Madras HC Ruling on Child Abuse - Need for Sexuality Education

Why in news?

In a case on child rape, the Madras High Court held up rigorous imprisonment as punishment for a child rapist.
The Court also made some key observations, which are worth looking at in terms of approach to handling such cases by the state machinery.

What is the case on?

The high court was hearing a case in which a man had sexually assaulted a five-year-old girl in Nagapattinam in 2011.
According to the case, the man Ganapathy, had raped the girl when she was playing with her friends.
Based on a complaint given by the girl’s mother, the Nagapattinam police had registered an FIR against Ganapathy for rape.
Significantly, Justice S Vaidyanathan, who was hearing the case, junked several arguments made by the defence on technical lines.

What are the observations made by the Judge?

The Judge overruled several arguments made by the counsel for the accused in relation to -
1. initial delay in filing the complaint
2. absence of injuries on the child
3. the trustworthiness of the victim’s statement

Delay - The defence side argued that the accused, the mother, delayed the filing of a complaint.
To this, the Judge said that the rape of a girl of a tender age will have adverse effects, which her family needs time to recover from.
He thus attributed the delay to normal human conduct.
It was also said that in a village setting, neither the girl nor her parents would be tempted to rush to the police station immediately.
Injuries - On the absence of external injuries, the judge said that it is not possible to find bloodstains on the girl’s body four days after the rape.
Trustworthiness - The Judge stated that courts have to believe what the child-survivor says in such cases.
The courts should not be influenced by misconceptions that children are likely to lie in cases of sexual abuse.
Children should also not be seen as being tutored by parents to make false statements in court.
These misconceptions should not affect the manner in which courts respond to cases of child sexual abuse.

What are the guidelines for defence lawyers’ interrogation?

The attitude of defence lawyers reflects a structural problem in the legal system.
It is more often biased and derogatory towards victims of child sexual abuse.
Defence questions are hostile, often sexually explicit, and structured to imply that lack of resistance means consent.
The guidelines in Sakshi v. Union of India (2004) aim at discouraging this controversial practice.
It requires questions in cross-examination to be routed to the prosecutrix (a female victim of a crime on whose behalf the state is prosecuting a suspect) through the Presiding Officer.
The objective is to prevent harassment and intimidation by the defence counsel.
However, this is not an established practice and happens only when cross-examination gets unacceptably offensive and objectionable.

How is child’s vulnerability a limitation here?

The child witnesses often do not understand the confusing questions of defence counsel.
This makes them vulnerable and they end up giving vague answers.
Also, children delay disclosure of the abuse (one third of them wait at least a year).
So, chances are that medical evidence may go undetected or get lost.
This further hampers their chances of securing justice.
Delayed disclosure also makes it difficult for child witnesses to recall specific details of the abuse.
This, in turn, makes it easier for the defence to disprove allegations.
All these highlight the need to have a policy in place to address the concerns of delayed reporting of abuse and brutal cross-examination of child witnesses.

How would sexuality education help?

Not knowing how to narrate what exactly happened to them, children typically provide vague and sketchy responses in trial proceedings.
Children should thus be educated to know and use the names of body parts instead of using euphemisms.
Teaching the correct names of private parts will also reduce the shame and stigma associated with talking about them.
Children should be educated about the nature of sexual abuse as well as the procedures to invoke formal justice mechanisms.
They should be equipped with the right vocabulary to talk about sexual abuse.
It is thus imperative to introduce sexuality education in the school curriculum.
This should be underpinned by concepts of criminology and criminal justice.

Besides these, there is also the compelling need to increase the awareness of the legal system about child-sensitive communication.

Source: The Hindu, News Minute