4 yrs since POCSOA in Maharashtra: Authorities lack understanding of Act, says study

It has been four years since Protection of Children from Sexual Offences Act (POCSOA) was introduced in Maharashtra, yet neither the police nor the child welfare committees, hospitals, special public prosecutors, district child protection units, or juvenile justice boards have a clear idea about the ambit of the Act. What's more alarming is the worryingly child-unfriendly way in which the matters are dealt with, finds a new study conducted by anti-trafficking organisation Prerana.

Dr Pravin Patkar, who conducted the study along with social activist Pooja Kandula, spoke of how the awareness score for police respondents was 56 per cent, which was still better than that of public prosecutors at 48%, child welfare committees at 43%, and hospitals at 43%.

Lamenting the state of affairs Dr Patkar said: "The basic mechanisms required under POCSOA are missing or are at best patchy. Important functionaries are missing, the duty bearers' awareness about the text and spirit of POCSOA, their understanding of the existence and role of the other stakeholders is very poor, too."

"The introduction of child-friendly treatment, a gift from POCSOA, receives little appreciation and attention from the range of duty bearers under its purview. The standard of infrastructure and services is abysmal, with very little importance accorded to privacy, dignity, and safety of the minor victim. So far, POCSOA has failed to reach out to the differently-abled children, who become victims of sexual offence more frequently."

"Any responsible government will first and foremost correct the prevailing situation on war footing. Announcing stricter punishments will yield publicity, but certainly not provide relief to the victims in the state, which is ideally the spirit and text of POCSOA. The research highlights the gaps, the prevailing situation, and what should be done to take a step in the right direction to raise awareness about the responsibilities of the various authorities involved, as per POCSOA."

The study found that nuances of various laws such as the Juvenile Justice Act, POCSOA, IPC, and CrPc overlap, and the gaps between them are unclear to most police personnel. "All police personnel knew that they had to consider anyone below the age of 18 years as a child. However they also mentioned that in practice, they view only persons below 12 as a minor," the study revealed.

This also points tot he fact that POCSOA considers it to be the responsibility of the police personnel handling the case to ensure child-friendly practices such as personnel not presenting themselves before a victim in uniform, arranging for shelter and other needs of the child, protecting the identity of the child, not letting the accused and his representatives encounter the victim, reporting the matter to the CWC, mobilising the other service providers, and follow a distinct timeline. It was found that such comprehensive understanding of child-friendly practices was not reflected in the responses given.

The study also revealed that majority of the rural police stations lacked functional toilets and had no separate rooms or waiting areas to provide privacy to the victim or the family. Sixty four per cent of rural police stations had no separate waiting room and most lacked functional toilets.

Shockingly, in most districts, when a case came to their attention, police took the child survivor of abuse in a bus or a private vehicle to the district headquarters, often with the accused. In some cases families were also asked to reach district headquarters on their own. Also, the victim's family has to spend a considerable amount of money every time they are summoned to the court.

While only one police officer is trained in POCSOA from each police station, when s/he is on leave or transferred, other officers without necessary orientation are assigned to handle the cases. This, by the police personnel's own admittance, is problematic. Additionally, many police stations mentioned not taking down complaints outside their jurisdiction, although POCSOA states otherwise.

Despite the law not making it mandatory, all the police respondents (100%) mentioned that recording the statement of a minor victim under Sec 164 of CrPC is the most important step to follow on receiving a POCSOA complaint. However, more than half of the police respondents (61%) stated that not every child against whom an offence under POCSOA has been committed is sent for medical examination. Thirty nine per cent police respondents mentioned that they send only cases of 'rape' falling under IPC Sec 375/ 376 for medical examination," says the study which deems it "a serious misunderstanding".

The study found that the prime and exhaustive purpose of conducting a medical examination for POCSOA cases is not clear to most of the police personnel working on the frontline. "Less than half (39%) police respondents mentioned that they have to report every case of POCSOA to the Child Welfare Committee (CWC) and another 17% mentioned they have to report every case to a court. Although majority of the police respondents stated that they had no challenges in working with the CWC, 38% of the police respondents also stated that they had no interaction with the CWCs on the POCSOA cases that they handled."

