Child Victims’ Interactions with Criminal Justice: An Observational Study in West Bengal

Introduction

Crime occurrence has a serious impact on its victims; the toll is even greater when it concerns children. They have to undergo severe physical, psychological and emotional trauma in the aftermath of a crime. Studies suggest that trauma has a life-long impact on children, severely impairing their physical and mental well-being. Additionally, when children interact with the criminal justice system, a fear of retraumatization in the face of court responses toward the victims surfaces. The ‘adult’ criminal justice system, as originally conceived, had little respect for the rights and dignity of victims. Victims were considered merely as ‘witnesses’ and were assigned the limited role of testifying before the courts, which often repudiated their experiences and also humiliated and debased them. Their rights to communication, information, participation, support and assistance were negated, affecting their rights to secure fair justice. The same applied to children who came in close contact with the system. The ignominy and shame were reflected in the responses of the prosecutors, defence counsels and judges toward children when they appeared as witnesses.

With international efforts to put victims as salient to the criminal justice discourse, things have changed. The victim is now positioned as an important ‘stakeholder’ in justice delivery process, and victim rights and dignity have come to the fore. The same is true for child victims as well. Recognizing the ineptness of the adult processes in their application towards justice to child victims, States have modified the complexities and attempted to establish a parallel system of justice dispensation that is more ‘child-friendly’, so to speak. India, on its part, also responded, shelving the age-old colonial courtrooms and black gowns for decorated interiors, separate child rooms, video conferencing facilities and the like. The idea was to create a new environment where children would be at ease, depose freely without intimidation, not be in awe of the court officers, and most importantly, not undergo re-traumatization. Special courts to that effect were established, pursuant to the Protection of Children from Sexual Offences Act (POCSO), 2012, ¹ though many states took years to conform. Almost a decade later, it is incumbent to analyze the functioning of courts vis-à-vis child victims, which is the object of the present article. Based on an observational study of two sets of courts in West Bengal, the authors have tried to understand the court structures, processes employed and assistance towards child victims. The authors concur that there’s a world of difference between the ‘special’ courts and ‘designated’ courts in handling child victims, as well as the facilities available therein. Even so far as special courts are concerned, they require gradation at various levels.

Children as Victims

Over the years, an increasingly greater number of children have made contact with the criminal justice system. Either by direct or indirect victimization for offences such as murder, sexual assault, kidnapping, and trafficking, children have appeared in courts as victims and/or witnesses, testifying before the judges while facing a volley of questions from the counsels. According to the latest available data, a total of 128,531 incidences of crime were reported against children in 2020, as compared to 141,764 in 2018 and 148,090 in 2019. ² These offences include murder, rape, abetment of suicide, hurt, kidnapping, human trafficking and the like. Nearly 40% of the cases involve sexual abuse of children. ³

Several studies have indicated the negative and long-term effects of violence on children. ‘Child victims suffer not only physical and emotional traumas from their victimization. When their victimization is reported, children are forced to enter the stressful “adult” world of the criminal justice system’. ⁵ Haugaard ⁶ notes that a cascade of events follows when a child reports abuse or crime. The child is contacted by the police authorities, interviewed by them and sent for medical examination. He is required to narrate the incident multiple times to different authorities before he finally appears in court. The same story is repeated in court, in addition to a fierce cross-examination, bringing back memories of the abuse. The reactions of parents, peers, teachers, community and media, of course, towards the abuse create further disruptions for the child. Each component of the cascade has short-term and long-term, positive or negative, influences on the child’s mental and physical well-being. ⁷ For children, participation in the criminal justice system as victims can be confusing, distressing and even re-traumatizing. ⁸ Given the age and the consequent vulnerability, in terms of intellectual ability, children tend to find themselves unsuited in courtrooms. The challenges associated with facing the accused and answering defence questions while standing amidst unknown people and environs are documented.

