New Delhi: Death penalty for aggravated sexual assault on children may end up leaving fewer survivors while worsening the judiciary’s case burden, child rights experts opine.
The Union Cabinet Wednesday gave its nod to amend the Protection of Children from Sexual Offences (POCSO) Act, 2012, to include death penalty as the maximum punishment for aggravated penetrative sexual offences against children (under 16), with the proposal now headed for Parliament.
Calls for strict action against sexual assault on children intensified in the wake of last year’s Kathua gang rape and murder, which involved an eight-year-old victim. The anger that followed the crime forced the Narendra Modi government to crack down on such cases, leading to the introduction of death penalty for sexual assault on children.
‘Rape and leave to rape and kill’
According to Enakshi Ganguly of HAQ Centre for Child Rights, a Delhi-based NGO, she had been told by police and judges dealing with cases of sexual violence against children that death penalty may lead to a rise in the murder of victims, to silence them.
“Police and judges both tell us that earlier it was rape and leave, but now it will be rape and kill, in order to leave no evidence,” she said, “With this death penalty amendment, the government is attempting to satisfy public angst, but the reality is, the harder the penalty, the more difficult the conviction.”
Explaining her argument, Ganguly added that when it comes to the death penalty, judges are always looking for a reason to not send the person to the gallows.
“Judges themselves have told us that it will be very difficult to deliver convictions unless they are 150 per cent convinced,” she said.
When offenders are known
According to National Crime Records Bureau (NCRB) statistics for 2016, the last year for which the data was released, offenders were known to victims in 94.65 per cent of cases involving sexual assaults on children.
A report released by the Centre for Child and the Law-National Law School of India University (CCL-NLSIU), Bengaluru, and HAQ in 2018 said children retracted their statements when the offender was a family member or a known person.
Nicole Rangel of child rights organisation Leher said “child sexual abuse was not a one-time affair”, pointing out that there were often complicated dynamics at play.
“Child sexual abuse is complicated and it’s not one violent act. Children are not able to process this and they are abused repeatedly and it happens gradually over time,” Rangel said. “They form emotional bonds with the abusers and, many a time, they don’t want to send their fathers or uncles to the gallows. The abuser is also many times the provider of the family, which leads to the family being destabilised.”
“Clearing death penalty sounds macho… in the short run, but does not pan out well in the long run, with loopholes in investigation and procedural formalities,” she said, “Our district child protection units are so understaffed and unequipped, but no one looks there as it’s not the glamorous bit to catch headlines.”
Child rights lawyer Anant Asthana said death penalty may lengthen trials further since courts looked for even stronger evidence when sending someone to the gallows.
“For death to be granted, the quality of evidence needs to be very strong… There are also procedural steps, that it needs to be confirmed by the higher courts, and this leads the child’s case into a huge legal process,” he added. “How long can a child fight this?”
According to NCRB data for 2016, 89.6 per cent of trials under the POCSO Act were pending. The conviction rate in cases of child sexual offences, according to the same report, is as low as 24 per cent, while it stands at 28 per cent for child rape (sections 4 & 6 of the POCSO Act and section 376 of IPC).
A similar study by CCL-NLSIU in 2018 yielded yet more dismal conviction statistics for child sexual offences: 16.8 per cent in Delhi, 24 per cent in Assam, 19 per cent in Maharashtra, and 11 per cent in Andhra Pradesh.
Aware of the possible legal burden that may result from the amendments, Union Women and Child Development Minister Smriti Irani said Thursday that the government will set up 1,023 fast-track courts for child sexual abuse cases as well as pending rape trials.