which would help her complete her studies and earn a livelihood, etc. If the accused is a stranger, she may need the legal help if her family is supportive of her. Similarly, there could be different kinds of accused like a friend, colleague, family member, employer, etc. Based on such an understanding of each case, the one-stop centres should function.

3.7 Majlis studies the judicial and investigative mechanism on one hand and studied the judgments on the other. The police will record the First Information Report based on what would work in the Sessions Court and the judges would record those parts of the trial in their judgment which have helped them draw the conclusion in that particular case. Such biased methods should not be encouraged at any step. She further recommended that the famous case of Delhi Domestic Working Women’s Forum Vs. Union of India and others4 should serve as a guideline for providing financial support in material and non-material damages to victims and within 15 days of the filing of an FIR, compensation should be awarded. A district trauma team should

4 1995 SCC (1) 14

be in place and actively working to cater to the needs of the victim right from the beginning of the judicial process. According to the empirical studies, the conviction rate in the cases where Rahat had intervened shot up to 68%. Comparing the system in Delhi, Ms. D’Mello observed that Delhi had courts which could serve as an example for the entire nation but unfortunately the conviction rate was a mere 3% just because the intervention of the support team happened much later where already the case had taken a certain course.

3.8 The concerns raised by Ms. Sana Siddiqui, HAQ Centre of Child Rights, Delhi, that there should be de-burdening of the special courts if we are not in position to open new or more courts to deal with the menace of CSA. She further raised the issue unnecessary adjournments. She shared a broad look at the data shows that in last two months in Delhi, adjournments were there in 50% of the hearings, and that mostly without reason, due to absence of the judge, the lawyers, or witness, etc. We desperately need a system, and especially for POCSO cases to overcome this.

3.9 No matter what are the statements, courts rely heavily on FSL reports. Delay in FSL reports results in delay in trial, in few cases these delays have been up to one year or more. Judges and lawyers in the system depend largely on these reports, to the extent that charges are often not filed before FSL reports come in. Collection and storage of samples collected also needs to be looked into. IO's need regular training and it should be a built-in process.

3.10 Age of consent presents a problem as teens in consensual, romantic relationships are often trapped under the Act. There are Victims who often turn hostile because they were forced into the lawful case, or due to family pressure or guilt of breaking up the family or some such reason. These cases later after acquittal are counted as false cases.

3.11 Victim has a right to be informed about the bail status of the accused, which is rarely adhered to. Generally, victim get to know of the accused’s bail when victim or family see him roaming around.

3.12 Mandatory reporting and medical assistance. In case child or family decide not to register a case they can't even access the required services like doctor or psychologist. A case arose where the parents did not take the child to a doctor fearing that the doctor would report the

case to the police, and when the victim had been brought in for support she was five months pregnant. The law will further prevent her from aborting the pregnancy in this case. There is fear in the minds of doctors regarding those cases where they do not wish to disclose the matter, they still have to do so because the law puts an obligation on them. Mandatory reporting clause needs a deep rethinking.

3.13 3.13. In cases where MLC could not be conducted, comment box in MLC should clearly state weather child was in trauma or is deliberately uncooperative etc. Teenagers having consensual relationship may often refuse for Medical examination in irder to save their partners. The doctors are put in a complicated situation of dealing with an uncooperative victim.

3.14 Ms. Swagata Raha presented insights and recommendations based on studies on the working of special courts in Delhi and Assam. The structural challenges were that the special courts which were designated were not exclusively trying POCSO cases and similar was the case with special public prosecutors which was in breach of Section 32(1) of the POCSO Act. The child would be exposed to accused persons, police and lawyers and no separate waiting room for child victims were there except in two complexes in Delhi.

3.15 There were several procedural gaps such as matters being committed to special courts even when the concerned courts were empowered to take direct cognizance. The defence lawyers and the public prosecutors continue to question the child directly and would stop only on the intervention of the courts when the questions became aggressive. The courtroom procedures were rarely explained to the children and family by concerned people as there would be scepticism that the victim was being tutored. Interim compensation was awarded in only one case in Assam and final compensation was awarded in 5.39% cases in Delhi and 22.09% cases in Assam but directed the DLSA to do so in 42% cases in Assam. Award of compensation is mired in confusion over who should award compensation- DLSA or Special Court.

3.16 There is an absence of a directory of interpreters, translators and special educators and in such a backdrop, the accused act as the translators when the defence lawyers would be absent. Reference to presumption was made in only 12.44% cases in Delhi and 11.04% in Assam.

3.17 There are several gaps in police investigation- a failure to collect age proof documents, failure to submit the clothes of victims for forensic examination, failure to facilitate DNA test to link

the pregnancy to the accused, failure to examine public witnesses and charges do not reflect the aggravated nature of the offence owing to the pregnancy, age of the victim, or the position of authority or trust held by the accused over the victim. Testimony of the child is deemed unreliable because details disclosed in court are not mentioned to the police, there are discrepancies between the statement of the IO and that of the victim/family as to the place of recording of statement.

3.18 Support is lacking in most of the cases. The research conducted by Ms. Saha suggests that 80% of the accused in Delhi and 78% in Assam were known to victims. There is indeed multiplicity of support actors but the support is either inadequate, delayed or was unavailable for the whole length of litigation. Even when there were some SPs available in Guwahati, none of them accompanied the victim to court and no SP was found in Dibrugarh, Assam. The children who were interviewed spoke of the positive difference made by the presence of a support person.

3.19 Ms. Raha spoke about the concerns about the age determination which forms a routine element of medical examination in POCSO cases in Assam. In some cases, ossification was done even when documentary proof was available. No Medical Board appeared to have been constituted as per the erstwhile Juvenile Justice Model Rules. Benefit of doubt is given to the accused when prosecutrix is between 16-18 years. Special courts did not invoke their authority to determine age when no documentary proof was available and no medical test had been done. Section 34(2), POCSO Act was not applied. Care is not taken in the cases where the accused agrees to marry the victim during the trial.

3.20 Ms. Raha suggested that the system should be robust to deal with the issues. Consensual sexual activities should be decriminalised. Linkage between child protection system and criminal justice system should be strengthened. There should be courtroom orientation programme for children and the family of the child. There should be effective implementation of the Act by all stakeholders and rigorous training on child-friendly interviewing techniques should be in place.

3.21 Ms. Gargi Banerjee said that as part of the study on the implementation of POCSO in West Bengal, Centre For Child Rights, NUJS she has talked to judges, lawyers, medical officers, members of child protection system and police. The striking factor is the lack of convergence

of stakeholders, where the police works at their tangent, and the judiciary works in their own direction. Researchers and the research work is not acknowledged by judiciary and hence they have no official role in the process.

3.22 Every stakeholder wants to be child-friendly, but this has boiled down to infrastructure with pink walls, few balloons, and the children and accused sitting together. Prosecutors, in the name of child-friendly procedure, say, it is easy to extract information from the child victims by placing them on their laps and offering them sweets. Judges taking statements from children start with questions such as, “What is the colour of your hair?” and the process become so tedious for the child, that by the time that the judges get to the questions on point, the children are tired and unwilling to continue. They might then even be termed hostile.

3.23 Counselling has become problematic, as everyone tries to be a counsellor. Even designated counsellors lack quality, which calls for training. Good intentions must be coupled with capacity to give practical shape to the intentions. The members of the CWC often ask uncomfortable questions from the victims and leave them in an emotional quagmire.

3.24 In West Bengal, in most cases, the CWC operates over the phone. The orders are given to the police over the phone. Geography plays an important role in West Bengal. Going from one place to a place where the CWC or the JJB sits may take up to 8 hours, and often the victim may turn up and find out that the CWC/JJB will not convene that day. Thus, the Child-line plays an important role in West Bengal by addressing the geographical problem and fast-track action over telephonic conversations. The Principal Magistrate often has other official engagements and is over-burdened, and travelling long distances occupies a lot of their time. Also, organisations working on child sexual abuse are few and far between in West Bengal. There should be dedicated and exclusive magistrates at the JJB who can cater to the needs of the high population.

3.25 The police often convey the accused and the victim in the same vehicle. Also, victims brought in by police are several in number but relevant witnesses are few. Victims are even examined and cross-examined in open court like in any other regular case. Also, in many districts, female doctors to examine victims are absent or unavailable. Also, medical officials often say that

victims are brought in after several days’ delay and so are not ready to give immediate and urgent response to the victims. There is often a further delay of a few hours from their side.

3.26 Many irrelevant witnesses are roped in causing an imbroglio and giving way to acquittals. Only those witnesses whose veracity is not under question and who actually contribute towards the progress of the case should be included. Adding unnecessary witnesses complicates the matter and the prime purpose of strengthening the case is defeated.

3.27 On the issue of compensation to the victim, the situation in West Bengal is grim and not even a single order has been awarded to date in West Bengal. Also, none of the stakeholders, including the DLSA, are aware of who is responsible for disbursement of such funds.

3.28 Ms. Aarti Gor, representative of Aarambh India Initiative, a Mumbai based child friendly system initiative, an NGO, highlighted the challenges and presented recommendations in that regard. Ms. Gor stated that even in cases that are reported, victims turn hostile or compromise with the accused to avoid the harassment of dealing with the existing system. This shows the need to strengthen and sensitize existing systems that protect child victims and families. There is a need for networking among stakeholders to ensure continuity in care, protection and progress of the case.

3.29 Creating a centralized digitized database and SOPs in Child Welfare Committees for taking evidence; scale up of standardized information systems by Integrated Child Protection Scheme and Municipal Corporation of the city around POCSO Act would aid effectiveness and sensitive responses of the CWCs, police, District Child Protection Units, medical professionals, legal systems and NGOs through a multi-disciplinary team approach. Documenting the best practices in handing Child Sexual Abuse cases since POCSO has come into effect will help serve as a guideline for future cases.