Goodman et al., ¹⁰ in their study of 218 child victims, noted that ‘testifiers’ evinced greater behavioural disturbance than non-testifiers, especially if the former took the stand multiple times, were deprived of maternal support and lacked corroboration of their claims. ¹¹ Another study, for long-term consequences of 176 children, reported that children who testified had severe mental health outcomes and higher levels of trauma-related problems. Incidentally, those who did not testify also indicated worse outcomes if the accused received light sentences. ¹² Thus, while it is important that the participation of children are encouraged to ensure the basic operability of the criminal justice system in deciding the culpability of the accused, the focus must be on reducing the associated traumas and making the courtroom experience safe and secure.

It is worth mentioning here that victims of sexual abuse are worse placed in this regard. Because of their social, psychological, economic and intellectual position, children are prone to unwanted sexual acts. Statistics reveal that the prevalence rates of child sexual abuse linger around 8% to 31% for females and 3% to 7% for males. Around 53% of Indian children experience different forms of such abuse on a regular basis. ¹³ The experience of these children before courts is notably poor, and the impact even greater. ¹⁴ Bala writes, ¹⁵

‘There are a number of examples of discrimination against children who have been the alleged victims of sexual abuse and who come before the courts to testify against their alleged abusers.… Victims of child sexual abuse were particularly prone to have their evidence discounted. Evidence of victims in all sexual offence cases was considered suspect because of the nature of the allegations. Evidence of children and adolescents was further regarded as inherently unreliable because of their age’.

Faced with suspicion and disbelief with regard to their narrations, sexual abuse victims rarely report the crime to authorities, and fewer make it to courtrooms to depose. Fortunately, however, growing public awareness and sensitivity towards the plight of these victims have led countries to move for legal reforms ensuring equitable treatment and recognition of their rights.

The Legal Framework—India

In India, the concern for child victims and their consequent protection perhaps dawned in the 90s. It was by way of judicial pronouncements that the first steps were taken, with more to follow in the subsequent years.

Prior to the 90s, it may be asserted that the very idea that children need to be treated differently from adults never prevailed, except for where children came in as ‘delinquents’. The criminal laws, colonial in their origins, prescribed specific offences for children while the procedure for investigation and trial of offenders, in cases where the victims were children, remained consistent. Victims, in general, and children, in particular, never figured as a distinct vulnerable group entailing a different approach altogether.

One of the first cases to draw the attention of the court to the plight of child victims was Sudesh Jhaku v. KCJ and others. ¹⁶ ‘[I]t is time we in India give the subject a fresh look and evolve some principles while protecting the child’, so remarked the Delhi High Court, aghast at the manner in which the Magistrate had recorded the statement of the child, a victim of sexual abuse in the hands of her father. The Court emphasized that the distress and ordeal of the child should not be aggravated; rather, efforts must be in place to make the child feel safe and relaxed in the witness box. It issued a set of guidelines calling for defence counsels to avoid harassment to the victims, handling the proceedings with sensitivity and care, providing breaks during questioning, using screens where necessary to shield the child from the accused and in-camera proceedings. Close on the heels of the decision, the Supreme Court in State of Punjab v. Gurmit Singh ¹⁷ expressed similar concern towards the treatment of child victims in courts. In the case, a girl aged 16 years who was abducted and gang-raped, was disbelieved by the lower court given her ignorance in identifying the make of the car in which she was abducted, the delay in filing first information report, the absence of independent corroboration of her testimony and the medical report that stated that she might have had physical contacts earlier. The court went overboard to label the child as a girl of ‘loose character’ who made a false accusation of rape to appear virtuous before her family when she was giving company to the accused. The Supreme Court tore down the findings of the Trial Court asserting, ‘The findings recorded … rebel against realism and lose their sanctity and credibility. They demonstrate lack of sensitivity on the part of the court by casting unjustified stigmas on a girl below 16 years of age, overlooking human psychology and behavioural probability’. ¹⁸ It remarked that the observations of the court ‘lack sobriety expected of a judge’. In concluding remarks, the apex court opined that the court should not be a silent spectator when the victim is cross-examined. It should interfere as and when the necessity arises, that is when cross-examination becomes a means of harassment or causing humiliation to the victim of crime. Moreover, trials of rape cases should be held ‘in-camera’. It would enable the victim to answer the questions comfortably and at ease. Lastly, as far as possible, cases of sexual assault should be tried by lady judges, who could feel the grief and agony of the victim and deliver judgments from the correct perspective without undue harshness and insensitivity. ¹⁹ Sakshi v. Union of India ²⁰ witnessed the court reiterating its firm stand against the trauma and pressure created on children during the process of trial. It echoed a similar stance regarding screening offenders, offering breaks during questioning and cross-examination through the Presiding officer to avoid embarrassment and pressure on the victims. ²¹

