“The views represented in this opinion piece do not necessarily represent those of the Willy Brandt School of Public Policy.”
Mr. Narendra Modi’s Government in its new term has launched a series of amendments in the existing acts and introduced quite a few bills. From repealing Article 370 of the Indian Constitution to introducing the Surrogacy Regulation Bill, the government is rolling up its sleeves to overhaul a wide range of issues persistent in the country. In the same vein, the government has passed amendments in the existing Protection of Children from Sexual Offences (POCSO) Act 2012 by introducing the death penalty for the convicted of ‘aggravated’ Child Sexual Abuse (CSA) and stricter punishments for other crimes related to CSA. This promulgation of the ordinance in the direction of curbing the incidents of CSA has divided scholars, legal experts, and criminologists. Rhetorically, the matter of death penalty on CSA has always confronted contenting views. Supporters defend sending a strong message to the entire nation regarding the protection of children, others believe that the introduction of such measures would deter reporting and direct further harm to the victims. The problems associated with the death penalty for such crimes towards minors become paramount when noting that more than 90% of CSA offenses, as noted by National Crime Records Bureau (NCRB) 2016, are done by perpetrators known to the victims. The death penalty might also discourage the public discourse on such cases in the shroud of cultural norms of the country where matters related to sexual abuse or awareness are still considered offensive.
The total number of cases registered under the POCSO Act in India was 36,321, while a total of 106,958 crimes against children were recorded (NCRB 2016). Rape incidents against children rose 82% in 2016 compared to 2015. The rise in numbers could be due to less severe consequences or retributive justice in place to discourage people from committing such offenses. Furthermore, episodes subsequent to the enactment of POCSO Act in the year 2012 entailed increasing incidents of cases reported for rape among children, from 8,541 in 2012 to 19,765 cases in 2016 (NCRB, 2012 and 2016). By putting strong penal proceedings provisioned in the amended POCSO Act (2019), the government expects the amendments to retrench the rising incidents of sexual abuse of children and mount the peril of new kinds of crimes such as child pornography, trafficking for sexual purposes, etc. In addition to this, some of the threads of amendments such as time-bound investigations, One Stop Centres, and establishment of fast-track courts, would smoothen the post abuse processes. On a statistical relation, 12,038 cases regarding CSA are pending from 2015 which makes the total number of pending cases as high as 48,060 (NCRB, 2016).
These expanding numbers narrate two polar stories. First, the increasing number of CSA incidents could mean that the POCSO Act (2012) has made a considerable contribution in educating and sensitizing masses on the reporting of these actions. Second, the exorbitant numbers in contradiction to the existing laws related to CSA, question the gist of the directive: Are the prosecution measures/penalties mandated in POCSO Act sufficient to deter the CSA incidents in the country or the policies should also take care of amending the structural and cultural factors which inhibit the public/judicial discourse of such incidents?
While the present government expects the amendments in POCSO Act, especially the introduction of the death penalty for ‘aggravated sexual abuse of children’, to curtail such incidents, an array of organisational and individual entities condemns capital punishment and advocate instituting a moratorium on it. Human Rights Watch, an international civil society organisation, opposes capital punishment in all circumstances. It considers the death penalty as unique in its cruelty and finality, driven by arbitrariness, prejudice, and error (Human Rights Watch, 2013). Some scholars and lawmakers, likewise, consider the death penalty as a politically-maneuvered response to an intricate matter which also has a high likelihood of posing a multilateral threat on the lives of children (Ikram, 2019). Furthermore, it also increases the odds of having far fewer conviction rates, as a death sentence itself requires robust evidentiary support and infallible corroboration. This could result in a prolonged justice procedure making children undergo repeated questioning rounds in the trials.
In a country like India, where culture plays a huge role in guiding actions, disclosure and reporting of CSA incidents remain a subject of concern. When considering that 95% of CSA cases involve adults known to the child, simply adding stricter laws in the form of retribution will not thwart the high rate of child sexual abuse on its own. Rather, policymakers must contemplate over the peripheral factors which are often defined in terms of pervasive cultural norms and structural factors. These structural issues are largely defined in terms of lack of awareness regarding the reporting or jurisdictional procedures, limited or inappropriate education on matters related to sexual behavior, understanding of ‘good touch and bad touch’ and quick institutional or formal access to report such incidents or to seek help in post abuse situations. Additionally, cultural factors are much more intricate and are deeply rooted in the way of thinking and life. In this regard, Katerndahl et al (2005) have noted that acculturation level is more in correlation with CSA reporting than with ethnicity and reporting. However, these cultural factors infiltrate beyond the reporting of CSA. They often influence the whole episode from discovery to the disclosure of CSA. The feeling of shame, self-blame, gender stereotyping, prevalent mindsets of people on the issues of sexual abuse, family honor and respect towards elders attached to the value system often inhibit the sufferers of child sexual abuse and their families to come forward and speak about it which is exacerbated in the presence of the above mentioned structural hindrances.
The death penalty as an ultimate weapon to combat the incidents of CSA will serve no good until there are policies and frameworks in place for a holistic overhaul. This could be accomplished by simultaneously working on reformative aspects by:
- Raising awareness and educating families/communities by via diverse mediums of social and behavioural change communication, educational institutions, role models, etc. so that they too are aware of this phenomenon and are in a better place to ensure the safety of their children.
- Disseminating authentic knowledge amongst children regarding sexuality and sexual behavior through the formal education system.
- Making jurisdictional discourse smooth and efficient to deliver speedy justice or time-bound justice.
- Providing psychosocial assistance and protection to the victims/survivors by training and sensitizing the police, court personnel, social workers, civil society members and medical professionals, especially those who work with cases related to children.
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