Sakshi Education
-Mohan Sai Dutt, M.A.(Economics)
The recent approval to the ordinance for changes in the Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC) and the Protection of Children from Sexual Offences (POCSO) Act is seen as a great step towards ensuring the safety of women and the girl child in India.
Government said it has taken serious note of incidents of rape in various parts of the country. While expressing deep anguish over such incidents, it has been decided to devise a comprehensive response to deal with the situation.
In view of the urgency and seriousness of the issue, the Cabinet approved an Ordinance to be promulgated to provide for stringent punishment for perpetrators of rape particularly of girls below 16 years age and below 12 years of age.
Death penalty has been provided for rapists of girls below 12 years of age.
It has also been decided to put in place a number of measures for speedy investigation and trial of rape cases.
Salient features
Some of the salient features of the Law include - minimum punishment in case of rape of women has been increased from rigorous imprisonment of 7 years to 10 years, extendable to life imprisonment; in case of rape of a girl under 16 years, minimum punishment has been increased from 10 years to 20 years, extendable to imprisonment for rest of life, which means imprisonment till that person’s natural life.
For speedy investigation and trial, the government has suggested time limit for investigation of all cases of rape, which has to be mandatorily completed within two months. Time limit for completion of trial of all rape cases has also been prescribed and it has to be necessarily completed in two months and six months’ time limit for disposal of appeals in rape cases has also been prescribed.
Restrictions on bail
It has been prescribed that there will be no provision for anticipatory bail for a person accused of rape or gang rape of a girl under 16 years. It has also been provided that court has to give notice of 15 days to Public Prosecutor and the representative of the victim before deciding bail applications in case of rape of a girl under 16 years of age.
Other Measures
New Fast Track Courts will be set up in consultation with States/UTs and High Courts; Creation of new posts of public prosecutors and related infrastructure in consultation with States/UTs; Special forensic kits for rape cases to all Police Stations and hospitals; and National Crime Records Bureau will maintain a national database and profile of sexual offenders.
This data will be regularly shared with States/UTs for tracking, monitoring and investigation, including verification of antecedents by police, it added.
Crux
The ordinance has some positive aspects such as time-bound investigation, trial and disposal of appeals, restrictions on bail, new fast-track courts; special forensic labs, and the extension of "one stop centre" scheme for assistance to victims to all districts in the country.
All these positive aspects shouldn't obscure the concerns related to the ordinance. This ordinance is more a reflection of popular demands rather than a result of proper research. This aspect was highlighted by the Delhi High Court when it questioned the Centre on whether any research or scientific assessment was conducted before coming out with an ordinance to award death penalty for rape of girls below the age of 12. There is little evidence to prove that death penalty serves as an effective deterrent.
When abused by a family member?
The death sentence is even more problematic in rape cases where the perpetrator is someone from the family of a victim. There are realistically very little chances that a victim below the age of 12, who is sexually abused by a family member or a relative, will come forward and file a complaint, especially, knowing that the complaint could mean death to her father, brother or a close relative. This would mean lesser number of cases being reported.
The death penalty also increases the chances of more "rape and murder cases". Because of the fact that the disclosure of rape by a young victim could lead to death penalty, child abusers would prefer to play safe by killing the victim.
Another problematic part of the ordinance is lack of gender neutrality even though the POCSO Act is gender neutral. The ordinance provides for harsher punishments for rapists of only female victims of various ages. In reality, young boys are equally susceptible to sexual abuse. It doesn't make a difference whether a 12-year-old boy or a 12-year-old girl is raped. A child is a child, irrespective of the gender. Gender neutrality needs to be restored.
Gender neutrality
There are reports that the Centre is planning to amend the POCSO Act to make it gender neutral. It is a welcome step and should be done at the earliest.
