(Illustration: Animesh Debnath)
(Illustration: Animesh Debnath)

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.
By Indira Jaising
UPDATED ON MAY 31, 2018 07:53 AM IST

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.

SHARE THIS ARTICLE ON
Close
INS noted that there is a huge distinction between editorial content from quality publications and fake news that is spreading on other information platforms.(AP file photo. Representative image)
INS noted that there is a huge distinction between editorial content from quality publications and fake news that is spreading on other information platforms.(AP file photo. Representative image)

‘Pay for news’: Indian Newspaper Society in a letter to Google

By HT Correspondent, New Delhi
PUBLISHED ON FEB 26, 2021 04:26 AM IST
President of INS, L Adimoolam, said in a letter addressed to Google India’s country manager Sanjay Gupta that Google should “pay for news generated by newspapers which employ thousands of journalists on the ground at considerable expense”, the body said in a statement, adding that it is in discussions with the tech giant.
Close
Police clarified that the material found was not an assembled explosive device.(ANI Photo)
Police clarified that the material found was not an assembled explosive device.(ANI Photo)

Car with explosives found near Mukesh Ambani’s residence

By Vijay Kumar Yadav, Manish Pathak
PUBLISHED ON FEB 26, 2021 04:01 AM IST
Police said the vehicle — a green Scorpio with a wrong number plate had around 20 Gelatin sticks in it — was about 600 metres away from the house of Reliance Industries Limited chairman Mukesh Ambani on Altamount Road.
Close
Karbi Anglong: Union Home Minister Amit Shah addresses the 'Unity, Peace and Development Rally' at Dengaon in Karbi Anglong, Thursday, Feb 25, 2021. (PTI Photo) (PTI02_25_2021_000183B)(PTI)
Karbi Anglong: Union Home Minister Amit Shah addresses the 'Unity, Peace and Development Rally' at Dengaon in Karbi Anglong, Thursday, Feb 25, 2021. (PTI Photo) (PTI02_25_2021_000183B)(PTI)

BJP has stopped entry of illegal immigrants, says Amit Shah in Assam

By Utpal Parashar, Guwahati
PUBLISHED ON FEB 26, 2021 03:46 AM IST
“There was a time when Assam was known for agitations and violence. The biggest contribution of the Narendra Modi government at the Centre is to establish peace in Assam, ensure development, give corruption-free administration, rid the state of agitations and put the brakes on the entry of illegal immigrants,” Shah said at a rally in Batadrava Than
Close
Around 40,000 trade associations have extended their support to the call for the bandh.(Ravindra Joshi/HT file photo)
Around 40,000 trade associations have extended their support to the call for the bandh.(Ravindra Joshi/HT file photo)

Farm unions, traders to join Bharat Bandh today

By HT Correspondent, New Delhi
PUBLISHED ON FEB 26, 2021 03:21 AM IST
Issuing a statement, the Confederation of All India Traders (CAIT) — the umbrella body which has called for the strike — said that all commercial markets across the country will remain closed on February 26 against rising fuel prices, the new e-way bill and the goods and services tax (GST).
Close
Altogether, HT is aware of five NIC domain addresses – four with @gov.in suffixes and the fifth an @nic.in one – that have been used to launch cyber attacks.(File photo. Representative image)
Altogether, HT is aware of five NIC domain addresses – four with @gov.in suffixes and the fifth an @nic.in one – that have been used to launch cyber attacks.(File photo. Representative image)

Officials targeted in new phishing bid via govt IDs

By Anisha Dutta, New Delhi
UPDATED ON FEB 26, 2021 01:30 AM IST
The attack, which took place on Monday, prompted the government’s IT departments to send out an alert the following day to large groups of officials, according to emails seen by HT.
Close
Tandav is facing at least 10 FIRs for hurting religious sentiments, intending to disturb caste and communal amity – charges punishable under Sections 153A and 295 of Indian Penal Code (IPC) with a maximum jail term of three years.(MINT_PRINT)
Tandav is facing at least 10 FIRs for hurting religious sentiments, intending to disturb caste and communal amity – charges punishable under Sections 153A and 295 of Indian Penal Code (IPC) with a maximum jail term of three years.(MINT_PRINT)

Tandav controversy: Amazon Prime executive’s bail plea rejected by Allahabad HC

By JItendra Sarin, Prayagraj
PUBLISHED ON FEB 26, 2021 12:57 AM IST
A single-judge bench of justice Siddharth rejected the application of Amazon Prime Video’s Aparna Purohit in connection with the ongoing investigation against Tandav for allegedly outraging religious feelings and showing Hindu gods in poor light.
Close
The deceased are yet to be identified after a blast in a a firecracker factory in Tamil Nadu killed five people. (Getty Images).
The deceased are yet to be identified after a blast in a a firecracker factory in Tamil Nadu killed five people. (Getty Images).