Following these decisions, attempts were made to include child-friendly provisions in the Code of Criminal Procedure (CrPC), 1973. Section 160 provides that no male person under the age of 15 years or a woman shall be required to attend the police station for the purposes of the investigation; sec 173(1A) lays down that the investigation of the rape of a child should be completed within a short span of three months from the date of information; section 309 explains that proceedings for rape should proceed on a day to day basis and the trial may be completed within two months; in the recording of statements, whereas the criminal law essentially prescribes the taking of evidence in the presence of the accused, the proviso to section 273 provides that where the woman is below 18 years of age and is alleged to have been subjected to sexual violence, the court must ensure that such woman is not confronted by the accused, and the issue of privacy of victims has been addressed through in-camera proceedings and restriction on publication of proceedings in section 327 (2) and (3) CrPC, 1973.

Additionally, the Indian Parliament took a commendable step in 2012 by passing the POCSO Act in order to effectively address sexual abuse and sexual exploitation of children. Under the law, all forms of child sexual abuse are now specific criminal offences for the first time in India. Earlier, child sexual abuse was prosecuted under a patchwork of different laws often designed for different purposes.

Offences under the Act may be reported by anyone, including the child, who is apprehensive that an offence under this Act may be committed or has knowledge that such an offence has been committed. ²² It may be noted that such reporting is mandatory and applies to everyone, including parents, doctors and school personnel, the purpose being to identify children suspected to be victims of sexual abuse and to prevent them from coming to further harm. The Act casts the special police unit in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are responsible for making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment and placing the child in a shelter home, should the need arise. The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report so that the CWC may then proceed where required to make arrangements for the safety and security of the child.

The statements of the child are to be recorded at the residence of the child as far as practicable by a woman police officer. The police has to ensure the comfort, safety and confidentiality of the child in the process. ²³ Where the Magistrate records such statement, the recording must be in the manner as spoken or expressed by the child. The assistance of translators, interpreters and special educators, as well as the presence of parents or other trusted persons, must be ensured. The use of audio-video electronic means must be encouraged in the process. ²⁴ The medical examination of the child has to be conducted with utmost care and sensitivity in the presence of the parent or any other person in whom the child reposes trust or confidence. ²⁵

For the purposes of speedy trial, the state governments are to designate courts as Special Courts, which will conduct the trial in camera and without revealing the identity of the child in a child-friendly manner. ²⁶ The child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator or other professional while giving evidence. Furthermore, to prevent harassment, the child should not be called repeatedly to testify in court and may testify through video links rather than in the courtroom. The child is also to be provided adequate breaks during the trial to cope with the stress. No questions in an aggressive manner or to offend the dignity or character of the child are to be permitted. The Special Court must ensure that the child is in no way exposed to the accused at the time of recording evidence, and necessary arrangements in this regard need to be made. ²⁷ Above all, the Act stipulates that in a case of child sexual abuse, the evidence of the child must be recorded within 30 days of taking cognizance, while the trial must be disposed of within one year from the date the offence is reported. ²⁸ It also provides for the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused so that the money can be used for the child’s medical treatment and rehabilitation.