Another issue with the amendment is that there is no thought on letting adult survivors of sexual abuse in childhood to file a complaint against their abusers. According to a 2006 report published by Children at Risk in Ireland Foundation (CARI), "A sexual aggressor who begins abusing during adolescence and is not rehabilitated is estimated to commit an average of 380 sexual offences during his lifetime."
Since, a majority of children do not disclose sexual abuse until their early adulthood, there is no provision in the law that would allow child sexual abuse survivors to file a complaint against their childhood abuser/s at a later stage. Instead, an abuser becomes a serial offender. The provision has to be added and it will be effective in stopping serial offenders of child sexual abuse.
The legal aspects come into the picture when a complaint is registered. At times, registering the complaint in itself is a difficult process especially when the perpetrators are provided political patronage. Political clout of the abusers and use of threats often stop the victims from filing complaints.
Social stigma
There is another significant issue which if not addressed would leave all these legal initiatives ineffective and that is the lack of awareness about child sexual abuse. The Delhi High Court also blamed the government for not trying to address the "root cause of the problem" because there have been no serious measures taken by the government to educate people on the issue.
Child sexual abuse is the least talked about subject in a conservative society like ours and despite several cases related to child sexual abuse that were highlighted recently in national and international media, majority of the population continues to live in denial.
The social stigma attributed to rape victims is so huge that unfortunately it is the victim who has to bear the burden of shame rather than the perpetrator. According to a UK-based charity, National Society for the Prevention of Cruelty to Children (NSPCC), more than 72 per cent children do not tell anyone when experience sexual abuse.
The lack of awareness about the issue is so huge that many a times a child does not even know that s/he is being sexually abused. This realisation usually comes later and many victims suffer from serious mental health issues. Even parents are not aware about the issues related to child sexual abuse especially its long-term effects on a child's psyche. In such a situation, they are not able to prepare their children to report or fight such abuse. A child sexual abuse victim usually suffers in isolation for a long time.
The approval of the ordinance is a positive step. But Parliament should take these aspects into consideration when this ordinance is laid before it for approval. There is also a need for civil society to take the issue of child sexual abuse seriously and efforts need to be made at every level to increase awareness about it.
Government said it has taken serious note of incidents of rape in various parts of the country. While expressing deep anguish over such incidents, it has been decided to devise a comprehensive response to deal with the situation.
In view of the urgency and seriousness of the issue, the Cabinet approved an Ordinance to be promulgated to provide for stringent punishment for perpetrators of rape particularly of girls below 16 years age and below 12 years of age.
Death penalty has been provided for rapists of girls below 12 years of age.
It has also been decided to put in place a number of measures for speedy investigation and trial of rape cases.
Salient features
Some of the salient features of the Law include - minimum punishment in case of rape of women has been increased from rigorous imprisonment of 7 years to 10 years, extendable to life imprisonment; in case of rape of a girl under 16 years, minimum punishment has been increased from 10 years to 20 years, extendable to imprisonment for rest of life, which means imprisonment till that person’s natural life.
For speedy investigation and trial, the government has suggested time limit for investigation of all cases of rape, which has to be mandatorily completed within two months. Time limit for completion of trial of all rape cases has also been prescribed and it has to be necessarily completed in two months and six months’ time limit for disposal of appeals in rape cases has also been prescribed.
Restrictions on bail
It has been prescribed that there will be no provision for anticipatory bail for a person accused of rape or gang rape of a girl under 16 years. It has also been provided that court has to give notice of 15 days to Public Prosecutor and the representative of the victim before deciding bail applications in case of rape of a girl under 16 years of age.
Other Measures
New Fast Track Courts will be set up in consultation with States/UTs and High Courts; Creation of new posts of public prosecutors and related infrastructure in consultation with States/UTs; Special forensic kits for rape cases to all Police Stations and hospitals; and National Crime Records Bureau will maintain a national database and profile of sexual offenders.
This data will be regularly shared with States/UTs for tracking, monitoring and investigation, including verification of antecedents by police, it added.
