In response to the simmering anger in the country over child sexual abuse cases, the government had introduced a bill to amend the Protection of Children from Sexual Offences (POCSO) Act, which was passed in the Rajya Sabha on Wednesday evening. Among the highlights are the changes proposed to sections 4, 5 and 6 of the Act. Under the amendements, aggravated sexual assault as well as penetrative sexual assault on a child below 16 years are punishable with a minimum of 20 years of rigorous imprisonment as opposed to 10 years previously. This can extend to life imprisonment or death.
Child rights crusaders and those working with survivors and families of child sexual abuse have been insisting that increasing punishment and allowing capital punishment is concerning, and will work against the survivors. In a letter to Rajya Sabha MPs prior to the passage of the Bill, Pro-child Coalition, a collective of citizens and organisations working towards protection of children, argued that the death penalty fails to consider the nature of child sexual abuse and actually endangers children.
Some of the reasons listed by them are:
1. According to National Crime Records Data from 2016, almost 95% of all cases of penetrative sexual assault read with rape are committed by people known to the victim. Knowing that reporting the crime may put this known person who could be a relative, friend or a neighbour too, on the death row is significant pressure and burden for the child and their family.
“This will also severely impact the reporting of child sexual abuse by children with disabilities if they are being sexually abused by their caregivers,” the letter says.
2. The amendments criminalise sexual relations between minors who are in consensual relationships, and risk these teens being given extreme punishments. “Studies conducted by the Centre for Child and the Law, National Law School of India University in the States of Delhi, Assam, Karnataka, Andhra Pradesh, and Maharashtra on the functioning of the Special Courts under the POCSO Act, revealed that cases in which the prosecutrix admitted to a relationship with the accused amounted to 21.8% in Karnataka (3 districts), 23% in Delhi, 15.6% in Assam, 20.5 per cent in Maharashtra, and 21.2% in Andhra Pradesh.”
3. Arguing that the punishments under the Act are adequate, Pro-child Coalition points out that when punishments are enhanced, studies have shown to Special Courts are more likely to award the minimum sentence over the maximum punishment, which is only given in exceptional cases.
“Several judges were of the view that punishment under the POCSO Act was very stringent and did not provide them with any discretion to award a sentence below the minimum. The lack of judicial discretion in sentencing, coupled with enhanced mandatory minimum sentences provided for in the Bill, may have the reverse effect by potentially increasing the chances of judges acquitting offenders rather than imposing what they believe are disproportionate sentences,” the letter says.
4. Further, death penalty will inevitably dilute child-friendly measures, experts say. Due the severe punishment, the standards for proof may end up resulting in putting a child through traumatic by lawyers questioning during trial which may leave him/her humiliated, confused and threatened.
5. The focus on harsher punishment shifts the narrative from poor implementation of the POCSO Act itself. “The convictions for child rape have steadily declined in the last 10 years despite the enactment of the POCSO Act [...]. From a conviction rate of 32.6% in 2006 for child rape, it is down to 28.2% in 2016, while the pendency has climbed from 81.3% in 2006 to 89.6% in 2016,” the Coalition points out.
There are several other issues in the system such as absence of Special Courts and Special Public Prosecutors, lapses in investigation and lack of measures of victim protection and support. Where the latter is concerned, “a survey of 100 survivors of rape/sexual assault survivors by the Delhi Commission for Protection of Child Rights revealed that one in three children who faced sexual abuse, dropped out of school. Further, only 15% of the survivors received compensation.” Such trends are found in other studies as well.
6. From a human rights perspective, the introduction of death penalty undermines human dignity, which is the bedrock of the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) to which India became a signatory in 1979.
Quoting the Death Penalty India Report, 2016, based on interviews with 373 of India’s death row prisoners, Pro-child Coalition says that 74.1% of India’s prisoners on death row were from economically vulnerable backgrounds, and 84% of the prisoners who either had their mercy petition pending or rejected were from marginalised communities. Further, 42% of the death row prisoners at the mercy petition stage was 42%. This concludes that the burden of death penalty in India mostly falls on economically marginalised groups in India, who are also extremely vulnerable to police excesses.
This also comes at a time when more than 142 countries have abolished death penalty.
Pro-child Coalition reiterated that introducing death penalty for sexual crimes against children will only deter reporting, considering most perpetrators are known to victims. Further, the perception that capital punishment acts as a deterrent has not been backed by empirical evidence.
“System strengthening is the need of the hour instead of amplifying punishments. Establishment of exclusive Special Courts and investment in infrastructure, people, and training along with the implementation of a robust Victim and Witness Protection Program will provide the much-needed framework for ensuring support and protection to child victims of sexual offences, enabling both higher conviction rates and greater levels of healing and rehabilitation of child victims – a win-win strategy. What is also required is certainty of conviction that will send a clear message to the offenders that they cannot get away,” the letter urges.
The letter has been endorsed by 188 individuals and organisations includind HAQ Centre for Child Rights, TULIR-Centre for the Prevention and Healing of Child Sexual Abuse, child rights activists, legal experts, social workers, disability groups, human rights groups as well as women's rights groups. The Coalition has also sent the letter to Lok Sabha MPs now.
Find the full text of the letter here.