With Death Penalty, it Will be Harder to Punish Child Rapists

There is no doubt that sexual violence perpetrated on children is profoundly disturbing. In light of the cases in Unnao and Kathua, our public moral outrage has reached its crescendo and the demand for death has never felt more morally just. While our disgust is rightly placed, our response must take into account the complexity and magnitude of what we face.

In 2012, when a similar ordinance and subsequent legislation introduced the death penalty for certain sexual offences in light of the 16 December 2012 gangrape in Delhi, it was imagined that the fear of punishment would deter potential offenders and yet for the past six years, little has changed in terms of the country becoming safer for women.

As we stand on the cusp of another definitive moment in the discourse around sexual violence, it is imperative that we prevent ourselves from being blinded by emotional political rhetoric and satisfied with knee-jerk responses that seek to appease public sentiment rather than address the chronic realities of sexual abuse and violence.

In the prevalent discourse around child sexual abuse, we seem to have bought into the false belief that offenders are mostly strangers. While this may be true in the cases causing the current outrage, we have broad-brushed the entire issue of child sexual abuse without recognising its more common realities.

According to NCRB data in 2016, around 94% cases registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012, for sexual assault were instances where the offender was known to the victim and was either a neighbour, employer or a relative.

A disconcerting fallout of introducing the death penalty in this context is going to be the additional trauma suffered by the child in having to choose between their need to have the abuse stopped and the reality of potentially sending their relatives to the gallows.

And while at no point does one advocate that the offender not be punished, it is imperative upon us to evolve a more informed and nuanced understanding of that punishment.

For the multitude of professionals trying to find a response to these incidents on a daily basis, the frustration of an overburdened, under-staffed and often insensitive system are what cause the greatest impediments in ensuring justice for child survivors.

The introduction of the POCSO Act in 2012 and its child friendly procedures was a beacon of hope for those fighting for the rights of child survivors. Yet six years on, there seems to be little that has changed on the ground. NCRB data for 2016 shows only a 28% conviction rate in cases of sexual assault under POCSO, which essentially means that of every 100 cases of aggravated sexual assault on a child, only 28 survivors find this idea of justice.

Studies conducted by the Centre for Child and the Law (National Law School of India University) in five States found that the majority of child survivors turned hostile during trial when the abuser was someone they knew, hence bringing down conviction rates.

For instance, in Delhi, the victim turned hostile when the accused was a step-father (76.47%), father (76.34%), or related to the accused (73.58%). In Maharashtra, victims turned hostile when the accused was an acquaintance (77%), father (73%), relative (78%), teacher (83%), and neighbour (70%).

The study also found that the spirit of the Act was not followed through in its implementation. While the POCSO Act was based on the realisation that children interact with the criminal justice system differently and that the procedures have to be modified accordingly, in most states, courts did not follow through with the child-friendly procedures as mandated by the Act, thereby traumatising the children even more and pushing them further away from the judicial process.

One of the greatest obstacles in dealing with child sexual abuse has been the lack of reporting of the crime. In the experience of those working on the issue, probabilities of disclosure of abuse by the survivor depends significantly upon their relation with the abuser.

This has translated into a large percentage of cases not being reported. With the introduction of the death penalty, compounded with the stigma around sexual abuse and in most cases, by a family member, there is good basis for a serious apprehension of more cases not being reported.

When the death sentence could be given to a family member or a known offender, there is a real danger of social exclusion of the survivor and her family by the society around them and would result in more cases of abuse going under-reported.

What is more disturbing, however, is the lack of any review of this law and attempts to improve its implementation by the Government. On 19th December 2017, MP Rahul Paswan raised a question to the Ministry of Home Affairs in the Lok Sabha regarding any study that may have been conducted into the implementation of the POCSO Act and about any special budgetary allocation towards it.

The MHA replied that, “after the Act came into force on 14th November, 2012, the Union Government had not conducted any study on its efficacy and that as per the available information, there is no separate budget allocated for the implementation of POCSO Act.”

These harrowing incidents in Unnao had already happened in June 2017 and Kathua in January, 2018. Being aware of the various state amendments introducing the death penalty and of these incidents, the Central government made the conscious choice to take the stand that it did not want to impose the death penalty and that the punishment prescribed by POCSO was sufficient.

The response to sexual violence against children needs to be holistic and nuanced in its understanding. It is staggering to think that such an important move was made by the government without consultations with any child rights organisations who work with and understand the intricacies of not only the nature of abuse but also the cogs in the present system.

Introduction of harsher punishment is at best an easy way out for the State to appease public sentiment, and shy away from dealing with the myriad complexities of the problem. It is for us to refocus the debate on what truly matters: creating an environment in which our children are safe — something we can achieve by strengthening existing institutions instead of escalating rhetoric.