3.30 She stated that the first point of contact for the child victim and his family are hospitals, CWC and Police and these institutions play an important role in the case. In Mumbai, a social worker has been placed at the Child Welfare Committees (CWC). With the CWC order, they follow up and document individual cases and strategize long-term and short term care plans for the

victims. They follow up on Manodhairya scheme5 under Section 376A of the IPC relating to compensation. The CWC appoints the representatives from Aarambh as a ‘support persons’ under Rule 4 (sub rule 7) of POCSO Rules, 2012, in certain cases. Further, they digitize cases registered under POCSO and maintain the database.

3.31 A ‘Social Worker’ has been placed in one MCGM hospital of Mumbai appointed at the Child Care Resource Unit who ensures that there is coordination between the various departments in the hospital and coordination with various stakeholders beyond the hospital. The person also works closely with the support persons at CWC to ensure that the child has a smooth transition from one system to another. The social worker in the hospital conducts Safety Sessions once a month in the Pediatric Department of the Hospital.

3.32 Highlighting the challenges of cases under the POCSO Act, the major concerns among them are that average time lapse between the FIR and 164 is more than one month. Many a time accused comes face to face with the victim during evidence and cross-examinations. The most common observation is that the courts are flooded with cases of consensual sex.

3.33 As part of the recommendations, Ms. Gor suggested that there should be more focus on Community-Based Rehabilitation, there should be digitization of cases reported, creating standard operating procedures for each stakeholder is necessary and the POCSO law to focus on rehabilitation.

5 Financial Assistance of Rs.2 Lakhs and in special cases Rs. 3 Lakhs. is provided to the victims. Based on the requirement, Rehabilitation of victims and their dependents by way of shelter, counselling, medical and legal support, Education and Vocational Education is carried out. (https://womenchild.maharashtra.gov.in/content/schemes/manodhairya-scheme-for-rape-victims--children-who- are-victims-of-sexual-offences-and-acid-attack-victims.php)

Day One: Session - 4: Implementation of the POCSO Act

4.1 Speakers:

A. Mr. Yashwant Jain, Member responsible for looking at POCSO Act at NCPCR. B. Ms. Runumi Gogoi, Chairperson, Assam State Commission for Protection of Child Rights. C. Ms Krupa Alva, Chairperson, Karnataka Commission for Protection of Child Rights. D. Ms. Rashmi Sahni Saxena, Joint Secretary, Ministry of Women and Child Development, Government of India.

4.2 This session had the Chairpersons of the National Commission for Protection Child Rights and the State Commissions who shared the efforts made and the bottle necks to fulfil their responsibility of monitoring implementation of the Act. The POCSO Act was formulated to effectively address sexual abuse and sexual exploitation of children. Under Section 44 of the POCSO Act and Rule 6 of POCSO Rules, 2012, the NCPCR is mandated to monitor the implementation of the Act. Today, all police stations in India are connected through internet. However, the real-time data on number of cases registered under POCSO Act all over India is not available. A single online platform needs to be in place where all such cases be updated as soon as the FIR is registered in the police station. As suggested by the moderator of the session, Mr. Babu Matthew, unlike the criminal justice system being adult centric, we look towards creating a system which is child centric and addresses the needs of children. Even when the drafters have studied the legislations of 15 countries where the system is majorly child-centric, the implementation of the POCSO Act is not child friendly in practise in India.

4.3 Mr. Yashwant Jain, Member of the National Commission of Child Rights initiated the discussion. He said the NCPCR has requested the State governments to appoint a nodal officer requesting to collect information regarding implementation of the POCSO Act on the prescribed proforma. He suggested that the NGOs in the concerned cities could contribute by helping victims with the filing of their statements within one month of the occurrence of the incident so that the victim does not turn hostile as the situation could change due to after thoughts on the incident.

4.4 He pointed towards informational gaps regarding knowledge of the POCSO Act. He requested the stakeholders and the influencers to write to NCPCR whenever they find that the CWC, Police, and other bodies are not functioning properly and when the victim is not getting compensation under the Act.

4.5 He suggested that awareness generation events in schools should be held where children should be made aware about the consequences of elopement and the punishments under the POCSO Act even when they indulge in consensual relationships.

4.6 From his experience, he said that child-friendliness is a matter of mindset. He has witnessed judges who, while recording statements under the POCSO Act let the kids get comfortable by giving them toys like a doll to play and then subtly ask them to point out the places which the accused touched them. This approach has led to several convictions and such sensitivity should be present at every place. He requested the people working in this field to write to NCPCR for improving the justice system for children.

4.7 Ms. Runumi Gogoi, expressed concern that sexual exploitation and abuse against children leaves them with various diseases and psycho-social disorders. Even when the POCSO Act makes provisions for special courts, support persons, special public prosecutors, interpreters, translators, etc., but in Assam, these are rare and even if they are present, they are located in the premises of adult courts. Support persons are not provided and even when NGOs try to help, they are not allowed to enter in the premises of the courts. The Police lack knowledge of this Act and most of the cases which otherwise would fall in the scope of the POCSO Act, are not registered under this Act.

4.8 She said that there has been a surge in the recent cases reported under POCSO Act. 680 cases were registered in 2015 and 877 cases in 2016. Out of the 877 cases of 2016, only 100 cases have progressed to the stage of filing of chargesheet. The role of DLSA is under a big question.

4.9 The Commission has conducted several training programmes for the various stakeholders. Recommendations included providing SCPCR with special infrastructure and creation of POCSO Cell, the hospitals should have special and dedicated doctors with trained manpower. The Police should be trained, not run in rented building and be with adequate infrastructure. Special Courts should be away from the adult court.

4.10 Ms. Krupa Alva, said that all department concerned with POCSO Act, work in tandem. A complaint was lodged before the Police on 25th January, 2017 and the accused was arrested only on 31st January. The question was that why did the police take so long. We say that the children are safe in school but what if the head of the institution is responsible for the sexual abuse. The Police in such situation plays a major role in such scenarios. But even their sensitivity is under question when the police asked a victim of rape committed by her own father if she could spell the word rape for him.

4.11 The second section of ordeal starts after the victim goes to the police station to lodge a complaint. Stating disgust at the remarks of an unnamed person from the judiciary who said that, “the conviction is not the endpoint. One should also look at the girls, how she behaves, what she wears, how she walks”. In another case, an abuser father was allowed by the judiciary to have the visitation rights. Therefore, sensitization is essential at each step starting with the police till the judiciary and right attitude by responsible stakeholders will send a good message in the society.

4.12 Applauding the initiative of the Goa Government when they awarded a compensation of Rs. 10 lakhs to the victim saying “indisputably no amount of money can restore the dignity and confidence that the accused has taken away of the victim, no amount of money can erase the trauma and the grief the victim suffers, this aid can be crucial in the aftermath of the crime”. Compensation, thus, is not uniform in India but this is crucial and must be thought over.

4.13 The role of judiciary should be strong and they should never feel threatened by the defence lawyers who have a name in the legal fraternity and let them rattle the victim and her family with questions and insensitive behaviour. Citing the example of the State of Bavaria where the conviction rate is above 90%, that the police, the public prosecutor, victim and witness work in close connect. If such a model is followed, the conviction rate can get better.

4.14 Ms. Rashmi Sahni Saxena, said that at least now, because of such efforts, the reporting has gone up, the conspiracy of silence is broken. She pointed to a data by the child helpline stating that it is the family, then neighbours, friends, strangers, teachers who have violated the trust of the children. POCSO is meant to bring more and more faces in the public domain. It is

because of this Act, that the number has increased and people have come out to report the crimes.

4.15 She pointed out the importance of creating awareness among the masses, sensitization of stakeholders and various people coming together to act upon this. The ministry released the Nation Action Plan for Children on January 24, 2017 soon to be available on the website of the ministry, it seeks to converge all the schemes and plans of different ministries and departments and at the same time has voiced its concern over the emerging challenges which could be sexual abuse, online and offline which would include addressing the issues apart CSA.

4.16 On January 16, 2017, there was a meeting in New Delhi where the members of the civil societies from across the country, members of the government line, participated and the concept which emerged was forming a grand alliance against online CSA which would include the ministry of IT to curb the cross-border crimes.

4.17 There are smart cities, being developed by Ministry of Urban Development, to which the Ministry of WCD has given inputs and suggestion on how to make the cities safer for women and children.

4.18 Regular sensitization programmes are organised by National Institute of Public Cooperation and Child Development, popularly known as NIPCCD which even has provisions of online courses for those who cannot be physically be present for these courses. Modules are being developed in NIPCCD also.

4.19 Radio jingles and awareness programmes are being conducted and NCPCR is in the forefront for sensitizing on the matter of POCSO Act, its provisions and what should be done in an event where there is an unfortunate incident of CSA reported. Childline has also made a film called ‘Komal’ which has been circulated throughout the states to show it in schools where it does make an attempt in the school to make innocent children understand what has been happening with them and increase awareness.

4.20 Ms. Sahni also spoke about the e-box launched by NCPCR which would help take over the process, once the complaint has been lodged. The representatives from the WCD pitched for

a higher budget and have been successful in that front. She urged the audience to come up with some out-of-box suggestions and share those with WCD.

4.21 Ms. Audrey D’Mello, suggested that the WCD should have indicators for which they get the increased budget and which serve as a guideline, what are the indicators one is monitoring to gauge whether the crimes are increasing or coming down or change happening to these. Monitoring of the concerned officers whether in police or judiciary to see where they are lacking and where there is a scope for action, such a step, according to her was more important than sensitization per se. Writing off agencies and letting them off the hook will not help as it is the job of the concerned people in the agencies, police, etc to do their duty.

4.22 Ms. Vidya Reddy suggested that since NCPCR and other state commissions act as monitoring body under the POCSO Act, they should come up with an Annual Report each year with a comprehensive data of the improvements and fallacies due to monitoring.

