New Delhi: A stuffed monkey, a bright blue Doraemon plushie, a Chhota Bheem, and a carrom board are among the several toys scattered around a small waiting room tucked away in a nondescript Delhi court building.
Right next to the waiting area is another room with sofas and a screen, where child victims of sexual abuse can make their statements in a supportive environment, and away from the accused offender and lawyers.
Environments like this are intended to reduce the trauma for children going through the legal process, but these are not necessarily the norm.
When ThePrint visited a Protection of Children from Sexual Offences (POCSO) court just across the Delhi border in Uttar Pradesh, for instance, there were no board games or soft toys in sight. When it’s time to depose, child witnesses here are not shielded from the proceedings by walls and screens.
The POCSO Act, as well as Supreme Court judgments, lay out various guidelines for examining victims and recording evidence so as to make the process less upsetting.
Recommended measures include creating a “child-friendly atmosphere” in courts, safeguarding kids from “aggressive questioning”, ensuring there is no contact between the child and accused while recording evidence, and provisions for in-camera trials, among other things. However, these protocols are not always followed, experts say.
“In terms of supporting survivors and centring them in the judicial process, strides seem to have been taken only in the metropolitan cities, like Delhi, Mumbai, Bengaluru,” said Nimisha Srivastava, executive director of Counsel to Secure Justice (CSJ), a non-profit that provides legal and psychosocial support to child sexual abuse victims.
She and other experts concur that while criminal laws are periodically tightened to punish offenders, measures for victim welfare are implemented less swiftly.
While a lack of support infrastructure affects all survivors of sexual violence, the challenges are heightened for child victims of incest or familial sex abuse and rape, experts say.
In the first report of this two-part series, ThePrint explored the devastating pressures that many children face while reporting sexual assault at the hands of a family member under POCSO.
Many such children are rejected by their own relatives, who may become angry over the social stigma of a sexual assault case, as well as the resulting financial loss, if the accused is the family’s breadwinner.
In this scenario, a legal system that is not equipped to adequately handle child victims of incest may not just exacerbate trauma but serve as the last nail for the case, experts say.
As reported previously, in many cases prosecution is never completed because the minor victims turn hostile.
“Everything just gets amplified in incest cases,” said Avaantika Chawla, assistant professor at Jindal Global Law School, who has represented several child sexual abuse victims in the past. “The system is already struggling, and everything just gets magnified in incest cases, because there’s just so much more that comes into play.”
Also read: How courts are ‘creatively interpreting’ grey zone between minors & consent in POCSO cases
Severe punishments, low convictions
The Protection of Children from Sexual Offences (POCSO) Act, 2012, is India’s first comprehensive law to deal with the sexual abuse of children. It is also a stringent law, with amendments in 2019 introducing higher minimum punishments as well as the provision for the death penalty.
However, between 2012 and 2021, only 14 per cent of POCSO cases resulted in convictions, according to research conducted across 486 district courts by the Justice, Access and Lowering Delays in India (JALDI) initiative of the Vidhi Centre for Legal Policy. The study analysed over 2.30 lakh cases.
According to the latest available data from the National Crime Records Bureau (NCRB), offenders are known to victims in 97 per cent of POCSO cases. Family members are the accused offenders in 9 per cent of total cases registered under the law.
Under POCSO, a sexual assault by a child’s relative through blood, adoption, or guardianship, or by those inhabiting the same domestic household (such as a step-parent) counts as an “aggravated” offence, with higher punishment.
For aggravated penetrative sexual assault, the minimum punishment is 20 years, and could go up to life imprisonment or the death penalty. For aggravated sexual assault, a convict faces five to seven years of imprisonment.
ThePrint’s previous report on incest cases highlighted how severe punishments can be hurdles in reporting cases and also during trial, with many victims turning hostile due to family pressure and fears over financial safety.
But this is not the only issue affecting the prosecution of incest cases.
Experts told ThePrint that uneven implementation of support services for child victims — especially those who lack a secure family environment — have an adverse effect not just on victims but the judicial process.
‘My life wasn’t like a normal child’s’
When 18-year-old Radhika (name changed) was just 10-years-old, she accused her “nana” — her maternal grandmother’s partner — of molesting and trying to rape her over a period of three days.
He was subsequently booked under Section 4 of the POCSO Act, along with Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code, but Radhika’s life went up in flames too.
Court records show that she and her mother claimed they were thrown out of their house by Radhika’s stepfather because they filed the case. When Radhika’s mother died in 2018, the young girl was left without any home to return to — except for that of her maternal grandmother.
