Gender

The Law Only Works When We Make it Work. Even When the Victim is a Child.

A recent case of sexual assault on a young girl with a disability made it clear that in order to get justice, you still need proactive, persistent help and friends in high places.

Children in reflection. Credit; Bachellier Christian/Flickr CC BY NC-ND 2.0

Children in reflection. Credit; Bachellier Christian/Flickr CC BY NC-ND 2.0

India has great laws to protect children from sexual violence. Just don’t expect them to work. At least not on their own. Especially if you happen to be a girl. Or poor. Or a person with disability. If you are unlucky enough to be all three, you really, really, really need a friend in court.

The girl I have in mind had just turned 13. The tutor who came to teach her brother had finished his lesson and was about to head off on his bicycle when her mother asked him to drop the girl at her grandmother’s house, some few hundred yards away. She sent the brother too, just to be on the safe side, though she wasn’t really worried. The tutor was known to them all, as was his family. It was a small village.

He cycled off with both children perched behind him. He then made up an errand for the boy and took the girl into a nearby field where he brutally raped her. Knowing she had a cognitive disability and that her speech was difficult for most people to understand, he perhaps thought he would get away with it.

Seeing her condition when she returned home, her parents thought at first that she had had an accident and they took her immediately to a local hospital. There the rape was discovered and she was referred to a government hospital in Dehradun.

Some of her family accompanied the child to the hospital (over an hour by road); the rest stayed home to file an FIR in the local police station. By then the child had told them that it was the tutor who had assaulted her but when the family informed the police of this, nothing was done, nor were the police ready to accept the FIR.

Because of the child’s cognitive disability, a local parents’ group had been approached for help and after a full day of wrangling with the police, an FIR was finally lodged. When it emerged that the tutor’s family was well-connected with the local mining mafia, however, it was clear than no arrest would be made.

This is where we came in. I am the director of the Latika Roy Foundation, a non-profit in Dehradun working for children with special needs. Someone from the parents’ group had posted about the case in the Dehradun Disability Forum and I responded. I asked Rizwan Ali, our in-house lawyer, to find out what he could and Rizwan plunged in, arriving at the hospital to meet the family and to see what needed to be done.

The parents were clearly out of their depth. Poor, non-readers, cowed by authority and devastated by what had happened to their daughter, they seemed unable to even process the reality of the rape, let alone deal with it. The child was bewildered and in pain. She had lost quantities of blood and required multiple stitches.

One of our counsellors came in to talk to her and her mother. Her father sat weeping in the hall. The chief of medical staff of the hospital reported the matter to the police and two officers did come to make notes, but there was no communication with the police thana under whose jurisdiction the case lay and the tutor was yet to be arrested.

Luckily, we have excellent relations with a senior police official. We were able to meet him in his home with the child’s father and in our presence and he called the inspector who was stalling the case. We heard only his side of the conversation, but it was clear that the inspector was trying to tell him that the tutor’s family weren’t to be messed with. Our guy told him in no uncertain terms that the “strictest action” would be taken if he shirked his duty.

The tutor was arrested an hour later.

Meanwhile, the tutor’s family was also moving heaven and earth to prove that he was a minor. They produced two documents, one from his school  saying he was 14 and the other from the panchayat saying he was 17. Both were accepted with no questions about the discrepancy even between the two, let alone the discrepancy with the truth, and their problems immediately diminished precipitously. At the same time, back in the village, they were trying to intimidate the girl’s family into settling out of court.

These kinds of things are so commonplace, they are almost to be expected. It is human nature to close ranks when one’s own are threatened, even if they deserve whatever is coming. And it is not surprising when family members plead for leniency for an erring son (witness the recent Stanford University rapist whose father said he shouldn’t go to jail at all – after all, he had only had “20 minutes of action”).

What is shocking in this case is the haphazard and random way the law was upheld and the extent to which sheer luck determined obtaining a reasonable outcome.

For example, following protocol, the girl’s clothing had been collected and kept safe for later examination, but until Rizwan insisted, no action was taken to collect a DNA sample from the accused. He had to take his complaint all the way to the highest ranking police officer in the state before it was acted upon.

And when the sample was finally procured, it was done not only in the presence of a magistrate (as is proper), but also in the presence of the girl – in direct violation of the Supreme Court ruling (Sakshi vs Union of India) which guarantees that a child who has been sexually attacked will not have to see the perpetrator in the courtroom. In this case, the accused was seated right next to the girl’s mother and she was next to the girl.

The list goes on and on. The child should have been provided with mental health support, but until our organisation got involved, none was offered. Her family should have been informed about the financial compensation the state was legally bound to provide and which the chief minister had a discretionary fund to contribute from. We found out about that only by chance. During statements in court, because of the child’s cognitive disability, a special educator should have been present. When our lawyer demanded it, the child’s court appointed lawyer argued that it wasn’t necessary and had never been done. When she finally gave in, she offered a sign language interpreter!

Today, nearly two years later, the accused has been found guilty and sentenced to three years in a juvenile home. The chief minister has disbursed Rs 20,000 as compensation and, in a surprise move, the District Legal Services Authority has awarded the highest possible amount of Rs 2 lakh, a clear admission of the state’s guilt and culpability. (This has still not been handed over, however.)

Rizwan has logged at least 30 court appearances in support of the girl and her family. He visited their home (a two hour road trip each way) to explain the proceedings five or six times; her parents have come to our office on multiple occasions. He has met lawyers, police officials and political functionaries countless times. Without his dogged, persistent, determined pursuit of justice, this case would have been buried.

As a civilised nation, we develop systems to prevent preferential treatment. Everyone should be equal under the law. But this experience has proven that unless you have a friend in the police station, the hospital, the court, the District Legal Services Authority and the chief minister’s office, those systems may as well not exist.

What have we learned? Know the law. Be proactive.

If, God forbid, someone you love is raped or sexually abused, do not assume that the police or the hospital will follow the directives which have been established. Demand that an FIR be officially filed, with a stamped copy for your own records. Ensure that the person’s clothes are saved. Insist on DNA testing of the accused. Protect the rape survivor from any confrontation with the perpetrator in court or anywhere else. If it is a person with a disability, she/he has the right to support while giving testimony, either from a special educator or a sign language interpreter. File for compensation with the state government.

The Protection of Children Against Sexual Offences Act, 2012 was designed to address gaps in the Indian Penal Code where children (including boys) are concerned. It’s a step in the right direction for an appalling 53% of the nation’s children who are sexually abused and violated. But that law – any law – is meaningless unless it is enforced.

The author is American by birth and a writer by profession. A mother of three, she has lived in India for the past 34 years with her Indian husband. She is co-founder and director of the Latika Roy Foundation, a voluntary organisation for children with disability in Dehradun. She blogs at www.latikaroy.org/jo

  • Olexandr Kalaur

    I don’t understand the title. It should be not “even”, but “especially when the victim is a child”. Recently a friend of mine started working as a law tutor https://preply.com/en/skype/law-tutors. He always says: all we do, we do for our children. I agree.