Day One: Session - 5: The POCSO Act - Perspectives from the Judiciary

5.1 Speakers:

A. Mr. S.K.Sharma, Former Special Court Judge, Assam B. Smt. RN Pandhare, Judge, City Civil and Addl. Sessions Judge, Mumbai C. Smt. KD. Shribhate, Judge, City Civil and Addl. Sessions Judge, Mumbai D. Mr. D Lingeshwaran, Sessions Judge, Fast Track Mahila Court, Tamil Nadu E. Smt. K Govindarajan Thilakavadi, Sessions Judge, Mahila Court.

5.2 The panel consisted of judicial officers at the District Level from Maharashtra, and other parts of the Country. Judges spoke on best practices such as child-friendly procedures, fast tracking of cases, innovative use of provisions, implementation bottlenecks and desired amendments in the law. Dr. Yashomati Gosh, Senior Assistant professor, NLSIU was the moderator for the session.

5.3 Mr. D. Lingeshwaran discussed that the control of implementation depends on the judge presiding over the court and his understanding of the Act. When there are delays in registering the case, the victim may approach the court or other entities, as well. The court can take direct cognizance. If the judge is vigilant about the charge sheet not being filed within the stipulated time of thirty days, he can act. Charge-sheet can be filed even without the FSL Reports and then it is the look out of the court to expedite the process. If the recording of the statement or the medical examination of the victim is delayed, the judge can expedite it through the police officer.

5.4 An important issue is that recording of Section 164 statements takes months. It often happens because the medical examinations are delayed. In such situations, the judge manning the court can ask the police to have the examinations done at the earliest. Even before the registration of the case, victim can be medically examined or before remand the police must get the medical evidence of the accused, if they are not done then the officer of the court can ask the police to do it. The officer of the court has got the powers, all it needs is enforcements.

5.5 In case of trial, the child is not to be called again and again. The trial should be conducted on a day to day manner. In criminal law, when the counsel for the accused requests for adjournments, it is up to the discretion of the court to grant adjournments or not. Adjournments should not be granted on unreasonable grounds. This sends out a message to the legal fraternity. It is important that judges utilise their powers under CrPC and conduct evidence even without lawyers, where required and possible.

5.6 Smt. RN Pandhare, said that the judges try their best to take all the evidence and not have the victim or the child victim come to court again and again. But sometimes the gimmicks played by the accused and the lawyer of the accused causes the delay. Lawyers filing for transfer of cases when the judge is strict and saying that the accused has been prejudiced if the evidence happens in presence of accused but absence of lawyer. In such cases the court officers can ask the lawyers to get the order of transfer the next day otherwise he/she would proceed with the case and ensure the cost is paid to the victims. She invited the common people and not just lawyers to address the court if they feel any conduct of the judge is not correct or if it needs improvement. Stating the incapacity of the judges to act beyond the ambit of the papers presented to them, she said that the suggestions would be welcome and they would always consider them.

5.7 Further, Smt. K Govindarajan Thilakavadi questioned that who is responsible for low conviction rates? It is a matter of collective responsibility; every stakeholder is responsible if the conviction rate should go up. It is important that the constitutional vision that every child be brought up in a healthy manner be realised. Everyone must work together to ensure that the purpose of the Act is achieved. Further, she stated that the in-camera proceedings are for the privacy of the child, and if support persons want to know what was said by the child, they can go through the evidence later.

DAY TWO

Day Two: Session - 1: Litigating POCSO

1.1. Speakers

A. Ms. Geetanjali Goel, Special Secretary (Administration), Delhi State Legal Services Authority B. Ms. Uma MG, Advocate, Karnataka. C. Ms. Aparna Bhatt, Amicus Curiae. D. Ms. Stuti Kacker, Chairperson, NCPCR E. Mr. G Mohanty, Advisor, NCPCR F. Ms. Sadhana Abraham, Advocate, Karnataka G. Mr. Ashok GV, Advocate, Karnataka H. Ms. Aarti Mundkur, Advocate, Karnataka.

1.2. The panel which consisted of - Prosecutors, Lawyers for Victims and Defence Lawyers deliberated on issues related to access to justice, court environment, protection of the child and witnesses during the court proceedings, cooperation of stakeholders such as Police, Social Workers and Medical Personnel, preventing the re-traumatization of victims. The speakers presented case studies on best practices and suggested steps to make the litigation smoother.

1.3. Ms. Geetanjali Goel pointed out that most of the cases that are filed under the POCSO Act, for the age group of 15-18 years, the percentage of rape cases are lesser than 10% and they are mostly elopement cases or of relationships gone bad. In such cases of consensual sex, if we register cases against both boys and girls then it is about criminalizing the society. In such cases, at least immediate arrests should be halted to avoid the stigma and embarrassments.

1.4. From her experience, she stated that very often the perpetrators have perverted or diseased mindsets, or it is a question of establishing a power equation over the women. One needs to work with the accused and understand whether working towards changing their mindset through counselling will work.

1.5. She further spoke about the initiatives taken by the DLSA. First, the infrastructure in Delhi is an example for the rest of the places which have facilities like separate witness room, separate accused room, play area for the child witnesses, separate toilets, pantry, comfortable waiting area, area for audio-visual exchange for free interface between the judge, accused and the witness without the witness facing the accused.

1.6. She spoke about the initiative of setting up of one stop centres which would provide medical facilities, counselling, etc. They have been set up as a part of DLSA and are manned by legal service lawyers who would follow through the whole process. Now, these one-stop centres can be and are being used to record statements under Section 164 of Cr.P.C as still we do not have as many courts as would have sufficed to cater to the needs of the victims and the judges are often over burdened with cases. Having a child friendly environment and seeking inspiration from the Juvenile Justice Rules, 2016 where child friendly environment has been provided even for inquiry of offences against children. Stating that recording of statement under Section 161 is important where child is in conflict with law but proper arrangement for an environment at the police station where the child is away from the rest of the criminals.

1.7. There is a Rape Crisis Cell under the Delhi Commission for Women in Delhi which sends lawyers and support persons to the victim the moment the rape is reported, providing the assistance that a victim would require. Capacity building, training and sensitization is also done for the lawyers who are part of the rape crisis cell. Support persons are in place and even while taking evidences, the support persons can accompany the child. These persons are selected after careful examination and interview process.

1.8. In cases of missing children, a case could be registered as a missing case but later it may come to light that the child has been sexually abused as well. There are directions by Supreme Court in several judgements and now there is a procedure incorporated in Juvenile Justice (Care and Protection of Children) Model Rules, 2016 that when an FIR is registered regarding a missing child, the copies should also be sent to DLSA who will appoint a lawyer or a counsellor who will go to the child’s family and provide support to the family in whatever way that is necessary and follow up with police to keep the family abreast with the developments.

1.9. Provisions of giving travel allowances on the direction of court proves to be very helpful and so does the scheme of witness protection which is there in Delhi. Help regarding temporary

relocation of witness at another place or changing the identity of witness can also be provided. Detailed guidelines on recording of evidences are in place.

1.10. Ms. Uma MG spoke about the practices undertaken in Karnataka by the KSLSA. She said that the KSLSA conducts orientation and sensitization programmes especially for judges of Special Courts and have taken up the task of protection of children very seriously. She pointed out that the role of a judge is most crucial and challenging. switching from one matter to the another and having the mindset through throughout the day which is convenient to the child or the victim or the accused is very challenging.

1.11. The role of Police Officers, IO or support person is very critical as the judges are not aware about the case and hence whatever facts and circumstances are existing needs to be brought before the judge for him to be able to make an informed decision.

1.12. She said that there was a training programme for the panel advocates under the JJ Act and similar plan was there to hold it for panel advocates under POCSO Act as well. On the topic of Victim Compensation Scheme, she said that there whenever KSLSA is directed to pay compensation then they do so and KSLSA have paid for 2016-2017, 1.97 crores for the victims of CSA.

1.13. Issues under the Karnataka State Victim Compensation Scheme, there is no procedure contemplated under the scheme to check the compensation released in false cases. Second, the amount of compensation to be awarded to the victim in a crime which is not referred in the Schedule attached to the Scheme. The Bar association was requested to serve pro-bono as the quality of the people were under question. There have been lawyers who have agreed in this regard.

1.14. Ms. Stuti Kacker, Chairperson of NCPCR said that child sexual abuse is a closet issue but NCPCR has taken steps to bring it out public by taking steps for creating awareness. She introduced Mr. Mohanty, Advisor-Media, NCPCR, who presented a power point on the POCSO e-box created by NCPCR. She also stated that everyone had been speaking about steps to be taken post CSA but not the preventive part which is very important.

1.15. Shri Mohanty elaborated that NCPCR POCSO e-box will help since abuses are mostly happening within the family, or by close relatives or neighbours which are not reported. Mr. Mohanty spoke about how they came to formulate the idea behind the e-box. They used a procedure called GRAM, where G was for Graphic User Interface, R was for Reduction textual information, A stood for attractive graphics and M stood for minimum input requirement. This was a web-enabled process, easy and simple by which victims could reach NCPCR. Once the complaint is made, it automatically goes to the legal and counselling team. Then the team contacts the complainant and gathers information for taking necessary legal action while maintaining confidentiality.

1.16. He further elaborated what is the post-deployment scenario- reaching NCPCR was just a click away, documentation takes least time to process, many complaints with respect to early trends are detected, specific procedures in place, effective monitoring takes place, very easy, automated segregation, following up with the complainant with unique number is easy and child friendly.

1.17. Ms. Sadhana Abraham, said that as a person assisting the prosecutor the role is very limited under Section 301(2) of Cr.P.C. It’s only after the evidence is complete can the pleader submit the written arguments. The judges are very busy and the prosecutors also do not have enough information about the case because they are burdened with a lot of cases. Section 301 and 302 is very narrow and they need to be amended so that the research and the preparation done by a private person or pleader comes in use and help in the decision making. If the prosecution does not get enough support in the form of a provision, then the support that we speak about cannot really reach the end goal. A person assisting the prosecution should be allowed more say as the defence counsels are experts at diverting the attention of the court.

