Two years back, Simi*, a 12-year-old girl, was sexually abused by her aunt’s husband. Simi informed her school counsellor about the incident, who in turn informed the police. The girl and her mother were living in the abuser’s house, and he was supporting them financially. When police came, Simi’s mother and aunt prevented the man’s arrest, saying Simi had lied. They also emotionally blackmailed her. When the case came to the district Child Welfare Committee (CWC), Simi herself said that she had lied. CWC sent the child back with the family, and nothing came of the case.
This is just one among the hundreds of child sexual abuse (CSA) cases in Kerala that are reported, but yield no results. After POCSO (Protection of Children from Sexual Offences) Act was passed in November 2012, the number of CSA cases registered in Kerala have rocketed. In 2010, only 596 crimes against children were registered overall, of which 208 were rape cases. In contrast, in 2016, 1920 cases were registered under POCSO Act alone.
Of all crimes against children registered in 2015 in Kerala, POCSO cases came to 66%. Reporting rates are high since POCSO Act prescribes jail term for those who don’t report incidents they know of. Cases are mostly reported by school counsellors, doctors or acquaintances.
But case disposal and conviction rates are not keeping up with the hike in reporting. POCSO Act says that cases should be disposed off within a year. But data up till December 2015 shows that only 261 out 3711 cases were disposed off in courts in Kerala, i.e., seven percent. And out of all cases disposed, convictions happened only in a quarter of the cases. Conviction rates are much lower in some districts. In Trivandrum, the accused were convicted only in two cases and acquitted in 22. In Palakkad, conviction was in only one case, and acquittal in 21 cases. Compensation was given to victims in only 10% cases overall.
When you look at Simi’s case, it’s not hard to see why conviction rates are low. In many cases, abusers are family members themselves. An analysis by the Kerala State Commission for Protection of Child Rights (KeSCPCR) showed that the accused were relatives or neighbours in 32% of the 999 cases that were registered in July-December 2015. (Data was unavailable for 30% of cases.) These abusers usually are fathers, stepfathers, brothers or cousins.
Sandhya Raju, of the NGO Human Rights Law Network, says that child sexual abuse is more common in families with domestic violence. Pic: Navya P K
In cases where the father is the abuser, the mother does not often pursue cases. “Mothers maybe in denial or lack the financial independence to go against the father. Many women also see husband as a safety mechanism, as they are likely to face abuse and allegations if living alone,” says Sandhya Raju of the NGO Human Rights Law Network (HRLN).
Even when the abuser is not a family member, families prefer not to pursue cases due to the social stigma that follows, and fear that the child’s marriage prospects will be affected in future. “The child merely says in court that she does not remember what happened, and the case gets dismissed,” says Sandhya Rani, Special Prosecutor at the Ernakulam Special Court for women and children.
POCSO Act and Nirbhaya Policy were meant to overcome such hurdles, but their provisions remain on paper. Both the state government and judiciary lack the infrastructure to ensure convictions and rehabilitate victims.
Non-functional One Stop Crisis Centres
Based on recommendations of the Usha Mehra Commission report of 2013, central government had proposed setting up of one stop centres for sexual abuse victims. Police is supposed to take all sexual abuse victims directly to these centres. Kerala did not set up new centres, but designated existing Bhoomika centres as One Stop Crisis Centres (OSCCs).
Bhoomika project was launched by the Kerala government along with the National Health Mission much earlier, in 2009, to manage cases of gender-based violence. Now 21 Bhoomika centres located in government hospitals function as OSCCs. Bhoomika centres come under the Health Department, but the OSCCs have separate management committees comprising officials of different departments.
Counsellors at OSCCs have to arrange all services needed for victims. There are panels of doctors, police officers, lawyers and clinical psychologists in each district, who should go to the centre and give services when called by Bhoomika counsellors. All services should be given in full confidentiality. OSCCs would ensure that the victim does not get traumatised further by having to travel across departments and recounting details of the abuse. Victim’s statement would be taken by a magistrate, which ensures that she doesn’t turn hostile during trial.
In reality, very few cases come to OSCCs. The OSCC in Kozhikode city received only seven POCSO cases in 2014-15, and nine in 2015-16. But around 60 cases under POSCO Act are registered in the city limits annually, on average. Sharathma P Sukumar, Kozhikode District Coordinator of Bhoomika, says that they usually get POCSO cases when a victim comes to the hospital for treatment. But these victims too do not get adequate services.
“Panelists are not paid for their work at OSCC, hence I can’t insist that they attend a case. They may just say they are busy. Also, there is only one woman Sub Inspector (SI) within city limits available to take victim’s statements. If she is unavailable, I have to find an officer from another station or the child will have to come back the next day,” says Sharathma. All four gynecologists in the hospital are in the panel, but are often busy with their own cases or surgeries. The child may wait for hours for a medical exam.
Sharathma adds that the centre has never got funds for victims’ food, travel expenses etc., which Social Justice Department (SJD) is supposed to give. Besides, no orders have been passed, delineating organisational structure and processes. “Victims do complain about doctors or judges, but there is no designated person we can approach about this,” says Sharathma. Two counsellors work in the centre till 7 pm; if a child comes after this, she will be admitted in the hospital and her case will be handled the next day.