During this period, Radhika turned hostile and claimed that she had filed a false case against her nana, but an alert POCSO court in Delhi recommended that she should be moved to a shelter home where she could receive counselling and “depose without any force, coercion, threat, or under influence”, show legal records accessed by ThePrint.
Radhika is now supporting the prosecution again.
Recalling her experience of dealing with the criminal justice system before counselling, Radhika told ThePrint: “My stress had increased and I used to always think about the court. I couldn’t focus on my studies as well. I knew that my life wasn’t like normal children, and this remained in my head.”
Staying away from her family, receiving counselling, and spending time with other children helped her gather the strength to face legal proceedings again.
“When I was sent to the NGO, I used to stay very quiet there. However, there were several other children also there. I used to feel a little better with them,” she said.
“I was also counselled a lot of times. Didi (sister) taught me a lot of things, and I also started talking. Once I started talking more, I felt relieved. Slowly, things started getting better,” she said.
Notably, the Delhi high court in a 2009 judgment had issued guidelines for the police, hospitals, child welfare committees (CWCs), courts, prosecutors, and other authorities for sexual abuse and incest cases.
It had outlined the role of a “support person” as someone appointed by the CWC to oversee a child’s care during the pendency of a trial. Such a person, it said, should be someone “working in the capacity of a counsellor” with a recognised and registered crisis intervention centre, approved by the Delhi Commission for Women (DCW).
It had specifically mentioned that in cases of incest, if the child is staying in a shelter home, the family members should be allowed to meet him or her only in the presence of a “support person” so that no effort could be made to pressurise or influence the victim to change their statement.
Radhika’s story illustrates the importance of robust support infrastructure and processes in child abuse cases, but while such procedures are mandated under the law and by judgments, they are not evenly implemented everywhere, according to legal experts.
A tale of two POCSO courts
In 2017, the Supreme Court issued directives to establish “special centres for the examination of vulnerable witnesses” in criminal cases. Last January, the court expanded the definition of a “vulnerable witness” to encompass sexual assault victims of any age and gender.
High courts were also directed to adopt and notify a vulnerable witnesses deposition centres (VWDC) scheme within two months. “The high courts shall ensure that at least one permanent VWDC is set up in every district court establishment (or additional court establishments) within a period of four months,” the order added.
These specialised courtrooms are meant to provide a safe and supportive environment for such witnesses to give their statements, but these are yet to see the light of day in many districts.
At a Delhi POCSO court ThePrint visited last week, obvious efforts had been made to create a “child-friendly” environment — from the toy-filled waiting room to the comfortable vulnerable witness deposition centre adjoining it.
The VWDC is where the child is brought in for her or his statement, accompanied by a support person, who is assigned to assist the child throughout the process of investigation and trial.
In a third room, the judge presides over the proceedings alongside other key stakeholders such as the public prosecutor, a lawyer from the Delhi Commission for Women, and the investigating officer. The accused is seated behind a glass wall in this same room.
During the hearing, the support person listens in using headphones and only poses relevant questions, as permitted by the judge, to the child.
While Section 33(6) of the POCSO Act empowers the special judge appointed under the law to disallow aggressive questioning and “character assassination” of the child, defence lawyers at times do not pay heed, said legal experts familiar with POCSO court proceedings.
Delhi’s strong VWDC infrastructure, described above, protects minors from such lines of inquiry, since judges are able to disallow inappropriate questions before they reach the child. Support persons also play an important role in ensuring that only filtered information is conveyed to the child during a hearing.
The scenario is less ideal in some other courts.
When ThePrint visited a POCSO court in Uttar Pradesh, the premises were devoid of any playthings, colour, or protective screens.
Instead, the courtroom was swarming with men dressed in black coats, waiting for their turn to argue for their clients.
A judge at this court told ThePrint there is no specific infrastructure for vulnerable victims in POCSO cases in the state. However, he added, that on his own initiative he often records children’s statements in his chambers rather than the courtroom.
In such hearings, lawyers from both sides are present, but he makes sure he is the only person who directs questions to the child, the judge said.
Nevertheless, without the filters of walls and screens — which are present in Delhi — the child can hear the conversations and allegations levelled by the lawyers.
The judge also claimed that defence lawyers continue to try to ask questions about the child’s sexual history or on their understanding of rape, despite such lines of questioning not being allowed by the law.
Danger of ‘revictimisation’
When a complaint is filed under POCSO, numerous stakeholders are required to act under the law, starting with the police.
The POCSO Rules 2020 state that where the police have a reasonable apprehension that the offence has been committed, or is likely to be committed, by a person living in the same or shared household as the victim, they shall produce the child before a CWC within 24 hours of receiving such information.
