Two children recently came before the courts seeking protection from fathers who they allege have sexually assaulted them. In both cases, the courts ruled against the children – according to the courts, the sexual abuse did not actually take place. In the first case, a sixteen-year old girl in Thane filed a complaint with the police claiming her father had raped her multiple times. When the case eventually made it to court two harrowing years after she first made her complaint, the child collapsed under a gruelling cross-examination that, shockingly, made her sexual history the subject of discussion. She retracted her complaint, saying she had made it up, and in an unprecedented turn of events this past December, the court slapped perjury charges on her, aiming to make an example of her. The second case is the more recent ‘French diplomat case’ from Bengaluru, where five years after being accused, a father has been acquitted of the charge of sexually assaulting his four-year old daughter – charges raised by his wife, the child’s mother. In this instance, the complainant mother was the person put on the dock, her sexual history was judged and her morality and lifestyle were found wanting. The courts said she was not a credible witness and the case collapsed. I do not wish to get into the merits of either case – I will leave that to people better versed at law than I am. My concern is the survivor child and what happens to her.
Criminal law is concerned with offenders: who the perpetrator is, proving his guilt or innocence, and if guilty, meting out punishment. For a child who has suffered sexual abuse, all of that is frequently considered to be beside the point. Stop for a minute and imagine yourself as that child. Imagine having to summon up the courage and find the words to tell someone in your life that a person who they know, respect and trust has been hurting you. Imagine being a child riddled by the guilt of having to ‘tell on’ someone you know and maybe love. Imagine being a child, so young, that you do not yet have the words to talk about what is being done to you. Imagine being a child so horribly confused and ashamed by your body’s response to being touched in a sexual manner that you can never tell anyone about it. Imagine being the child who tells – and the next thing you know your family has turned against you because of the shame you have brought; your father, or grandfather or uncle who you accused is in jail, and with his income gone your family is on the brink of ruin. If you were that child, what would you be concerned with?
Children in such cases frequently retract their statements especially when the perpetrator is someone they know. A study by the National Law School of India, Bengaluru found that 85.3% of victims – in cases charged under the Protection of Children from Sexual Offences Act (POCSO), turned hostile when the accused was someone they knew. When you look at that fact together with Crime In India Report of 2015, which found that in 94.8% of cases filed under POCSO the perpetrator is a person known to the child, you quickly realise the complexity of the pressure that the survivor child faces. Her testimony and resolve cannot be expected to pass the brutal test of time and cross-examination that a criminal trial imposes.
Criminal jurisprudence relies on evidence, proof and credible witnesses. In cases of child sexual abuse, however, material, ‘credible’ evidence, be it DNA, sperm, physical signs of assault or resistance, are often difficult to procure and examine. This is so for a variety of reasons, including institutional incompetence to the amount of time that passes between the incident and the reporting, as victims (or their supporters) try to make sense of the horror of what has transpired, and then somehow gather up the courage to approach the criminal justice system. Imagine being the child who has been violated and now has to repeatedly recount to unfeeling strangers what was done to you and how. Reliving the details of something dreadful, not being allowed to forget for however long it takes the wheels of justice to creak into motion. Having your body inspected for traces of your humiliation and terror. Imagine being a mother and learning that you have failed to keep your child safe. That she has been hurt, and that the person who has hurt her is your own father or brother. What if it’s your husband? How are you supposed to believe that is even possible? What does that mean about you? About him? About the life and history you thought you shared? Imagine being a father, knowing your relative or friend or neighbour, someone your child called ‘uncle’ has broken her trust, and yours, and has instead used her and hurt her.
This is the emotional and psychological minefield that must be traversed in almost every case of child sexual abuse. Child abuse, as we know, can carry on for years before it is identified and understood, even by the victim herself. Child abuse is frequently couched in love and affection, requiring no brute physical force, leaving no outward physical markings. The abuse relies heavily on coercion, threats and the manipulation of an emotionally immature and vulnerable person who is often in no position to resist or to defend herself, or to get help to stop it. Criminal law is too blunt an instrument to deal with any of this. And yet it is the only instrument we have. It is the only response we have mandated. It concerns itself with finding facts – cold, harsh, unfeeling facts. Where is the comfort in that? Whose job is it to hold the child, and make sure she is restored to wholeness and safety?
Child protection requires an effective system of response, but this must be a human system, not a mere legal instrument. We have to invest in human services that are trauma-informed. Not next year or the year after, but now. We have to do this so that every person in the justice system, starting first with judges themselves, is acutely aware of the extent to which the child’s life has been devastated, and are equipped to deal with the child keeping that harsh truth front and centre. We have to invest in training real people to be a support to children and their families. These should be people who live in the communities where the hurt child lives, investing in empowering informal, accessible systems of response and care, rather than endlessly writing laws and policies in which nonexistent experts and mental health professionals provide undefined ‘support’ to victims. We have a law that demands the mandatory reporting of even an allegation of child abuse, and while that may get us a pat on the back, let us remember that in the five years since we enacted that law we have not moved one step closer to financially providing for the framework of care that a survivor child actually needs.
Yes, let us strengthen the law by all means. Let us file appeals in cases where justice has not been served and build ‘child-friendly’ courts. But let us not for a minute think that a child’s well-being and safety will be met by criminal law alone. Let us acknowledge that legal systems can’t help but be inimical to the child and might add to the devastation of her world. Let that therefore not be our only response. Because when a child comes before us seeking protection it’s fair to say that at the very least the hurting has to end, and she must endure no further harm.
Atiya Bose is the executive director of the NGO Aangan.