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Let’s Talk About Child Rape: Pendency high, conviction rate low, says lawyer Indira Jaising

In Part 4 of our series, Let’s Talk About Child Rape, lawyer Indira Jaising writes that law alone cannot end child rape. Rape within the family cannot be policed. Unless our attitudes to children change, child rape will continue.

india Updated: May 31, 2018 07:53 IST
Let’s Talk About Child Rape,Child rape,Indira Jaising
(Illustration: Animesh Debnath)

Everyday newspapers carry reports of children being raped, yet the rate of conviction is as low as 29.6% and the pendency of cases is as high as 89%. It is difficult to understand this rate of pendency, which in my opinion cannot be attributed only to the lack of availability of judges or court time. Rather, it shows a lack of sensitivity on the part of the investigators and the decision makers.

The rape of children, unlike that of adults, requires very little evidence.

In the case of adult women, there is a need to prove absence of consent — something that is a non-issue when it comes to child rape. Why then should trials take so long?

Once medical examination establishes sexual intercourse or any other form of sexual assault without penetration, the only issue that remains is the identity of the perpetrator.

Giving some attention to forensic evidence of a sexual assault would go a long way in expeditious conclusion of child rape cases.

In the case of a 10-year-old from Chandigarh, who unfortunately gave birth to a child after being raped by her own uncle, I had made submissions to the Supreme Court that this should be an open and shut case for obvious reasons. While the police had arrested a relative, on doing a DNA test, it was found that the accused was an uncle of the child.

A conviction of the uncle, followed within days of his arrest, based entirely on forensic evidence. In a case such as this, the child herself need not be a witness, since the medical evidence and the DNA test established beyond doubt the sexual intercourse and the identity of the rapist. Both the identity of the rapist as well as the fact of sexual assault are proved and to examine the child would be to victimise her.

This procedure could not only expedite convictions but also spare the child humiliation during cross examination and must be followed in all cases.

Unfortunately, it is only the high-profile cases that get so much time, attention and resources. The December 2012 gang rape of a student on a bus in Delhi (she died later) was not only well investigated but also resulted in speedy convictions only because it received so much media attention. And when a raped woman or child is also murdered, the case is taken more seriously. One sees a pattern, concern for the dead and condemnation for the living, in cases of violence against women. If only this kind of importance were given to every case of child rape, we would see a higher rate of conviction, that too speedily.

I have seen cases, in which even when there is no allegation of actual penetration, the police has called for a vaginal investigation. Where is the need of the two finger test when no actual penetration is alleged? This is not only re-victimisation of the child but also patently illegal. Although the Supreme Court has held that the two-finger test is unlawful, in the matter of Lillu @ Rajesh v. State of Haryana (2013) 14 SCC 643, the test continues to take place.

Unknown children, on whom there is no media attention, are often failed by the criminal justice system. It is inevitably a class issue and the criminal justice system may ignore the meek and the powerless. Add to this a communal dimension or a caste dimension and attempts to obfuscate the issue by creating an atmosphere of prejudice against the victim will surface in a section of the media, ready and willing to obfuscate the issue .

Add to this the ordinances passed by the government following the Kathua and Unnau rape cases , which prescribed the death sentence for rapists of children aged below 12 years of age.

The imposition of the death penalty, as also a mandatory minimum sentence of 20 years, in the case of child rape is bound to result in fewer convictions.

Judges, knowing that they have no option but to sentence a convict for 20 years in jail, will tend to acquit a rapist rather than send away a convict to jail for such long periods.

The law is also likely to be challenged in the Supreme Court and declared unconstitutional on the ground that it takes away the discretion of a judge to decide on the punishment .

The death penalty is yet to be shown to be a deterrent.

There have been several judgments in the US in which the death penalty to rapists has been declared unconstitutional and disproportionate. One has also to look at the mind of a criminal when considering the appropriate punishment. A criminal who may not necessarily want to murder a victim after rape may well do so considering the punishment for rape and murder will be capital punishment.

I have personally handled cases in which it appeared the rapist had begun with the intention of committing rape but ended up murdering the victim in order to destroy evidence.

Such laws, far from protecting child victims, will damage to them.

The problem lies in the neglect of children in our society. Despite the lip service we pay to children in terms of sympathy, we are a country which is extremely cruel to its children.

One look at children on the street begging for a living will convince us that we do not care for childhood as such. This form of cruelty does not disturb our conscience, but the rape of a child does. The degree of cruelty remains the same. Unless we strike at the root of cruelty to children in any form , we can hardly call ourselves a civilised society .

Finally, I would say that not by law alone can we end child rape. Rape within the family cannot be policed in every household. It is the mindset of a male family member that he is entitled to rape a child that must change .

A child is a living autonomous being, not the property of a parent in a custodial situation available for sexual abuse. Until our attitude to children changes, child rape will continue.

The author is a Supreme Court lawyer.

This is the fourth part of our series, Let’s Talk About Child Rape, which focuses sharply on the rising incidents of sexual violence against minors. You can read part one, two and three here.

First Published: May 31, 2018 07:29 IST