POCSO convictions: Time to plug gaps
According to data compiled by the National Crime Records Bureau, 39,827 cases were reported under the Protection of Children from Sexual Offences Act in 2018, an 18 per cent jump over the previous year. The data also reveal that despite an increase in child rape, the conviction rate was as low as 28 per cent at the end of 2016. These grim statistics raise one central question: what measures are required to improve conviction rate in POCSO cases?
We present some of our observations from an ongoing national study led by the Center for Criminology & Public Policy in association with the Bureau of Police Research and Development to determine the conditions that lead to convictions in cases of child rape.
Obtaining important pieces of information and gaining full disclosure of what occurred (from victim) are the keys to a successful investigation. However, the traditional approach to interviewing with ‘why, who, what, when, where and how’ may become an obstacle for child victims who may be under trauma. This is especially true because many police officers may not have the required ‘sensitivity training’ to handle an emotionally challenged victim. As a result, the tone of a victim interview may turn into an interrogation, causing the child to withdraw. The reticence on the part of the child may also serve to create suspicion in the mind of officers that the report may be false. To prevent this, we recommend that the police start their investigation process by empathetically listening, acknowledging the victim’s ordeal, communicating appropriately, and posing simple questions. The proposed approach will help officers build rapport and facilitate child testimony, thus increasing the probability of conviction. While officers can learn sensitive interviewing through appropriate training, preparing the standard operating procedures for investigation of POCSO cases and integrating it within police training manuals would ensure that these methods are used by all investigation officers.
At present, the training that is available to officers investigating child sexual abuse is inadequate at best and counterproductive at worst. It is critical that police officers be given specialized training for handling CSA cases. This should cover a wide range of topics, including learning about children’s recall and cognitive abilities, myths about CSA, rights and needs of children, distinguishing between facts and fantasy, dynamics of CSA, characteristics of sex offenders and their behaviour, demonstrating dignity and compassion, discussion of private parts, secondary victimization of children and sexual abuse disclosure process. We also recommend that such specialist training be imparted during the basic training of all police officers. Periodic Refresher Training Programs would also benefit officers by keeping them updated about new CSA developments, thereby increasing the awareness of officers to use POCSO and IPC appropriately. The government needs to invest in police training and child protection while police leadership ought to give due importance to child abuse investigations. State child right commissions could partner with criminal justice think tanks and develop protocols for ensuring consistency in police response to CSA. This could be done by using the underutilized Nirbhaya fund.
Several studies on neurobiology and trauma reveal that when a person recalls a traumatic event, the prefrontal cortex, which is the key to decision-making and memory, can become temporarily impaired. Some recent studies have also indicated that it’s normal for child victims to offer a muted response when asked about the abuse. Such responses often confound judges, making it appear as if victims are lying even when they’re not. It is thus essential that judges receive trauma-informed training on gender-based violence.
It has also been noted that POCSO cases are not properly presented or argued with vigour by prosecution lawyers, thereby resulting in poor conviction rates. Addressing this problem will require prosecutors to be given advanced training in law, child psychology, mellowing witnesses in tune with the ‘prosecution’ case, versatile cross-examining to derive affirmative answers from child victims, speaking about relevant facts and circumstances, giving weightage to a child’s testimony and corroborative evidence in absence of medical report and other issues that may arise in court. Besides, a culture of accountability should be created by mandating government lawyers to submit reasons of acquittal in each POCSO case they argue.
A report by the National Law School, Bangalore, which analysed 667 POCSO judgments between 2013 and 2015, stated that victims turned hostile in 67.5 per cent cases and testified against the accused in only 26.7 per cent cases. Attributing this to the long-drawn proceedings, experts say that the accused gets ample time to pressurize the victims or their families to backtrack. They also noted that it is difficult to achieve conviction in cases where the accused is a family member and that victims from economically disadvantaged sections are more vulnerable to coercion. Tackling this problem would require a three-pronged approach. While sheltering the victims in children’s homes is not feasible in intra-familial cases, intra-agency coordination and planning would ensure that the time frame of recording a child’s evidence is strictly followed and the same is completed within 30 days, thereby minimizing delays and preventing hostility of witnesses; in cases where the accused is not a family member (as it was in the Unnao rape case), the victim must be rendered protection against intimidation and retribution for a longer duration of time; judges must use their authority to put a check on unreasonable questions during cross-examination of child witnesses and exercise their judicial discretion in allowing the questions to be asked in writing or oral form.
Additionally, forensic laboratories with latest technology, specialist doctors for medico-legal examination, proper collection, preservation and analysis of evidence, victim support services and vulnerable victim deposition room, among other factors, could play an important role in securing convictions.