1.18. Better research and better assistance can be provided ‘only’ if the prosecutor deems fit. She observed that in-camera proceedings, in reality, is no different from the other cases. Bringing changes in the procedures where the persons assisting the court has more say will help the system to bring the accused to justice.

1.19. Mr. Ashok GV said that what we need is exclusivity and not just allocation of special courts. One special court should deal with one subject exclusively and not be made to handle other special enactments. And the same approach is required for investigating agencies which are

not trained enough to deal with the plethora of cases with the same efficiency and expertise. The dynamics of each crime is unique and specially trained officers should take up cases which need special attention. Section 29 of the POCSO Act is about presumption of guilt but this Section came into picture when there was Section 114A of Indian Evidence Act already in place, which spoke about the same thing. Despite these kinds of presumptions of guilt the nationwide conviction statistic is somewhere between 24 to 26%, therefore it shows that this law is not working and the reason why it is not working is because the ability of a policeman to investigate these cases is severely curtailed because there are not enough policemen for the population involved. This is the practical problem that needs to be addressed.

1.20. He further stated that sexual crimes are unique and many a time, reporting happens very late which means forensic evidence is not going to be available. It is also blamed that the approach is not right because people are relying on statistical data. Law enforcement in India has no culture of research and analysis which is there in western countries. No effort is being made to understand the psyche of the offender. The patterns that govern these crimes are unknown. Citing the example from the west, he stated that the FBI in the US have a behavioural sciences unit, which undertakes detailed studies into the minds of the offenders; the investigation and the prosecution tools that have emerged from that has made investigating and prosecution much easier. No effort is being made to revisit the crime because of the way the investigation and prosecution is structured.

1.21. In forensic science, the police are not aware what is, say, cross contamination of the crime scene and how there is a need to change the gloves each time they touch a different crime object. This is the kind of awareness and sensitization as far as the forensic science is concerned. Having specialized crime scene investigation units will help. Keeping the issue in mind, we know that why there are less convictions. It is because by the time a matter comes before the judiciary, it’s already too late.

1.22. There is also a question of accountability. Section 35 prescribes procedure for trials stating what are all the child friendly measures that the court is supposed to employ. Whatever data is available so far as compliance of these procedures are concerned, it is only that the NGOs and the private sector, because the judiciary itself has made absolutely no effort to determine in a particular court that how many judges have actually complied with all the procedures, and even before section 35 came in, we had a state or supreme court judgments that gave the

very same guidelines, but we have seen instances where the defence counsel was directly permitted to ask questions to the child witness. He questioned that why is it that the registrars of courts are not being called upon to measure the performance of the judges on how much of these procedures are being complied with. Why are we shying away from this kind of accountability?

1.23. Lastly, there is this overwhelming obsession about changing the law. We all know that the law is not perfect. But the executive inaction makes it worse. For example, we were talking about incest cases, there is not enough safeguards for the victim when the bail is granted to the father accused. Such is the lacunas in the law. There are several judgements which look to fix the gaps in the implementation.

1.24. Ms. Aarti Mundkur, questioned why there is different age for consent in different laws and that under POCSO Act. There is a confusion about the usage of Section 376 of IPC which is a provision for Rape and POCSO Act. Another situation is that, use of POCSO Act is to target inter-cast and inter-community relationships by the people. The mother of the girl or her family is the complainant and not the girl. Third, the rules regarding medical termination of pregnancy should be made flexible as setting a time limit for the termination of pregnancy can have telling effects upon the victim who, for a long time is not able to disclose the fact that she is pregnant due to various reasons.

1.25. She was critical about the situation of courts in Karnataka which is not adequately equipped to deal with cases of children. It is an ordeal for every child who is deposing in the courts and unless the court’s environment is made as per the requirements of the child, the ordeal will continue.

1.26. Under Section 164 of the Cr.P.C., a magistrate should record the statement of a child in the exact language spoken by the child. The statement so recorded must in the presence of the child’s parents or another person of the child’s choice. Also as far as possible the statement must be recorded by audio-visual means.

1.27. So language being an important tool acts as a barrier in such cases since most of the cases received is from migrant families, makes it difficult for the child to understand the language spoken at that particular place. Translator and interpreters has to be appointed by the District

Child Protection Unit (DCPU) if such families are involved. Also, if necessary, the assistance of a qualified interpreter or translator can be taken by the magistrate while recording the statement.

1.28. One of the male magistrates while highlighting the problems under the Act stated that the victim was hesitant to state the facts the facts in front of him. Therefore, to avoid this problem as far as practicable, the statement must be recorded by a lady magistrate especially in cases where the victim is a girl. This can help in making the child to feel more comfortable.

1.29. Provision should be made for a counsellor or support person to be present while recording the 164 statement to put the child at ease. This also helps in ensuring that the victim is not brought into contact with the accused or his family members while waiting to depose and avoids any form of intimidation between the two. Also, in incest cases, the child should be kept away from his family members who are unsupportive or may force the victim to turn hostile. This can be practised only by creating separate waiting rooms and entrances in the courtrooms.

1.30. It is the responsibility of the IO to be present while taking the victim before the magistrate and also for pre-trial conference along with the prosecution and the defence council while deciding the date for commencement of the trial. By doing so, the same could be communicated to the victim and to the victim’s family immediately. This helps in keeping the family updated about their case as to when the next hearing has been scheduled.

1.31. As specified in the Act, the provision for rooting questions through judges should be strictly adhered to. Age of the child must be considered while asking questions. It must be ensured that aggressive remarks assassinating the child’s character should not be tolerated.

1.32. Final compensation should be provided by Special Courts in addition to the interim compensation to provide for the rehabilitation or to address the other hardships of the victim. There is a need for cumulative responsibility of the police, the public prosecutor, and the judges and all the other members involved in the process to work together and the entire burden should not be in the judiciary to provide justice to the child. Creation of a conducive environment that provides witness protection and more support should be established.

Day Two: Session - 2: Health and Child Sexual Abuse

2.1 Speakers:

A. Dr. Jagadeesh N, Professor in Forensic Medicine, Vydehi Institute of Medical Sciences and Research Centre, Bangalore; B. Ms. Anuja Gupta, Executive Director, Rahi Foundation, New Delhi. C. Dr. Shaibya Saldanha, Founder, Enfold Proactive Health Trust; D. Dr. K. John Vijay Sagar, Additional Professor, Department of Child and Adolescent Psychiatry; E. Dr. Chandrika Rao, Paediatrician, Ramaiah Hospital; F. Ms. Suchismita Bose, Ex. Drector, The Foundation.

2.2 Health care professionals discussed streamlining of medical care (physical and psychological) at preventive and curative levels. Experiences with MLC and other medical protocols; concerns with mandatory reporting; issue related to abortion and reproductive health of CSA victims; need for comprehensive sexuality education in schools; safeguarding mental health and special needs of children with disability were addressed. What was also addressed was that incest and child sexual abuse is like an epidemic in India and should be considered and dealt with as a public health issue.

2.3 Dr. Jagadeesh N, spoke about the concerns in the medical examination with respect to POCSO Act. Section 27 and Rule 5 of POCSO where police or magistrate does not accept a voluntary medical examination and treatment even when law mandates that they be recognised.

2.4 There is an issue of granting of consent for medical examination by parents. In cases of incest, parents are not giving consent for the medical examinations to take place which makes the case weak. The examinations are not child friendly and it often becomes another traumatic episode for children. It is not easy to collaborate with CWC.

2.5 Under mandatory reporting, Section 19 and 21 provide that ‘any person’ who does not report would be liable but in reality, only 2 entities are held for mandatory reporting that is the medical officers and the school authorities and never anyone else. As far as medical

examination is concerned, there is a conflict between Cr.P.C and POCSO which puts doctors in a quagmire. The mandatory reporting provisions, it is incumbent upon the doctors to report the crime which infringes the trust, the faith and breaches the confidentiality that there is between the doctor and patient. Section 41 of the POCSO Act can be abused against the doctors if the consent of the parent is not there and the medical examination is done, e.g. cases of incest.

2.6 Ms. Anuja Gupta point that one kid in every two has suffered from CSA. It is associated with immediate trauma, and increases risk for host of mental health problems, behavioral issues, medical conditions. It leaves a lasting impact, sometimes lasting throughout life such as depression, substance abuse, suicide, heart problem, cancer, DID, OCD, etc. It is a ‘silent- violent epidemic’ (AMA). Significant no. of health care seekers are survivors and it has a huge cost- treating the aftereffects of an abuse may involve huge sums of money. So, it is not only an issue for social services, child abuse organizations or law enforcement/criminal justice. It is a national public health issue and it needs to be treated as such. Treating CSA as a public health issue also gives us opportunity to focus on primary prevention; shift attention from individual to larger population for not only victims/survivors but also for families, communities, perpetrators and identifying risks and protective factors and addressing them.

2.7 A national public health issue necessarily then needs to have a National Plan to address it with: adequate resources and multi factorial preventive and curative approach; clear action steps in 6 broad areas: research, public awareness, education, training, law and policy, services. Active engagement of State, policy makers, youth, parents, families, communities and institutions is needed. We do not know what works for prevention as there is no study in place to provide an idea. We need to do prevention work long enough to know the effects of it. Longitudinal studies with young people, research with parents/adults who have been through prevention programmes will give a broad idea about the issue. We need to rigorously evaluate and strengthen existing work, test efficacy of school and other programmes and gather new evidence. But we know factors that cause incest/CSA – silence, stigma, denial, ignorance and we may say that abuse is not the worst act as much as silence or disbelief in the victim is.

2.8 Shifting the role of prevention from children to adults by educating adults and making them aware of their responsibilities will help curb CSA as incest/CSA do not work in isolation.

Training survivors to be leaders and ambassadors for the cause and including them in everything like meetings, training programmes, therapeutic services, advocacy and prevention teams will help in their restoration and confidence of the masses in the system. Instead of condemning offenders, we can talk about rehabilitating them and making them a part of prevention teams so that they can reach out to other offenders. Training families of victims/survivors to give personal testimonies and being advocates of other victims and providing health care professionals with trauma sensitive training will help to address the issues.