CWCs are established in every district under the Juvenile Justice (Care and Protection of Children) Act 2015, and are tasked with taking action for rehabilitation of sexually abused children who are in need of care and protection, among others.
In incest cases, the CWC is required to assess within three days whether the child needs to be taken out of the custody of their family or shared household and placed in a children’s home or a shelter home.
Per the POCSO rules, the CWC can also provide a “support person” to assist the child throughout the process of investigation and trial.
The POCSO rules define a support person as an individual or organisation working in the field of child rights or child protection. A support person may also be “an official of a children’s home or shelter home having custody of the child, or a person employed by the DCPU (District Child Protection Unit)”.
Until the trial is completed, the CWC can request monthly reports from support persons regarding the child’s well-being, care, progress towards recovery from trauma, family situation, and so on. The CWC is also responsible for ensuring the child’s education is resumed or continued.
Vaidehi Subramani, chairperson of the child welfare committee in Delhi’s Lajpat Nagar, described support persons as performing crucial functions in POCSO cases.
“Support persons play the roles of a guide, change agent, coordinator, mediator, counsellor, mentor, resource person, advocate of child rights, etc. They also help the child in changing schools, finding vocational courses, and coordinating with DLSA (Delhi State Legal Services Authority) for interim compensation,” Subramani said.
“They handhold the child till the testimonies and final stage of the case.”
However, support persons only come into the picture after the initial reporting, medical examination, and recording of the victim’s statement under Section 164 of the Code of Criminal Procedure (CrPC).
According to Shivangi Goenka, CSJ’s lead social worker for survivor support, the lack of this kind of support at earlier stages of dealing with the police, medical examination, and so on might make the child’s “revictimisation” more likely.
“The stakeholders in the process sometimes disregard the need to be trauma-informed while interacting with the child. There have been instances of the police blatantly commenting that the child is making life difficult for their own families, or lying about the abuse altogether,” Goenka said.
“By the time a support person is appointed, the child has already gone through the process of reporting the case, the medico-legal examination, and the 164 statement. The experience of those days, as shared by them and their families, adds to the child’s revictimisation,” she added.
A ‘bridge’ between stakeholders
Subramani believes expanding the role of a support person could enable them to act as “bridges” across stakeholders of a case.
She proposes that they could be brought in right from the time of filing the FIR and be available to assist child victims throughout the entire process.
Goenka, too, emphasised the importance of ongoing collaboration among stakeholders, especially when it comes to supporting children in cases of incest.
In her experience, children benefit when the court recognises and acknowledges the crucial role played by CWCs and support persons. This is especially because children in incest cases often find it difficult to find such support systems within their households.
“The CWC appointing a social worker trained in working with children as a support person could bring together various resources for the child’s support,” Goenka said.
She also stressed the importance of regularly training and sensitising all stakeholders on how to work with children to prevent the retraumatization of minor victims.
However, while the support persons in Delhi seem to have been providing all-round care to child victims, the POCSO judge in Uttar Pradesh claimed that he had never seen a support person accompany the child.
“Either they are not being appointed, or they are not turning up in courts to support the child,” he told ThePrint.
“In terms of support and rehabilitation mechanisms (for the victim), several concerns are still not recognised at a lot of places,” said CSJ’s Nimisha Srivastava.
“Every time there is an Unnao rape case or a Kathua rape case, instead of giving money to every District Child Protection Unit to provide support persons, the law is changed to make it more punitive,” she added.
‘What happens after she turns 18?’
Lack of aftercare facilities for victims of incest once they turn 18 and age out of the system is a pressing issue, according to child rights activists.
Srivastava highlighted the traumatic situation that arises when victims turn 18.
“Once the child turns 18, what happens then? She cannot stay in a children’s home. We had an incest case in which the girl had to come back home after turning 18,” she told ThePrint.
For victims who must return to their families, Srivastava emphasised the need for careful discussions to facilitate their transition, which can be a “difficult and messy time”.
“If she has to go back to the family, then some conversations need to happen for facilitating the transition back. Most importantly, the survivor’s safety needs to be ensured. We work to make sure there’s no possibility of her being in an abusive environment again, which again is a complicated process,” she said.
As for Radhika, fresh into adulthood, the future seems uncertain, but she is hopeful.
“In my family, girls usually don’t study, so my focus right now is to find a way to work, and get ahead in life,” she said.
(Edited by Asavari Singh)
Also read: Raped by ‘uncle’, a 13-yr-old mother battles stigma — ‘if we keep that child, who’ll marry her?’