Due to lack of functional OSCCs, victims do not get counselling which is crucial in dealing with the trauma of abuse. Confidentiality is not always maintained, because of which many prefer to drop the cases.
Latha*, who filed a case of abuse of her nine-year-old daughter three months back under the POCSO Act, says that the police has not been discreet. The child’s stepfather had exposed the child to pornography and made her touch his private parts. “Police visited my apartment four times, and tried to talk to neighbours. Once when I was unavailable, police asked my whereabouts to the staff in my apartment building, and hinted to them about the case.” Meanwhile, the accused posted Latha’s naked photos online. Latha says she has gone through so much shaming that she wants to move to a different locality. She says that she does not care about the case anymore, and will drop it if it goes on for years.
T V Anupama, Director of Social Justice Department, says that new OSCCs will be set up in all districts under the direct control of the department’s Nirbhaya Cell, as per Government of India’s (GoI) guidelines. “We have started one centre in Trivandrum, and have got in-principle approval for centres in four north Kerala districts so far,” she says.
J Sandhya, former KeSCPCR Member and in-charge of the Commission’s POCSO Cell, says that convictions usually happen only in cases where children are sent to Nirbhaya homes, where they face no pressure to retract statements. Sandhya’s term at the Commission had ended this month. CWC members too agree with Sandhya.
CWCs decide whether children should be sent to Nirbhaya homes or not. They are sent to a Nirbhaya home only in the worst situations - when the abuser is a family member or the child is in danger of further abuse or threats. Institutionalisation in a government or non-government children’s home is to be the last resort under the Juvenile Justice Act, 2015. Nirbhaya homes are supposed to prevent further abuse of the child, to arrange all aspects of case prosecution, and to rehabilitate the child by ensuring her emotional well-being and education.
Children sent back with abusers
Fr Joye James, Chairman at Trivandrum CWC, says that he does not get FIR copy in all cases. Pic: Navya P K
As per POCSO Act, police has to send the FIR copy of all cases to CWC within 24 hours of filing it. But this does not happen systematically, and CWCs are unaware of many cases. Fr Joye James, Chairman at Trivandrum CWC, says that he does not get the FIR copy in all cases. And when he does get one, there are no further updates from police. “If the abuser is a neighbour and is in remand at the time we get the FIR, the child won’t need shelter. But when the abuser is out of jail and the child faces threat, police has to inform us, but they often don’t,” he says.
Police or Childline may directly produce children before CWC if they think the child needs shelter. Then CWC makes a decision after talking to the child and her parents. But according to KeSCPCR data, in 2015, only 44% of the total cases were reported to CWC, and only in 12% cases were children produced before CWC.
There are also allegations that CWCs sometimes send children in Nirbhaya homes back to their abusive families. An activist, on condition of anonymity, narrates two examples in Trivandrum and Pathanamthitta districts, of victims who were abused by family members and became pregnant. They were sheltered in Nirbhaya homes, but were sent back with their mothers post-delivery. One of them was found admitted in a mental hospital later. The perpetrators did not get punished in both cases.
Sandhya of KeSCPCR says that such allegations did come up against CWCs, but CWCs’ response was that they had done so since parents came repeatedly and convinced them that they would care for the child. Currently, there is no system to follow-up on what happens to children who are sent back. “District Child Protection Units (DCPUs) are suppose to do follow-up as per guidelines of ICPS (Integrated Child Protection Scheme). But DCPUs were set up in the state recently, and are only starting to be active. It is a problem that children who once came under state protection slip back into abuse,” she says.
Around 600 children have stayed in the 11 Nirbhaya homes in the state so far. But the homes suffer from lack of space and facilities. Five districts don’t have Nirbhaya homes at all. Dr Mini Nair, State Coordinator (Nirbhaya), says that Expression of Interest has been invited from NGOs that have space and facilities to start homes and one home has been just sanctioned in Kollam district.
Eight of the existing 11 Nirbhaya homes are run by the centrally funded KMSS (Kerala Mahila Samakhya Society), and the remaining three by NGOs. While KMSS takes in children in more complex situations, non-government homes mostly lack facilities for this. In KMSS homes, 32 children have given birth so far, and 14 have terminated pregnancy.
Thrissur CWC Chairman P O George says that the Nirbhaya home run by the NGO Ashadeepam in Thrissur, has no facilities to care for victims who are pregnant or mentally challenged. “Mentally challenged children are sent to another NGO home here, and children who continue with pregnancy are sent to an NGO home in neighbouring Ernakulam district,” he says. The home allows only distance education due to safety concerns, and hence children who want to continue regular schooling are sent to a different NGO home.
For two weeks initially, all children are sent to Mahila Mandiram where adult women live, to complete procedures related to police case. Children are sent there since Thrissur district has no government girls’ home, says George.