2.9 Providing services for victims, survivors, allies, families, perpetrators and having professionals dealing with them and channelizing excellent work being done by different agencies into one single common national message through public campaigns, media, etc. and will ensure uniform and wide effects of development. Lastly, none of this will be possible if funds and resources are not put in by the authorities.

2.10 Dr. Chandrika Rao said that we should have an objective of developing a training and sustainable model to achieve the objectives of this event. Hence there was a strongly felt need for effective systems to assist holistically the children who have suffered any abuse, physical, emotional or sexual. As the first step, meeting the management of the hospital. The office of women and child welfare support the issue. Hospital management should participate and cooperate. As the next step, identifying and connecting with stakeholders: like the police, NGOs, local child welfare committees, judiciary, etc. Meeting independently with each stakeholder to understand the issues being faced currently in the handling of cases of child abuse should be held. As the third step, the police should help to understand many lacunae. Studying case histories is a good way to understand where cases are being lost in the existing system. As per studies, most child abuse cases have been lost / got stagnated at almost all points of contact due to inappropriate police or physician behaviour. The acceptance of police to take history from child in hospital premises is being established. Senior police officials are in favour of it but not in practice yet. As the fourth step, holding a discussion in the hospital with police, hospitals management and administrative representatives, social services.

2.11 A team is required because study has revealed that in a jurisdiction where an MDT created a close working relationship between law enforcement and child protective services, three out

of four cases were referred for criminal prosecution, and nearly 95 percent of those cases resulted in convictions.

2.12 The lacunae in hospital is that due to lack of training, sensitization and comprehensive intake & examination forms, medical staff are unable to document evidence accurately. The possibility of having to appear in court dissuades doctors from getting involved with cases of abuse. Material / evidence collected/ recording documents are not stored in a proper manner as there is no chain of custody.

2.13 The lacunae with the police is that people often get intimidated by the police. Due to social stigma associated with child abuse, people do not want to register complaints or file FIRs. Police personnel are given a run-around from one doctor to the other for medical evaluation and reports. At the level of NGOs, as there are no set systems or protocols, NGOs work mainly on an ad-hoc basis. Due to insufficient staffing, there is no case management and social workers are unable to follow-up on cases to ensure that some closure is achieved.

2.14 From the view of the victim and family of victim, the main problem was that repeated questioning of the already abused child by the police, doctors, social worker, media, etc leads to the facts getting distorted in the child’s mind and the child having to re-live the trauma repeatedly.

2.15 A centre treating child abuse cases need to be child centered, child friendly, supportive to the family and follow the law. Identification and marking a room/block to serve as a child response unit in hospital premises which is accessible yet providing security and privacy becomes important. They should have history sheets and examination equipment. Have audio or video recording of the history so that child need not be questioned repeatedly. If possible having a one-way screen in the room so that police, judiciary can hear history from a side is not in place yet. A team of staff nurse, medical social worker, paediatrician, gynaecologist, psychiatrist and forensic physician from our hospital to respond to the call in the same premise. Training of all the stakeholders is a must. Availability of kit to obtain forensic samples will help and availability of admission facilities if required.

2.16 A Child Response Unit was set up at Ramaiya hospital and there was a social commitment to establish the CCRU to all child abuse patients was supported by the hospital management and

authorities and a multidisciplinary team and approach has been applied to be used in all child abuse cases. Child abuse protection unit at M.S.Ramaiah Hospital offers children a safe and nurturing environment where compassionate diagnostic, assessment and treatment services are provided and the abused child's need for safety, dignity and privacy was honoured. It seeks to coordinate the efforts of various community agencies working together on behalf of the abused child. A Policy is in place regarding this. Regular training programmes are held and the medical staff and professionals are equipped to deal with such matters.

2.17 As a way forward, introducing it in UG MBBS Curriculum, training of doctors in medical colleges and PHCs, common documentation forms containing consent, history, examination, diagrams, certificates etc. should be in place. There should be such a policy in every hospital/ clinic. Reporting from doctors and their court appearances should be facilitated. Every medical college whether private or government should have a CCRU/ multidisciplinary team. One stop center may have a single doctor but many cases require psychiatrist or other specialists. There should be some provision if lady medical doctor not present in health center. Common documentation form should be there all over India. Zonal training and zone wise TOTs of doctors should be added in curriculum.

2.18 Dr. John Vijaysagar pointed out that most perpetrators are known to the child. Perpetrators use the process of ‘grooming’ to gain the trust of the child. The child gets confused by the perpetrator’s behaviour. The child is made to believe that the inappropriate behaviour is love or affection shown by the perpetrator. Child Sexual Abuse has several short-term and long- term adverse sequalae on mental and physical health of the victims. As recommendations, he said that all children, who are sexually abused should receive an immediate mental health evaluation and a first level response. Follow-up assessment is required to determine the need for long term psychotherapeutic work. Psychosocial interventions for the family and child should be embedded within the larger context of other interventions. Preventive work including personal safety skill workshops for children, training for teachers/parents, etc. to be based on the psychological theories of sexual abuse.

2.19 Dr. Shaibya Saldanha said that the 8-page report preparation guideline is there so that the doctors prepares a report which is just and not record unnecessary details. It should be comprehensive enough and be able to identify the patient such that even if the case is taken up a few years later, it still valid. She was horrified at what happened to the MTP Act, as

mandatory reporting has made the pregnant victims to resort to illegal forms of termination of pregnancy thereby destroying their reproductive health.

2.20 She went further to say that the children do not understand the difference between good and bad touch because a relative may be very good but touching in a bad way so what is the child supposed to do in such a situation. Therefore, the child is now supposed to be taught about the difference between a safe and unsafe touch and most importantly putting it in a context. Looking at emotional abuse, sexual abuse and physical abuse in a context. If there is any form of violence in the house, then the children will only be confused about what is safe and what is unsafe.

2.21 Ms. Suchmita Bose spoke about POCSO Act’s impact on preventive therapeutic approach by saying that it is discouraging potential offenders from seeking help, professionals reluctant to provide help, it is labelling children as offenders. Survivors are reluctant to seek help and there is forced engagement with the criminal justice system. It is pushing children towards impulsive and unsafe decision-making and making help more unavailable to children.

2.22 She raised a question of what will happen if sex offender registry becomes a reality? And if our over enthusiasm to protect children criminalized their own basic biological need where children who indulge in consensual sexual activities will become sex offenders. Our system is not yet prepared to address these questions.

2.23 She said that most psychologists qualified are not trained to deal with trauma associated with abuse. Having training is most important and helping a child heal is a long-drawn process which cannot be achieved in a few days. Giving therapy to children who show inappropriate sexual behaviour, sexually reactive behavior and sexually aggressive behavior and working with pedophiles and hebephiles who are motivated to not offend. Dealing with every case by understanding the needs is important.

Day Two: Session - 3: The Rehabilitation and Restorative Care

3.1 Speakers:

A. Mr. Johnathan Derby, Founder, Counsel to Secure Justice. B. Dr. Shaibya Saldanha, Founder, Enfold Proactive Health Trust; C. Ms Suchitra Rao, UNICEF

3.2 Bringing together social workers, other stakeholders in child care, this session focused on post litigation care, support and rehabilitation of the child - socially and psychologically. They discussed the measures that the law can take in ensuring this happens, and suggested necessary amendments, including establishment of support, monitoring and follow-up mechanisms.

3.3 Mr. Jonathan Derby spoke about restorative justice as a way to better protect our children from sexual abuse. Important reform has strengthened substantive, procedural and evidentiary child sexual abuse law. While these reforms are important, they address only part of the problem. Most children who are sexually abused never report their cases to police, so they remain outside the law’s protection. We need to ask: 1) why are victims and their families not reporting sexual abuse? 2) what would encourage or empower more people to report? and 3) what do victims and their families want/need from the justice process?

3.4 For child sexual abuse cases that are reported, the adversarial justice system often re- traumatise victims and leave them without a sense of justice. Even when the criminal justice system works as it should—i.e. the case ends in conviction and the process is child friendly— it often divides families and communities and doesn’t meet victim needs nor their desire for justice.

3.5 Often victims want to be believed, for the abuse to stop and to be vindicated. They want the offender to take responsibility and to feel a sense of shame. While victims also want punishment, this often comes from anger and a desire for vengeance. Children are left even more vulnerable, powerless and isolated from their family if their case ends in acquittal.

3.6 We must understand the limits of the adversarial system to address the hidden nature of sexual abuse and its ability to meet victim needs. We should seek to 1) create an environment where

more children and their families disclose sexual abuse and pursue justice; and 2) create ways for victims to secure justice effectively and compassionately. This would mean looking outside the adversarial system of justice for other alternatives to address abuse.

3.7 One alternative is restorative justice. While retributive justice focuses on punishing offenders for breaking the law, Restorative Justice looks to repair harm caused by sexual abuse and as much as possible make things right. It is a dialogue driven approach that brings the offender, victim and affected stakeholders together to hold the offender accountable and repair harm to the victim. Restorative Justice processes are conditional on 1) the offender taking responsibility for the abuse; 2) the victim’s genuine desire to participate; and 3) stakeholders willing to ensure that accountability measures agreed upon during the process are completed.

3.8 Restorative justice offers potential benefits: child victims are empowered by the process and have much greater voice. They have opportunity to explain impact of the abuse and ask offenders questions, which facilitates emotional healing and closure. Offenders tell the truth and take responsibility for their actions. Accountability measures taken can be designed to meet specific victim needs to repair harm and empower them to overcome abuse. Practically, restorative justice processes lower criminal process costs, reduce recidivism and lead to outcomes for victims and offenders that foster healing.

