Need for Judicial Accountability to Prevent Re-victimisation of CSA victims

A 15-year-old girl from Assam, Meena (name changed) eloped with her brother's friend. On her rescue, it was found that her 'lover' who portrayed himself as an 18-year-old, was 30

New Delhi, Jan 31: Addressing the media, Shraddha Walker's father said - "children above 18 should also be controlled and counselled". 27-year-old Shraddha was murdered and then chopped into pieces by her live-in partner. Her father believed that had the age of consent not been 18 years, his daughter would still be alive.

Two days later, the Hon'ble Chief Justice of India Justice DY Chandrachud suggested that the age of consent is reduced, claiming that many child sexual abuse (CSA) cases are 'romantic' in nature, posing a dilemma for courts while delivering judgment. He said that Parliament must look into the growing concerns regarding the age of consent (18) under the Protection of Children from Sexual Offences (POCSO) Act.

Meanwhile, where the Supreme Court has stated that child marriage is child rape, many High Courts have permitted underage marriages in the Muslim community.

The age of consent has become a debatable topic in the last few weeks.

Consent, in simple words, is to agree or give permission. Some argue that a child of 16-17 years of age is capable enough to give consent to a physical relationship. However, there are numerous factors that come to play. A child can be enticed or fooled, by a perpetrator who is way older than her, into giving consent.

A 15-year-old girl from Assam, Meena (name changed) eloped with her brother's friend. On her rescue, it was found that her 'lover' who portrayed himself as an 18-year-old, was 30. He convinced her to run away with her, raped her, and then sold her to a man in his mid-40s for marriage. After raping the child, this man again sold her to a 50-year-old for marriage. While prima facie, the case may seem like that of elopement and consent, it was in fact, trafficking and rape.

Enticing or kidnapping a minor for marriage or illicit intercourse has been a crime in India for over 160 years under the Indian Penal Code 1860 (section 361-366), with a punishment of up to 10 years.

Despite this, till 2013, no FIR was lodged in missing children's cases. It was presumed to be a non-cognizable offense. Before this, when a child went missing and the parents approached the police to lodge a complaint, the case was labeled as that of elopement and often dismissed.

The sad reality is that even when the cases are being lodged now, many of them are still dismissed in the courts as elopement cases.

If we look into the data of the National Crime Records Bureau (NCRB), in 2021, there were a total of 54,359 victims of CSA, of which 16,275 were in the age group of 16-18. Also, the number of perpetrators between the age of 16-18 were only 1,725. If we consider a minimum of one perpetrator per victim (not counting the cases of gang rape) then the 16-18 years old perpetrators are only 3% of the total number.

This data points to the fact that the so-called 'romantic relations' between the same age group are very low in CSA cases, and that most perpetrators, even in the case of 16-17 years old CSA victims, are much older in age.

There are 2.05 lakh cases under POCSO Act pending in the courts. The conviction rate in these cases is a mere 2%. Jurisprudence says an accused is innocent until proven guilty. The POCSO Act, however, clearly mandates that the burden of proof lies with the accused. Despite this, hundreds of guilty are escaping scot-free.

It is the judicial responsibility to provide medical aid and protection, immediate relief, and interim and final compensation to the victim of child sexual abuse. Under the law, a case of rape should be disposed of in two months while other cases of child sexual abuse should be disposed of within a year. Despite this, the average time taken to dispose of such cases was 509 days, as stated by Union Minister for Women and Child Development Smt. Smriti Irani.

There is hardly a woman in India who can say they have not been harassed. It is society's collective failure in providing a sense of security to the victim of a sex crime, which discourages her from approaching the processes to safeguard her - the police and the judiciary.

The conscience-shaking case of Lalitpur, where a 13-year-old girl was gang-raped by four men and raped again at the police station by SHO when she went to file the complaint also has an appalling backstory. The victim, before the incident, had gone to the police complaining of some boys harassing her on way to school, which led to her dropping out. She was presented at the court and her statement was recorded, but no action was taken. Had timely action been taken, the girl may have been saved from the crime and the trauma.

No law, court, or police can protect women and children unless their accountability is fixed. It is high time we create a transparent system of conducting trials. Unless this is done, the process of revictimization will continue in society, in police stations, and in courts.

While many cases under POCSO Act are being declared as romantic relationships, the various factors behind such instances are barely being explored. When in the lack of victim protection facilities, a trial is influenced by criminals, the child victim often turns hostile and ends up saying that the rape was instead a 'romantic relationship'. To add to the trauma, no compensation is released in such cases and the victim is branded a liar.

On the other hand, if a child is strong and steadfast, cases are either not registered, or the child is raped in the police station, or both (ref: Lalitpur case).

In such a situation, a message on CSA cases being romantic relations coming from the apex judiciary will only act towards disempowering the children. Reduction of the age of consent would make the child victim more vulnerable, as the criminals will then pressurize the girls even more and all victims will end up stating that they had a romantic relationship with the culprit, leading to the criminals walking away scot-free.

To deal with the cases where the relationship of minors is indeed consensual, it is proposed that in a situation where the age difference between the accused and the minor victim is less than three years and the offense is not that of aggravated assault, the offense shall only be registered and investigated under the relevant sections of Indian Penal Code and not under the POCSO Act. This will automatically reverse the burden of proof from the accused to the state and will protect, and safeguard the rights of both parties.

The concerns of the Hon'ble Chief Justice of India on CSA and the age of consent are very welcome. However, had a part of this concern gone toward ensuring judicial accountability, compensation disbursal, and punishing such judges who do not take action in CSA cases, it would have acted as a safety net for girls.

It is high time that we have an honest and transparent discussion in the country on case disposals, conviction rates, and compensation to victims. Fixing accountability of the judiciary will reduce the revictimization of rape and sexual abuse victims, and ensure timely justice delivery.

(The author is a Manager - Resource Mobilization and Strategic Engagements, Kailash Satyarthi Children's Foundation)

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of OneIndia and OneIndia does not assume any responsibility or liability for the same.