The familarity problem: What explains low convictions in cases of sexual offences against children

A study of 667 Delhi special court judgements under the Protection of Children from Sexual Offences Act throws up useful insights.

A 17 year old girl was allegedly raped by her landlord. Her statement was recorded before a magistrate to ensure it was water-tight. But in court she said she was raped in a dark room and that the landlord was in the next room but didn’t rape her.

A girl went missing. She then surrendered along with her boyfriend, the accused. The girl said she was not a minor, and went with him of her own accord.

A girl complained of a neighbour assaulting her. She was rescued by her mother. In court she recanted and said she had filed the complaint because she was angry about a quarrel the neighbour had with her mother.

Each of these cases took place in Delhi, in each of them the victim turned hostile in court. These are some snapshots from a study of 667 Delhi special court judgements under the Protection of Children from Sexual Offences Act conducted by the Centre for Child and the Law at the National Law School of India University in Bangalore.

Turning hostile

The victims turned hostile in 450 cases: 67.5% of the total. In 149 cases they said no offence had taken place, in 71 cases they said they were not minor, in 59 cases they said the accused was not the one who committed the offence. In the remaining 177 cases they turned hostile for other reasons, claiming instead they had been coerced by the police or activists in lodging cases.

The study, compiled through a combination of interviews with various actors in the justice system and judgement analyses from January 2013 to September 2015, was submitted earlier this year to the Delhi government.

The high proportion of the victims turning hostile in the report is linked to one factor: the perpetrator is usually known, in 80% of the cases, to be precise. The highest proportion of hostile behaviour was seen in cases of victim and accused being married (99%), followed by those in a relationship (96.07%).

“This can be the reason for a staggering number of victims turning hostile, apart from compromise and using emotional reasons (if the accused is the father, use reasons like he is the breadwinner of the family) to convince the victim to turn hostile,” said Anjali Shivanand and Swagata Raha of Centre for Child and the Law, in an emailed response.

Similar hostile behaviour was seen when the accused was the step-father (76.47%), father (76.47%) or some other relative (73.58%).

Likewise, the inverse holds true as well. The highest proportion of cases where the victim testified against the accused was when he was a stranger (41.73%), followed by acquaintance (35.7%). “Where the alleged perpetrator is a stranger, the possibility of becoming hostile decreases as compared to when it is a family member,” said the report.

Low conviction rates

The Protection of Children from Sexual Offences Act or POCSO was enacted in 2012 following a spike in crimes against children, but this detailed study suggests that the conviction rate is a measly 16.8%, compared to a general conviction rate (across crimes) of 24.1%.

One factor is that victims and accused are often in a relationship, and the parents might have filed the complaint.”I feel very strongly about the law criminalising this. When it is absolutely consensual, then whom are we convicting? If a girl gets married below 18 it isn’t an offence. They have a right to their body and then we are punishing them? How should we rationalise it?” said one respondent to the researchers.

One defence lawyer described the strategy of encouraging victims to turn hostile in such cases by blaming the police for filing the FIR.

That apart, there might be cases which are “settled” and end in marriage, which the report described as a “a dangerous trend… in order to evade punishment”.

“The unintended consequences of all forms of sexual contact with a child under the POCSO Act appears to be a spike in the number of child marriages,” the report said.

Raha also attributed the low conviction rate to a “justice gap” when one “contrasts the rate of reporting to the rate of conviction”.

“This is indicative of failure on the part of police, prosecution, and the judicial system at some level,” she said.

Are the courts child-friendly?

The report looked in some detail at the child friendliness of the courts themselves, and how these can be improved to provide a better experience for children.

In one case for instance, the court did not have an interpreter to help the child give evidence. The only person who spoke the same language as the child, was the accused, leading to him acting as translator by standing behind the child and translating. The report noted the “damaging psychological effect” this could have on child victims.

Courts also appeared to not take into account children’s convenience when arranging time for their appearance, in four of six courtrooms there was no separate entrance for the child to avoid facing the accused, and likewise for the facility of a waiting room.

“It would be good if there was a separate entry,” one support person told the researchers. “Children can get shocked as they have never been to a crowded place.”

The report has recommended a slew of measures to the Delhi government including trainings for police and prosecutors, creation of a trained cadre under the Juvenile Justice Act, speedy disbursement of compensation and regular inspection of child care homes. It has also included recommendations for the Delhi High Court on designating more such special courts to deal with high pendency of cases, construction of waiting rooms for victims and their families and training of judges and magistrates on dealing with children.

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