Alarmed at the rising cases of sexual assault against children in the country, the government for the first time proposes to put the onus of proving their innocence on the accused in such cases, in a landmark shift from the existing laws.
According to the draft Protection of Children from Sexual Assault Bill, 2010, it will not be for prosecution to prove the guilt of the accused, but the onus will be on the accused to prove that they have done nothing wrong.
Other main provisions include completion of the trial within a year and government and army officials found guilty of child abuse could face upto imprisonment for life. The draft bill has been circulated by the law ministry to concerned ministries before sending it for the union cabinet’s approval.
Under the existing provisions for sexual assault or rape under the Indian Penal Code (IPC), the prosecution has to prove the guilt of the accused.
“A government study in 2007 found 53 per cent of an estimated 420 million children below 18 years of age in the country had undergone some form of sexual victimisation,” Law Minister M. Veerappa Moily told HT.
“This totally convinced us that a special law is mandatory to effectively tackle the issue,” the minister said, adding that children in Andhra Pradesh, Bihar and Delhi reported the highest percentage of sexual abuse among both boys and girls.
Asked how would the government change the law to shift the onus of proving their innocence on the accused, Moily replied :“We propose to amend section 105 of the Indian Evidence Act, by adding a fresh clause specifically on the burden of proving innocence in cases of sexual assault against children.”
He said the conviction rate in child sexual assault case was less than five percent and putting the onus on the accused will help in improving the conviction rate.
“The court will ensure that the child is not exposed in any way to the accused at the time of evidence, while at the same time ensuring that the accused is not in a position to hear the statement of the child and communicate with his advocate,” says another provision in the draft law to protect the child victims.
In a bid to provide faster justice, the proposed law provides for setting up special courts for trial of child sexual assault, which includes exposing children to pornographic material, and a time period of one year to complete the trial.
The government has proposed a higher punishment for officials than the normal accused. For normal accused, the punishment stipulated is between seven and ten years in jail plus fine.
In case of those given the responsibility to protect children including police and army officials found guilty of sexual assault, the minimum punishment prescribed is ten years and maximum is life term with a fine.
The government has also proposed that the state would make arrangement for counselling of child sexual abuse victims and even provide for their rehabilitation, if required.
During trial, the court will have to ensure that there is no adverse impact on child of the proceeding, which would be in camera.
Finding of child abuse study 2007
53 per cent of children in India reported sexual abuse
21.90 per cent of children faced severe forms of sexual abuse
Around six percent reported sexual assault, which meant rape or sodomy.
Children on streets, at work and in child institutional care reported highest incidence of sexual assault
50 percent of the accused were found to be known to the victim
Most children do not report the matter to anyone.
Sexual abuse against girl child was higher than boys.