3.9 However, there are risks that must be protected against. Safeguards need to be in place to reduce power imbalances often prevalent between victim/offender or victim/family that could lead to unjust outcomes. Facilitators must be trained so they do not re-victimise children and there is confidence that offenders are taking full responsibility for the abuse and they do not blame the victim, shift responsibility or downplay the incident. Accountability plans must be specific, time-bound and meet victims’ specific needs that repair harm. There must be mechanisms in place to ensure the offender complies with the accountability plan, and if not, then the case goes into the regular criminal justice process. Finally, confidentially must be maintained during Restorative Justice processes so that nothing can be used against the offender, if the case should later go to trial. Restorative Justice can act as an alternative to trial or become a part of criminal justice process.

3.10 Mr. Derby proposed that an Independent Commission should be formed to study sexual abuse in the Indian context. The study will help understand the psychology of the perpetrators of the crime and help deal with it practically.

3.11 When we use restorative approach, the outcome is always beneficial for all the stakeholders involved. Our end goal should be to ensure that healing takes place along with the delivery of justice. If the criminal justice system believes that it is there to deter the criminal minded people from not committing the crimes, then unfortunately it is failing in its goals.

3.12 These crimes are being committed against the children often by administering drugs or keeping them under some intoxicant. Many a time the child perpetrator is under the influence of drugs, intoxicants or gangs. It is always better to look at preventing the occurrence of such crimes rather than look to punish the culprits after the crimes have been committed. If the children are made aware about the consequences of perpetrating such crimes and taking steps for their reformation, then there are higher chances of reforming the culprits. When the test of reformation is done by the judges, the same tests are not being done to see if the correct environment is being provided to the children who are in the ‘place of safety’ under JJ Act.

3.13 She recommended that some experiment should be done at the places where children in conflict with law are kept, to reform them. We can use them to demonstrate to children and ensure that they are reformed while they are in these places of safety. Studies prove that it would work better than simply locking somebody up in case of reformatory procedures.

3.14 Dr. Shaibya Saldanha said that figures came up incredibly after the provision of mandatory reporting came in. The habitual abusers were recognised and punished. She spoke about the adult serial offenders who would not stop after one incidence. Here, restorative justice will not work. People who manipulate the system and family make grooming into an art and keep harming them. There were many patients who were made to feel loved and cared for and gradually they were cut off from the family to be terrorised later. And at such times, such groomers need punishment because they know what they are doing.

3.15 On the other hand, there have been people who have taken their step back because the warning worked in this way. It always helps when a person can talk to a person within the family whom

they can trust and seek counsel. The victim only want two things, to be believed when they report the crime and second, to stop the abuse. Healing starts when the victim is believed.

3.16 There is always terror in the family about going public and pursuing the case. Two years down the line the family refuses to recognise the abuser because there is a lot of social pressure to compromise. It deteriorates the self-esteem of children. We need to listen to the children in every way. Improving one aspect of life will not improve the situation. The canopy of behavioural pattern around a child should change, the environment of children should improve for them to be able to deal with unfortunate cases.

3.17 There are major differences between the retributive and restorative justice systems. The retributive justice looks at blaming the victim, focuses on the past or the crime, pays little emphasis on the needs of the child, inflicts pain as punishment, focus is on offender and punishment and ignores the victim, outcomes are intended to ensure offender responsibility and there is a state monopoly on response to wrongdoings. The restorative justice on the other hand looks to adopt a problem-solving approach, focuses on the future of the child, pays heed to the needs of the child and puts the needs of the child in the forefront, recognises the role of victim, offender and community, responsible behaviour encouraged.

3.18 Various participants in the two-day event deliberated on a very sensitive issue of CSA which is detrimental and a bottleneck in the growth and development of the nation. No country can claim progress if the children are unsafe because children are the future of the nation. The influencers highlighted several issues and came up with sound recommendations to deal with them.

Recommendations Based on the Issues Raised in the Two-Day Consultation Event

“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul.”

― Dave Pelzer, A Child Called "It"

The criminal justice system in India struggles to cut its root from the inherently biased social system where survivors of child sexual abuse are facing numerous issues. The below mentioned recommendations are to address them.

1. Support and Protection of Children from Sexual Abuse.

Often, it isn’t the initiating trauma that creates seemingly insurmountable pain, but the lack of support after. The lack of awareness by the child victims and their family members regarding the provisions provided by law to deal with the sexual offences on children creates the need for a robust support systems from the very start which includes the primary role of the support person in such cases is to assist the child during the investigation, trial and maintain the confidentiality of all information pertaining to the child to which he/she has access to, this helps in protecting the child from any possible harm or threat.

We have witnessed that power and control have been the driving force behind most of the sexual crimes. This holds true both in the case of women and children. We need to be aware that if the status of women is not improved, the system of family and safety within the family is not ensured, the situation of children will not improve. Our end goal should be to create a safe society.

We must ensure that healing takes place along with the delivery of justice. If the criminal justice system believes that it is there to deter the criminal minded people from not committing the crimes, then unfortunately it is failing in its goals. Extensive sensitization programmes and putting the focus on sensitizing the adults will ensure that the society becomes safe for children.

Empowerment of women and respecting the choices of women will help build the right moral fabric in which we would want to see our children. The mindset that operates with every stakeholder at every stage has to undergo changes. Addressing the issue of lack of awareness among stakeholders

48 is what promotes such crimes and the criminals. We need to work towards changing the mindset of the stakeholders.

Deploying exclusive police force to prevent the commission of crimes is the first step towards ensuring protection of children. State mechanisms to support the children who suffer from sexual crimes should be responsive and sensitive to the needs of the child victims. Providing safe shelter homes and constant monitoring of government programmes for their proper implementation of the available laws is a must. The dependency of a child on the abuser is often taken advantage of. There is a need to address this basic issue.

The stakeholders involved in any issue should not put the blame for acquittals on each other but work in tandem to ensure justice is delivered. The Special Juvenile Police Unit (SJPU) should be constituted in every district which should be specially trained to cater to the needs of both ‘juveniles in conflict with law’ and ‘juveniles in need and protection of law’.

2. Pre-trial and Trial Stage

Courtroom orientation programme for children and their families are required. Court management systems need to be in place. All court proceedings under the POCSO Act are held in camera and are therefore, not open to the public. Only person concerned with the case are allowed inside the courtroom. The child should not be kept waiting on the day of her evidence. Besides, the child is not required to be present for all the proceedings. The child has to attend the proceedings only for giving his or her statements and during the hearing. Care should be taken that a child should not be required to provide statements more than once to law enforcement during the investigation and credibility should be lent to the statements made by the child. In unfamiliar surroundings, children tend to get intimidated and hence the frequency of their court visits should be narrowed down to once.

To check the rate of conviction, the mindset of dismissing the possibility of abuse when teenagers are involved in romantic relationships should be done away with. Sexual assault could have taken place even in such relationship, against the wishes of the girl. There is a need to look at consensual relationships from a different perspective altogether and maybe consider decriminalizing them depending on whether there was a criminal intent.

Proper victim and witness protection system is required so that the child victim is not be exposed to the accused while recording the evidence. To ensure that this requirement is meant the special court can rely on video conferencing facility, single visibility mirrors or curtains. Witness protection should extend beyond protection in court – the Delhi Witness Protection Scheme can provide guidance on this. There are insufficient number of Forensic Science Laboratories at present. Utilization of funds needs to be in such a way that FSL reports are produced on time.

There is a need to ensure that interim compensation is paid to the victim at the earliest majorly because the amount of expenses that has been or need to be spent on medical treatment for ensuring the physical and/or mental health of the child is taken care of. So, the compensation provisions need to be operationalized. The State should have clear SOPs on compensation, including for male children.

Convergences of laws dealing with the same issues are very important in rendering justice to the victims and also being fair to the accused. Hence convergence is required between the system under the Juvenile Justice Act and the criminal justice system.

It’s the responsibility of all the stakeholders to ensure that the child is comfortable throughout the procedure and not re-victimized or repeatedly traumatised. The role of every stakeholder in such a scenario may be different but they are nevertheless, crucial.

i. Prosecutors, private persons assisting the prosecutors and IOs should work together to ensure that the charge-sheet is without loose ends and all appropriate sections of POCSO Act and other Acts (if applicable) should be applied. ii. Training of officers becomes necessary so that they also stress upon considering the mental status of the victims and get them justice. PP needs to meet the child before the trial to be completely aware of the matter and avoid ambiguities. It should be his responsibility to prepare the child for trial so that the child gets comfortable enough to share the necessary information with the court. iii. The PP and IO should also draw the Special Court’s attention to compensation so as to unburden the victim and his/her family from bearing the financial costs.

Thus, it is the cumulative responsibility of every department involved in the process to work with co-operation to attain justice.

Section 40 of the POCSO Act make scope for free legal assistance or having a legal counsel of their choice if the guardian or the family of the child is unable to afford a legal counsel. There is a need

50 to enable private lawyers to assist the prosecution and address the Special Court. Currently, the private lawyers, regardless of their expertise in the POCSO Act, cannot represent the victims at their own accord. The child and her or his family can take assistance of a lawyer of their choice because due to the plethora of cases, the same Public Prosecutor is not able to pay adequate attention to all the cases thereby failing to put the facts together in a proper manner. Services of a free legal aid lawyer from panel of lawyers appointed by the legal services authority should be readily available. As per Section 301 of Cr.P.C., private lawyers are allowed to do submissions only under the directions of the PP, after the PP has already submitted. The private persons are not able to make appropriate interventions in the matter. This should change and the private lawyers should be given more impetus in these cases.

There is an evident need for Special Courts which deal exclusively for cases under the POCSO Act. As per Section 28(1) of the POCSO Act, the State Governments, in consultation with the Chief Justice of the High Court, should designate a Court of Session to be a Special Court to try the offences under the Act. These courts must be child friendly and exclusively dealing with such matters.

In cases of incest, the parent, who could be the culprit, may oppose medical examinations. Under Section 41 of the POCSO Act, if doctors conduct examination against the consent of the parents, they can be prosecuted. A proviso should be added to create an exception where a doctor is not criminally charged for acting in the best interest of the child and performing the examination in cases of incest, without the consent of the parents.