The Nirbhaya home run by the NGO CAP in Ernakulam, does not have enough capacity, and hence many girls are sent to other government or non-government children’s homes. Sheela Mariyam Ummen, district CWC Member, says, “Abused children may have psychological issues. Hence children’s homes don’t want to take them in, fearing they would be violent or “contaminate” other children with stories of abuse. A complete care plan is needed for individual cases, but there is no dedicated staff to ensure this.”
Counselling facilities even within Nirbhaya homes are limited. In KMSS homes, there is only a counsellor and a part-time clinical psychologist. The clinical psychologist is paid only Rs 7000 a month, making it difficult to attract well-qualified people. In Ashadeepam’s home in Thrissur, the part-time psychologist visits once a week and is paid Rs 4000 per month. In KMSS homes, about 40% children are being treated for mental health issues caused mostly by the abuse they suffered. Of these 10% children have had severe mental illnesses like schizophrenia prior to the abuse, and which got compounded later with abuse.
Flawed investigations, overloaded special courts
In many cases, there are complaints of police being insensitive, trying to settle cases and of not writing details in FIR exactly as the child says, which violates POCSO Act.
Nisha*, a manual labourer and single mother, had filed a POCSO case against her 17-year-old daughter’s boyfriend, who was aged above 20 years. The boy had taken the girl to his friend’s house and had sex with her, and then cut off all contact with her. When the boy’s family, rich and influential, refused to get them married and instead threatened Nisha, she filed a POCSO case. Nisha says that she was ostracised by society - some said that she had filed the case for money, and other women told her that mothers were supposed to keep such incidents hushed up.
“Police advised the boy’s relatives that the case would be settled with marriage. The day after I filed a FIR, the boy’s relative asked us to come to our community’s office. We were caught unawares on seeing that they had made marriage arrangements. My daughter wanted it to end, and agreed to marry. I was also worried that the case may get media attention and my daughter would be harassed further,” Nisha says. Four years after the marriage, Nisha’s daughter has suffered much abuse by her in-laws, her education was stopped, and she has not been allowed to visit her mother.
Many police officers are unaware of the provisions of POCSO Act, and do not receive adequate training, says a member of the Special Juvenile Police Unit (SJPU) in the state, on condition of anonymity. “POCSO Act says that funds should be set aside for trainings, but currently training happens sporadically when a department gets some funds. Instead, there should be a system to regularly train all policemen down to constable level, especially trainee officers, and to ensure that no one skips these,” he says.
He says that many cases get dismissed in court when police charges the accused with sections other than POCSO. As per POCSO Act, lawyers cannot question the victim aggressively; they should first communicate their questions to the judge, who will then ask these to the child. “But when the police adds sections of rape, outraging modesty etc., the defense lawyer will ask the court to allow questioning under these sections. This means, the questioning will be like in any other court case,” he says.
He gives the example of a boy who was assaulted by his hostel warden. “There was clear medical evidence. Police charged the accused with Section 377 along with POCSO. But the assault had occurred in the dark, and the lawyer kept directly asking the child how he could have seen the accused. The child could not speak in the end, and the case was dismissed,” he says. The case had taken 2.5 years to conclude. “During this time, the accused kept threatening and trying to influence the boy’s family, and they had given up by the end,” he says.
Currently, there are no witness protection systems to ensure that children are not threatened or ostracised by influential abusers, which happens commonly.
Absence of child-friendly procedures
Special Prosecutor Sandhya Rani says that about 700 cases overall are pending in Ernakulam Special Court. Pic: Navya P K
POCSO Act mandates child-friendly Special Courts, for quick disposal of cases. But currently there are only three districts in Kerala that have Special Courts to try crimes against children and women; one of these was inaugurated just last month. Even these courts suffer from overload. Prosecutor Sandhya Rani, says that overall 700 cases - POCSO and others - are pending in Ernakulam Special Court.
In the other 11 districts, Additional Sessions Court has been designated as Special Courts. “These courts have major cases pending for years. In Thrissur, some 200 POCSO cases are registered annually, but only 2-3 POCSO cases are tried or concluded monthly at the sessions court,” says George. As cases remain pending for long, there is more pressure on the child to retract statements, the child may forget details of the abuse and her trauma may be prolonged.
J Sandhya, of KeSCPCR, says that Additional Sessions Courts should be mandated to prioritise POCSO cases, or to set aside two days a week only for these cases. “I have given this in writing to the High Court. The Commission had initially told the government to identify courts with low case pendency, but government merely notified Additional Sessions Courts. The Public Prosecutor who handles all cases there, handles POCSO cases too,” she says. Sandhya opines that those with some knowledge of child psychology and child rights should be appointed as prosecutors.
Additional Sessions Courts hold in-camera hearings for the victim, while Special Courts have a screen behind which the child can speak. Sandhya says that Special Courts in Kerala are not child-friendly. “For example, in the Trivandrum Special Court, the accused and the child sit together in a common area before the trial starts. Ideally there should be a separate room for the child with a play area, drinking water etc. So far, only one court in Delhi has done this,” she says.
Sadly, despite the strong provisions of POCSO Act, nothing seems to have changed for the victims.
*Names have been changed to protect identity