Crux
The ordinance has some positive aspects such as time-bound investigation, trial and disposal of appeals, restrictions on bail, new fast-track courts; special forensic labs, and the extension of "one stop centre" scheme for assistance to victims to all districts in the country.
All these positive aspects shouldn't obscure the concerns related to the ordinance. This ordinance is more a reflection of popular demands rather than a result of proper research. This aspect was highlighted by the Delhi High Court when it questioned the Centre on whether any research or scientific assessment was conducted before coming out with an ordinance to award death penalty for rape of girls below the age of 12. There is little evidence to prove that death penalty serves as an effective deterrent.
When abused by a family member?
The death sentence is even more problematic in rape cases where the perpetrator is someone from the family of a victim. There are realistically very little chances that a victim below the age of 12, who is sexually abused by a family member or a relative, will come forward and file a complaint, especially, knowing that the complaint could mean death to her father, brother or a close relative. This would mean lesser number of cases being reported.
The death penalty also increases the chances of more "rape and murder cases". Because of the fact that the disclosure of rape by a young victim could lead to death penalty, child abusers would prefer to play safe by killing the victim.
Another problematic part of the ordinance is lack of gender neutrality even though the POCSO Act is gender neutral. The ordinance provides for harsher punishments for rapists of only female victims of various ages. In reality, young boys are equally susceptible to sexual abuse. It doesn't make a difference whether a 12-year-old boy or a 12-year-old girl is raped. A child is a child, irrespective of the gender. Gender neutrality needs to be restored.
Gender neutrality
There are reports that the Centre is planning to amend the POCSO Act to make it gender neutral. It is a welcome step and should be done at the earliest.
Another issue with the amendment is that there is no thought on letting adult survivors of sexual abuse in childhood to file a complaint against their abusers. According to a 2006 report published by Children at Risk in Ireland Foundation (CARI), "A sexual aggressor who begins abusing during adolescence and is not rehabilitated is estimated to commit an average of 380 sexual offences during his lifetime."
Since, a majority of children do not disclose sexual abuse until their early adulthood, there is no provision in the law that would allow child sexual abuse survivors to file a complaint against their childhood abuser/s at a later stage. Instead, an abuser becomes a serial offender. The provision has to be added and it will be effective in stopping serial offenders of child sexual abuse.
The legal aspects come into the picture when a complaint is registered. At times, registering the complaint in itself is a difficult process especially when the perpetrators are provided political patronage. Political clout of the abusers and use of threats often stop the victims from filing complaints.
Social stigma
There is another significant issue which if not addressed would leave all these legal initiatives ineffective and that is the lack of awareness about child sexual abuse. The Delhi High Court also blamed the government for not trying to address the "root cause of the problem" because there have been no serious measures taken by the government to educate people on the issue.
Child sexual abuse is the least talked about subject in a conservative society like ours and despite several cases related to child sexual abuse that were highlighted recently in national and international media, majority of the population continues to live in denial.
The social stigma attributed to rape victims is so huge that unfortunately it is the victim who has to bear the burden of shame rather than the perpetrator. According to a UK-based charity, National Society for the Prevention of Cruelty to Children (NSPCC), more than 72 per cent children do not tell anyone when experience sexual abuse.
The lack of awareness about the issue is so huge that many a times a child does not even know that s/he is being sexually abused. This realisation usually comes later and many victims suffer from serious mental health issues. Even parents are not aware about the issues related to child sexual abuse especially its long-term effects on a child's psyche. In such a situation, they are not able to prepare their children to report or fight such abuse. A child sexual abuse victim usually suffers in isolation for a long time.
The approval of the ordinance is a positive step. But Parliament should take these aspects into consideration when this ordinance is laid before it for approval. There is also a need for civil society to take the issue of child sexual abuse seriously and efforts need to be made at every level to increase awareness about it.
Published date : 04 May 2018 03:08PM