3. Health and Child Sexual Abuse

We need to view CSA as an “epidemic” and address it as the public health issue. CSA should be treated as a public health issue and then it gives us an opportunity to focus on primary prevention. It will shift attention from individuals to victims, families, and communities. We need to work with the families as well and not just the child. Families should be appraised of the importance and the impact of counselling and psycho-therapeutic interventions for rehabilitation.

Mandatory reporting can discourage victims from accessing counselling and health services. Strict application will require a psychiatrist to report if an adult client discloses that he/she was abused as a child. This would discourage them from coming back for further sessions. Mandatory reporting will also push girls into unsafe abortions.

The medical examination should be conducted by a Registered Medical Practitioner [RMP] of a government hospital. As per Section 27 of the POCSO Act, 2012 read with Rule 5 of the POCSO Rules, the medical examination shall be conducted by woman doctor, in case the victim is girl child, in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. Where, in case the parent of the child or other person cannot be present, during the medical examination of the child, the medical examination, shall be conducted in the presence of a women nominated by the head of the medical institute. Further, no medical practitioner, hospital or other medical facility centre rendering emergency medical care to a child shall demand any legal or magisterial requisition or other documentation as a pre-requisite to rendering such care. The RMP rendering emergency medical care shall attend to the needs of the child. If the RMP is not available at the government hospital, then the medical examination should be conducted at the private hospital. The consent of the child must be obtained prior to conducting the medical examination. If the child refuses to consent, generally medical examination cannot be conducted under law. Mental health care services for victims and offenders should be ensured. Preventive efforts should be directed towards potential offenders (children and adults) and not just potential victims. Psycho- social interventions should be embedded with the legal interventions.

The two-finger test is downright unjust and has proven to be inaccurate to test the validity of the claim of rape. This test requires doctors to probe the vagina to determine if the vagina is lax, which is taken as evidence that the woman routinely indulges in sexual intercourse and thus consented for it. The Supreme Court has held that the two-finger test on a rape victim violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault. However, many medical professionals and hospitals have been found to be using the two finger tests and certain lower courts have admitted the test as evidence. Therefore, the SC directives must be followed and alternative forms of tests should be devised.

4. Ambiguities in the Letter of Law

Child Pornography, cyber bullying and sexting are challenges that has emerged with easy access to the internet. With increase in access and use of technology, the platform for online sexual violence has widened. There are various types of crimes happening over the internet and there aren’t sufficient provisions to deal with each one of them effectively.

Under the POCSO Act there needs to be more clarity as to whether the offences are cognizable or non-cognizable, bailable or non-bailable. If clarity is brought about in this matter it clears the confusion on the nature of offences and the steps to be taken further on.

There is need for clarity on the Juvenile Justice Board’s obligation to adhere to the child-friendly procedures under the POCSO Act. The Act majorly stresses on creating child friendly atmosphere but it does not expressly and exhaustively mention the means to approach the child friendly atmosphere for every stakeholder.

Carving out exceptions for cases of consensual sex in the 16-18 years’ category should be considered. There is a requirement to adequately address the cases where the minor indulged in sexual activities due to biological need and not criminalize them for doing so.

Section 41, POCSO Act should contain a proviso which takes into consideration the incest cases where the parents do not consent for performing a medical examination upon the child but the child wants the examination to be done. Doctors can be charged for conducting the medical examination against the parents’ consent. Proviso should be added to create an exception where a parent is an accused and give more clarity to the spirit of the provision. Section 41 of the POCSO Act, 2012, says that provisions of Ss. 3 to 13 shall not apply in case of medical examination or medial treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian. It is submitted that even if the parent or father is abuser and does not give consent, medical examination or medical treatment of the child may be conducted with the consent of mother or the guardian of the child victim, as the case may be.

It should be ensured that the two-finger test which is still in practice is removed. Regarding improvements of IT Laws, Section 15 of the POCSO Act should be brought in line with Section 67B of the IT Act, 2000 which provides punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.

5. Overall Remarks & Suggestions

The POCSO Act has sufficient provisions to protect the interest and rights of child victims. Effective implementation of the provisions of the POCSO Act must be given more importance instead of pushing for amendments. Increase in reporting of cases under the POCSO Act should be welcomed as it is a sign of awareness and a step forward considering the culture of silence around CSA. Child

53 pornography, cyber bullying and sexting are challenges presented by modern day technology and we need to have laws and systems in place to deal with them. Mind-sets have to be changed and the approach has to be victim-centric. All stakeholders – police, Magistrates, CWCs, DCPU, prosecutors, JJBs, Special Courts, support persons, DLSA, media and others – should apply the POCSO Act in letter and spirit. Media can play a major role in bringing sensitive issues like CSA in light and putting a pressure on the stakeholders to take steps.

There is a need to enable private lawyers to assist the prosecution and address the Special Court. Some participants were of the view that Special Courts should exclusively deal with matters under the POCSO Act. Switching mind-sets is tough for the judges and the Sessions Courts are overburdened. Minimize the number of times a child has to repeat her statement. The statement under Section 164, Cr.P.C. should be admitted as chief. Need for monitoring indicators to assess the utilization of budgets on child protection and effectiveness of capacity building programmes.

The legislature should consider carving out an exception in cases of consensual sex in the 16-18 years’ age category, children should not be criminalized for normal biological/sexual behaviour. In such cases, love is being criminalized which can be addressed in a different manner. New rules regulating these issues must be brought in.

There is a fine line between domestic violence and sexual abuse which needs to be recognised and awareness has to be spread regarding the same. There is a need to recognize the link between domestic violence and sexual abuse.

Our nation needs to adopt a culture of research which is essential for understanding the psyche of offenders. A research with the purpose of identifying patterns and motives to these crimes needs to be done. Additionally, training of investigators must include training on criminology, victimology and behavioural sciences. Adopting a culture of research and publication of databases outlining the experiences of investigators is necessary. Programmes like The Violent Criminal Apprehension Programme (VICAP) as in the US may serve as a guideline for starting something on similar patterns in India. Assessment of the kind of prevention programs that would work should be done.

Instead of condemning offenders, their rehabilitation needs to be focused upon. Counselling needs to be made available to them as well. Our approach should be to provide restorative justice instead of focusing on punishment.

Recommendations for Amendments in law and Executive Measures – A Practical Approach

“The law must be stable, but it must not stand still”

-Roscoe Pound, (Introduction to the Philosophy of Law, 1922)

India is the second most populous country of the world. The latest census of 2011 reveals that India is home to 17% of the world’s population. Nearly 19% of the world’s children live in India which constitute about 42% (more than one third) of India’s total population. Around 50% of these children need care and protection. Before a child turns 18, one in every six boys and one in every four girls experience some form of sexual violence. The 2007 survey published as “Study on Child Abuse: India 2007” brought out some shocking facts about children in a family environment, children in school, children at work, children on streets and children in institutions. Sexual abuse was reported by 53.22% of children. Among them, 52.94% were boys and 47.06% were girls. 21.90% of child respondents faced severe forms of sexual abuse.

Following the objectives of the UN Convention on the Rights of the Child, 1989 coupled with constitutional aspirations under Articles 15(3) and 39, the Government enacted a special gender neutral legislation to address the issue of Child Sexual Abuse, protecting the child through all stages of judicial process and giving paramount importance to the principle of “best interest of the child”.

Unfortunately, POCSO Act has not been able to bring down the crime rates against the children. It is therefore, in the interest of the children that following recommendations are suggested in the form of amendments in law and in form of executive action.

Recommendations for bringing Amendments in Law

• Over the past decade, several High Courts liberally interpreted section 53(2) Cr.P.C and proposed that sexual violence victims should only be examined by a female doctor wherever available. But this change has led to problems. The 2005 Criminal Law Amendment in section 164A Cr.P.C put an end to this insistence of female doctor, by enabling any doctor with whom the female victim consented can carry out the examination. But the problem again resurfaced

with the present Section 27 of the POCSO Act insisting a female doctor only to examind a girl child. • Insistence on age estimation by investigating authorities should end where there is clear documentary proof of age. But Section 164 A Cr.P.C. and Section 15 (5A) of the ITPA, 1956 insist on medical age estimation from doctors. Supreme Court in the case of Ashwani Kumar Saxena v. State of M.P. said that only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the JJB or the CWC need to go for medical report for age determination. • Insensitive practices like two finger tests, over emphasis on hymen, built of woman, past contraceptive practices, past consensual sexual acts, past abortions, etc should be completely done away with. • the IPC provides for a marital rape exception which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” No such exception has been grafted into the POCSO Act under which an act of sexual intercourse with a person under eighteen is an offence irrespective of the gender or age of the victim or the accused. Further, one of the grounds of aggravated penetrative sexual assault is penetrative sexual assault by “a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child commits penetrative sexual assault on such child”. This is punishable with a fine and a minimum term of 10 years imprisonment which may extend to life imprisonment. The confusion should be clarified consensual acts should be decriminalised. • Amendment in section 301 and 302 of Cr.P.C. making the role of a private person or pleader wider in ambit. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session and the counsel engaged by him is required to act under the directions of public prosecutor. • There should be a remedy for the issue of guardianship while the child is in shelter homes. It should be made clear as to who all can have the authority to sign the vakalatnama for indulging lawyers for the prosecution. • Policy should be framed for setting up of a specialized crime scene investigation unit for collection of evidences, understanding the psyche of the offenders and keeping a database for nabbing repeat offenders. • Compulsory courtroom orientation programmes for children and the family of the child and training on child-friendly interviewing techniques should be in place.