Certain other distinctive features of the Act include:

Presumption of the culpable mental state of the accused. ²⁹

Implementation of the Statute

Nearly a decade has passed since the enactment came into force. Various strides have been taken by Centre and States to ‘expedite the trial and disposal of cases’ involving children by setting up special courts, namely Fast Track Special Courts (FTSCs) and appointing special judges and special public prosecutors (SPP). The idea is that there is a need to create ‘deterrence’ against such crimes, and that is only possible if the trial is completed expeditiously within a specific time frame. ³⁴ These courts are essentially child-friendly courts, ³⁵ incorporating special measures to ensure the privacy, confidentiality and comfort of the child victims who appear before them. Special rooms for sitting and deposing through audio-visual means are created for the victims, ensuring that they do not face the offenders at any point of time. The functionaries wear casual/civil dress to avoid invoking fear and awe amongst children who might visit the complexes. Children are accompanied by social workers/NGOs to assist them in the process of deposition, in line with the POCSO Act, 2012 directives.

In 2019, though the Government assured Parliament that it would establish at least 1023 FTSCs to speed up the trials, only 366 FTSCs have been established by 21 States/UTs by 2020. ³⁶ Presently, 597 FTSCs are functional, of which merely 321 are exclusively POCSO Act courts. ³⁷ A parallel glance at the data of pending cases vis-à-vis cases for trial indicates a worrying trend. It also raises questions on the ability of the courts to do justice to victims, especially since the burden of ever-increasing cases may hit at the core of victim sensitivity and care. The conviction rates also do not present a convincing picture and point towards the non-participation or hostility of witnesses in these trials.

OPEN IN VIEWER

Table 1.

Crime Against Children Under POCSO Act (2018–2020).

Year	Cases Reported	Cases Charge Sheeted	Cases for Trial	Cases Convicted	Cases Acquitted	Cases Pending	Pendency %
2018	39,827	35,568	119,710	3884	7069	108,129	90.3
2019	47,335	42,681	149,872	5667	9698	133,068	88.8
2020	47,221	44,709	179,893	3686	5133	170,271	94.7

Source: Crime in India, 2020, 2019 and 2018; National Crime Records Bureau.

The Present Study

The present study was conducted in three districts of West Bengal—Hooghly, Kolkata and West Midnapore. ³⁸ The methodology employed for the purpose was observation. The idea was to observe the stakeholders and the processes employed in their natural settings and record the pertinent occurrences. Additionally, informal interactions with the advocates, the SPPs and defence counsels, were also conducted to validate the observations of the researcher. Two sets of courts were selected: the ‘special courts’ set up for the trial of POCSO Act cases, while the other set of courts were the ‘designated’ courts. The latter ones are designated by the Government to try POCSO Act matters, in addition to regular matters on a day-to-day basis. These courts are functioning in the absence of special courts.

The researcher obtained the necessary consent from the presiding judges in the ‘special’ courts to sit and observe the proceedings, since they are held ‘in-camera’ and no outside parties are allowed. In the case of ‘designated’ courts, no such permission was required as these are open ones, allowing anybody to sit through the proceedings. The entire observation was done through sittings on numerous occasions, spread over months when matters of POCSO Act were taken up by the judges. The researcher had a chance to observe nearly 10 victims in the course of the proceedings. These victims were in the age group of 12 to 17 years. The process of examination as well as cross-examination of these victims, in addition to other POCSO Act proceedings, were seen first-hand by the researcher.

Observation in ‘Special Courts’

Observation in ‘Designated Courts’

The designated courts present a completely different picture when handling cases of child matters. These are regular courts where the Additional District Judges have been empowered to hear POCSO Act matters as well. So during the course of the day, numerous matters pertaining to other crimes, motor vehicle accidents and criminal appeals are taken up, with POCSO Act being one of them. While in one court, there was no specific timing to hear these cases, in another court, a timeline is fixed, such as after twelve or lunchtime, that the judge will hear the POCSO Act matter, if listed. However, SPP insisted that on a day when the victim appears, the POCSO Act case takes priority over others and efforts are made to complete the entire process on the same day.