5 dead, 19 injured in blast at firecracker factory near Tamil Nadu's Sivakasi

PUBLISHED ON FEB 26, 2021 12:18 AM IST
  • Fire engines and rescue teams were pressed into service and the injured are being treated at the Sivakasi government hospital.
Close
Karnataka chief minister BS Yediyurappa despite the threat to his own chair, has taken it upon himself to bring the BJP back to power with an absolute majority in the 2023 assembly elections. (FILE PHOTO).
Karnataka chief minister BS Yediyurappa despite the threat to his own chair, has taken it upon himself to bring the BJP back to power with an absolute majority in the 2023 assembly elections. (FILE PHOTO).

CM Yediyurappa, the recalcitrant conformist, turns 78

By Sharan Poovanna
UPDATED ON FEB 26, 2021 12:57 AM IST
  • A Bengaluru-based political analyst said that Yediyurappa's supporters may want to go in for low-key birthday celebrations even though detractors may post as many ads as possible to remind everyone of his age.
Close
Whale sharks are protected under the Wildlife Protection Act and are ‘endangered’ species in the International Union for Conservation of Nature. (HT PHOTO).
Whale sharks are protected under the Wildlife Protection Act and are ‘endangered’ species in the International Union for Conservation of Nature. (HT PHOTO).

Huge whale shark washes up on Odisha coast; locals push it back into the sea

By Debabrata Mohanty
PUBLISHED ON FEB 25, 2021 11:42 PM IST
  • Officials said some local youths spotted the big fish lying lifeless on the Sonapur coast on Thursday afternoon.
Close
The depth of the earthquake was 30-km, the NCS said.(File photo. Representative image)
The depth of the earthquake was 30-km, the NCS said.(File photo. Representative image)

Earthquake of 3.6 magnitude jolts Assam's Guwahati

Posted by Harshit Sabarwal | PTI
UPDATED ON FEB 26, 2021 12:07 AM IST
The earthquake took place at 10.33 pm and the epicentre was in Kamrup district near Guwahati, the National Center for Seismology said.
Close
The highest maximum day temperature in February in the last 10 years was recorded on February 20, 2016 when the mercury climbed to 40.9 degree Celsius. (HT FILE PHOTO).
The highest maximum day temperature in February in the last 10 years was recorded on February 20, 2016 when the mercury climbed to 40.9 degree Celsius. (HT FILE PHOTO).

Bhubaneswar records maximum day temperature pan-India for 2nd consecutive day

By Debabrata Mohanty
PUBLISHED ON FEB 25, 2021 10:56 PM IST
  • Officials in Bhubaneswar's Regional Meteorological Centre said the maximum temperature of 38 degrees Celsius in Bhubaneswar on Wednesday too was highest on that day.
Close
World's highest railway bridge over Chenab river in Reasi district will provide all-weather connectivity.(ANI File Photo)
World's highest railway bridge over Chenab river in Reasi district will provide all-weather connectivity.(ANI File Photo)

'Infrastructural marvel' Chenab bridge completes important milestone

By hindustantimes.com | Edited by Amit Chaturvedi
PUBLISHED ON FEB 25, 2021 10:47 PM IST
The length of the Chenab bridge will be 1,315 metres with 17 spans, of which the span of the main arch across Chenab river will be 467 metres. The viaduct portion comprises a straight and curved portion.
Close
Madhya Pradesh Chief Minister Shivraj Singh Chouhan addresses a press conference through video conferencing.(ANI)
Madhya Pradesh Chief Minister Shivraj Singh Chouhan addresses a press conference through video conferencing.(ANI)

MP CM Shivraj Singh Chouhan urges people to avoid travelling to Maharashtra

PUBLISHED ON FEB 25, 2021 10:36 PM IST
  • In MP, the positivity rate increased to 2.3% on Thursday and there are 2,435 active cases in the state.
Close
Indian children wearing face masks as a precaution against Covid-19. (AP)
Indian children wearing face masks as a precaution against Covid-19. (AP)

'375 mn Indian children may suffer due to Covid-19 pandemic': CSE report

By HT Correspondent, New Delhi
UPDATED ON FEB 25, 2021 11:00 PM IST
  • CSE’s director general Sunita Narian said Covid-19 had made the world’s poor poorer.
Close
Baba Ramdev releases the scientific research papers on the Patanali medicine for COVID-19, during a press conference in New Delhi,(PTI/ File photo)
Baba Ramdev releases the scientific research papers on the Patanali medicine for COVID-19, during a press conference in New Delhi,(PTI/ File photo)

Coronil row: Patanjali condemns IMA for seeking explanation from Health min

ANI
PUBLISHED ON FEB 25, 2021 10:27 PM IST
The Indian Medical Association (IMA) on Monday demanded an explanation from Union Health Minister Dr Harsh Vardhan for promoting Patanjali's Coronil Ayurvedic medicine.
Close
SHARE
Story Saved
OPEN APP