• In cases where the suspect/offender is a parent, the exemption of compulsory consent of parents from Section 41 of the POCSO Act should be considered. • There is no specific provision to deal with sexual abuse by parents or teachers. These crimes should not be covered by general provisions and special provisions should be enacted to deal with such situations. • Exclusive/new provisions to address repeated offences against one child considering it affects the children more severely. Amendments relating to the same should be enforced. • Pre-and-post deposition counselling should be made mandatory. • There should be provisions relating to providing financial support in material and non-material damages suffered by victim of sexual crimes. Guidelines laid down in the case of Delhi Domestic Working Women’s Forum v. Union of India should be followed. • Proper procedure relating to adjournments should be in place. The defence lawyers should not be granted adjournments unless they have extremely reasonable grounds to plead for adjournments. • Doctors should be given reasonable option of reporting of a matter of sexual abuse because a victim may not consult a doctor for the fear of being ostracised by public glare even when she requires medical attention. • Making it incumbent upon the police to inform the victim and the family about the legal developments and the status of the accused being on bail or in custody. • Compulsory setting up of one stop centres which would provide medical facilities, counselling, etc. through the process of amendment in the POCSO Act should take place. • Setting up of Rape Crisis Cell, based on Delhi Model, should be contemplated for each state for serving the victims better. A Rape Crisis Cell sends lawyers and support persons to the victim the moment the rape is reported. This eases the victim’s misery manifold. Setting up of Distrct Trauma Teams in each district to address to the needs of the victim should be considered. • The rules regarding medical termination of pregnancy should be made flexible. The legal provisions regarding termination of pregnancy are in Section 3 of the Medical Termination of Pregnancy Act. A doctor would have to use discretion on a case-by-case basis. With the mandatory reporting laws of sexual violence now all these rights of the woman are being denied/affected because now such pregnancies because of sexual violence have to be mandatorily reported to police (even if the victim does not want to) breaching the promise of maintaining privacy and confidentiality under the MTP Act, 1971.

• Mandatory reporting is becoming a hassle, because a victim chooses not to deal with the situation in any way whether privately by sharing it with social support system because people who come to know about it have to mandatorily report it. Caretakers are refraining from hearing about the experiences of children and victims because of the fear of mandatory reporting. This is also hindering the process of researches and data collection, the studies that can aid understanding the graveness of issue. • There should be stricter punishment for addressing all forms of sexual violence against children. Many cases are happening in preschools and day cares which are growing like seasonal mushrooms in every neighbourhood of cities. There is no certification, best practices towards making them safe from sexual abuse. POCSO should have amendments where schools should mandatorily undergo legal checks regarding opening of franchises and hiring staff. • The burden of the special courts should be re-distributed for ensuring speedy disposal of cases. • The concerned stakeholders should not be spared and heavy punishment should be levied on them for not carrying out their tasks properly. • Strict timelines should be in place in the form of strict provisions for recording statements under Section 164 of Cr.P.C. and punishing the stakeholders for not fulfilling their obligation to do so. • POCSO should include provisions for creating a repository with the name and details of individuals, more like a sex-offender’s registry for having a record of those who have legally proven paedophilic tendencies. This database should be publicly available to various agencies/schools etc. thereby enabling them to keep track of the individuals with paedophilic tendencies so that the children are not exposed to them in the schools and day-cares.

Recommendations for Bringing Change Through Executive Action

Executive Measures- there is this overwhelming obsession about changing the law. We all know that the law is not perfect. But the executive inaction makes it worse. Therefore, better implementation of the intentions of the framers of the POCSO Act is a must.

• Following the guidelines of the Supreme Court which has been laid down in the case of State of Karnataka v. Manjanna (2000) that the medical examination of Sexual violence victim should be done immediately and no hospital or doctor should delay examination for want of police requisition. Better understanding and implementation of Section 27 of the POCSO Act, Rule 5

of POCSO Rules and Section 357 of Cr.P.C. Making medical examination of a victim a medico- legal emergency will impress upon the urgency of conducting a medical examination. • There needs to be a shift from mere evidence collection to present model of insisting on treatment by doctors. Rule 5 of POCSO Rules specify that treatment should include care for injuries, STD, HIV, Pregnancy testing, Emergency contraception, psychological counselling. Section 357 C Cr.P.C. insists that such treatment should be freeof cost and non compliance of such treatment can drag the doctor to one year imprisonment or fine. Every doctor/hospital should provide comprehensive care which also includes rehabilitation and follow up care. • Better implementation of the Protection of Women from Domestic Violence Act, 2005 and prevention of Domestic Violence is necessary for creating a safe environment for children and prevent abuse from persons in the house. • Considering all forms of sexual offence as a grave offence and not just treating penile penetration as one. Also, it should be understood by doctors, police lawyers, courts and all stakeholders that the law recognises even non-penetrative acts and penetrative acts into anus/oral/urethra/vagina by either penis or objects or body parts (finger) where there is no medical evidence of rape as severe crimes. • The documents provided by police (reports etc.) are in local language and parents are forced to sign without a translational verification. Many a time it is found that the facts are stated incorrectly. It would be helpful if the documents provided by police to victim’s parents at the time of reporting and whole process of legal proceeding to be in a widely understood official language with a provision of translation in local language if required. • It is important to develop a good childcare programme to support stressed, working parents and families in difficult circumstances. • Setting up of family resource centres and foster care programmes where the children who have been abused by parents can receive love and care. • Training law students to help the victim refresh their memory, accompany them to court and be with them during depositions will help. • Documenting best practices in handing Child Sexual Abuse cases since POCSO has come into effect will help serve as a guideline for future cases • Social workers need to be trained so that they can better deal with poor and with children in difficult circumstances. • An accountability within the judicial setup of having a report to check if the judges have followed the guidelines in place in the administration of justice.

• Victims should only be called in evenings for deposition, have permanent and exclusive judges to try POCSO cases, and have dedicated public prosecutors. There should be an audio-visual recording of the statements first given by child so that the child does not have to appear again and again for giving statements. This will reduce their pain and also help improve the conviction rate by reducing conflicting statements. The delay and the time gap between proceedings is a test of a child’s memory and any conflict in the statements on the same issue aids the defence side. • Educating children about pornography based on US model. • Intervention of the support at the initial or at the beginning of the case and approaching a case from the victim’s perspective and not the culprit’s. • Proper procedure and set guidelines should be followed for the collection of FSL Reports. Framing guidelines and stricter timelines for addressing abuse cases should be done. • Responsibility of the NCPCR to monitor the implementation of the Act and come out with reports in this context. • An Annual Report on the subject should be presented with a comprehensive data of the improvements and changes due to monitoring. • Medical procedures are far from being child friendly, a mother has to wait with toddler 2 hours in police station and 3 hours in hospital, to get the medical checkup done. Doctor’s attitude towards victim and parents were unfriendly. Good private hospitals can be identified who can live up to the expectations and they can be assigned with the task of legal medical examination in case of reported abuse, thus enabling the parents to choose based on their economic condition. At the same time training for the government hospitals is a must on how to deal with the victims and parents in a sensitive manner. • There are various incidents where police have visited the house of the child to record a child's statement while in uniform, as against the requirements stated under the POCSO Act of being in plain clothes while reporting. Police professionals have spoken to parents in disheartening language and provided them with misguided information about hearings and legal procedures. This has become a norm that police and officials only oblige when media is involved, there are cases where parents have reached out without media support and they call it ‘horrible experiences’. Better enforcement of laws while recording child’s statement and provision of mandatory training on POCSO to police officials will help ease the pain of the victims of these heinous crimes.

• An effort should be put in by the High Courts of each state to understand how many courtrooms have adopted the child friendly procedures and how many judges have complied with the existing guidelines on the same. • Giving or grant of travel and other allowances to the witnesses or victims. • Setting up a procedure to check the compensation disbursed cases under POCSO Act. • Deployment of enough policemen for the population of the country. • Developing a culture of research and analysis to understand the psyche of offenders and be equipped to deal with each category of offenders. • Understanding and identifying if the cases under POCSO Act has been filed to target inter-cast and inter-community relationships by the people. • National Plan needs to be chalked out in 6 broad areas: research, public awareness, education, training, law and policy, services. • During trial, the guidelines laid down in the case of Sakshi v. Union of India should be strictly adhered to. • Documenting the best practices and digitizing cases which have been disposed of should be done which serves as a guideline for future cases. • Finally, sensitizing the masses and stakeholders by using videos and conducting compulsory workshops.

Conclusion

Child Sexual Abuse is a form of terrorism against our children. As adults, we owe our children a safe, happy and fulfilling childhood. Crimes against children are the worst forms of cruelty, especially because they violate the basic trust and care that a child expects from an adult. Consistently drawing attention to the deficient laws on Child Safety, Mr. Rajeev Chandrasekhar made continued interventions in the Parliament, written thought provoking articles in the National media, engaged with State Governments and taken up the cause in the State High Courts. Through the effort of NCPOC, he intends to help the government frame a policy that will ensure safety and well-being of children. The two-day event highlighted the glaring gaps that exist in the laws and institutional response to Child Sexual Abuse, and holds that children will remain exposed and vulnerable to sexual assault until the Government commits to a roadmap to ensure the safety of our children.

Regular engagements with diverse stakeholders - parents, students, teachers, counsellors, school managements etc. apart from academics, legal experts in deliberations has broken the conspiracy of silence making the parents come out and report the crimes that their child suffered and ensured a more proactive approach by stakeholders to child safety. Today, because of such efforts, people are more aware about the crimes that exist in the society. The efforts must not stop as it is only now that the institutions and the government is waking up to the realization that we need to do more.

To make our nation safe for children, better Policing, increasing Accountability, bolstering mechanisms for Prevention, and ensuring swifter Prosecution should be the approach of stakeholders involved. Everyone should work together to achieve the aim in the journey to make cities / villages / towns a safer place.

Mr. Chandrasekhar’s aim was to take this issue out which is often brushed under the carpet leaving the criminals scot-free and those who are accountable to protect children as unaccountable. People need to acknowledge that these shameful crimes exist and awareness is the only way this can be addressed. CSA is a form of terrorism against the children. Only if children are provided safe and healthy childhood can they become healthy citizens. He welcomes feedbacks and participation from stakeholders, media and masses; share invaluable thoughts and experiences as responsible stakeholders in our fight against sexual abuse of children.

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