Concluding Remarks

Children have inherent vulnerabilities, due to their age and understanding. They cannot be weighed on the same scales as adults; rather, their distinctiveness and individuality have to be given primary consideration in all actions concerning them. ³⁹ The Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, ⁴⁰ an international normative instrument, lay down good practices in the area of treatment of child victims. While delineating the basic principles of dignity, protection, participation and ensuring the best interests of children, the Guidelines recognize the right to be protected from hardships during the justice process as a discreet and invaluable right that must be enforced for children who come in close contact. India definitely has taken the first step in the right direction with the enactment of POCSO. But ground realities do not seem to satisfactorily reflect the changed stance. The process of implementation of special measures seem to be rather slow-paced. Even after a decade of its existence, the observation regarding the functioning of courts in POCSO Act matters does not paint an encouraging picture.

Measures that need immediate attention and incorporation may be outlined as under. Establishing FTSCs should be of utmost priority and set up in every district of the country to prosecute POCSO Act matters in a time-bound and efficient manner. A dedicated body of personnel must be appointed, especially as judges and prosecutors, to deal with these matters. ⁴¹ Merely designating existing ones as ‘special’ and burdening them with extra cases do not meet the needs of the situation; neither does it forward the cause of children. Third, understanding the dynamics of children is very important to successfully prosecute the offenders. Rigorous training and awareness of persons ⁴² engaging in POCSO Act matters are important to generate the right perspective and frame of mind to deal with child-specific issues. Why do children remain quiet, why do they turn hostile, when do they lie and what factors generate fear in them—these and several such aspects need to be deciphered to serve the cause of justice in POCSO Act cases, especially when convictions are rare. Fourth, infrastructural augmentation of courtrooms to accommodate the needs of children is significant. Much like the ‘special’ courts, where audio-visual facilities are utilized, separate child-friendly rooms are created separate entrances are maintained for accused and victim, all courts must simulate the same look. Preferably, all the trappings of the regular court, such as court dresses, so far as practicable, should be avoided. The object should be a relaxed, stress-free and open environment for children. Next, certain procedural regularities may be incorporated in these matters. Expediting the cases of children is of utmost significance. Hence, day to day hearing of these matters should be ensured. For the children who depose as witnesses, all efforts must be made to schedule their testimony in accordance with their daily routines and developmental needs. At no point, the postponement of hearing of children over days should be done to avoid the ‘trauma’ of re-victimization. Utilizing electronic means for recording statements, as is done in special courts presently, should be encouraged to lessen the emotional trauma for the children. ⁴³ Direct interactions between the victims and counsel should be prohibited; all questions should be routed through the judge. Further, defence counsels should be barred from making humiliating and degrading suggestions to victims during their deposition. Additionally, allowing testimonial aids such as anatomically correct dolls and drawings to facilitate a child’s testimony may help the children overcome fear or inability to find the right words. ⁴⁴ Lastly, developing a comprehensive community-based social support system to provide care and assistance to children coming as victims is very important. As observed, child victims are mostly left to fend for themselves, with no therapeutic assistance in the process of appearance or giving testimony. While some are accompanied by NGOs or CWCs, it is mostly sporadic in nature. A social support system can help empower the child witnesses, enhance their competence as well as provide the necessary therapeutic assistance to the children and families. Constant communication with the children through personal visits, court orientation prior to the commencement of trial, building an effective knowledge base to understand the court procedures and language are important aspects in building the efficacy of the system as a whole. To conclude, in the words of the apex court, ⁴⁵ it is the bounden duty of the States to create and maintain a protective and healthy environment in which children who are the future of this country can bloom and become mature and responsible citizens of the country.