With regard to adequacy of the services for children in their district, 78% police personnel said they were adequate, while 22% said they weren't enough. Eighty three per cent police respondents were aware of the Manodhairya scheme and 78% were aware of their role under it. "As many as 61 % of the respondents said that the child's statement is taken at the police station, which is against the spirit of POCSOA. Of these, only two police personnel mentioned that they record the statement in camera in a private room inside the police station," the study underlines.

What's most shocking was that 45% police respondents stated they had not come across any case of differently-abled child victims of POCSOA offences. "This indicates a worrying possibility that incidences of sexual abuse against differently-abled children may still be going unreported," the study states.

Public Prosecutors

A large majority of public prosecutors had dealt with cases of sexual offences against children prior to POCSOA. Notwithstanding the fact that POCSOA mentions the age of the child as 18, in the understanding of the prosecutors, child friendly procedures are adopted in most districts courts only when the child is 12 years of age or below. Although a large majority (83%) of public prosecutors mentioned that they have designated court rooms for POCSOA, the courts are not exclusively dedicated to POCSOA cases. They also try other cases in which adult women are involved. With negligible exception, all the special courts in these districts do not have a separate waiting room for the victim. The victim is made to wait either in the public prosecutor's office or outside the court room risking exposure to and contact with the accused and/or his representatives. Most district courts (71%) had cameras and curtains/ screens to separate the victim and the accused. However, not all courtrooms in a court that are used as special POCSOA courts are thus equipped.

Juvenile Justice Boards

None of the juvenile justice boards (JJBs) mentioned coming across any accused child under POCSOA below 12 years of age. "Most JJBs thought that increase in the number of cases of sexual offences against children is due to sexual curiosity and experimentation among teenagers fueled by exposure to media and internet," points out the study, "All JJBs grant bail in a day to the accused child under POCSOA even when the offence is established."

Child Welfare Committees:

Not only did 75% of CWCs not have the full strength of five staff members, there was rampant absenteeism and often only two members were managing the affairs. The provision of five persons in the CWC composition was made to facilitate a majority decision when there is difference of opinion. In one district, it was observed that mostly two members attended the sitting and almost always, they had a difference of opinion. Two CWCs did not have a chairperson. The deficit composition of the CWCs becomes all the more serious as POCSOA has definitely added to their workload and responsibilities. This also raises a serious question about the legal validity of their orders and decisions.

A large majority (88%) of CWCs begin operation after a delay of an hour or two. Absence of seating arrangements for children, parents and other stakeholders waiting for CWCs to start their work was also noticed. Once again, the absence of separate room for victims in most CWCs (77%) cause serious violation of the privacy of the child. Almost all CWCs (94%) claimed to have obtained some training on POCSOA, but half (50%) admitted that the training did not equip them to handle such cases. The CWCs also mentioned that police do not co-operate with their instructions and do not appear before the committee despite summons being issued. Only a third (31%) of the CWCs mentioned that the police report every case of sexual offence to the CWC in the stipulated time.

Hospitals:

Hospitals lacked clarity with regard to legally-binding procedures such as medical examination, consent for medical examination, and child-friendly procedures. They attribute delay in medical examination of the child survivors to excessive workload. The study finds "a gross lack of sensitivity in hospitals with regard to the dignity and privacy of female child survivors".

A lack of infrastructural facilities and lady doctors at the PHCs force all child survivors to be brought to district-level hospitals for medical examination. "Police often direct the families to take the victim to the district hospital on their own. This causes considerable inconvenience to the victim and her/his family and may also result in loss of critical evidence." Any on-duty doctor, male or female, conducts the examination, regardless of the victim's gender.

Sixty nine per cent of the hospitals felt it is important to mention the elasticity of the vagina or hymen in the medical report, and 44% of those who replied in the positive, mentioned that they did so because the police asked for the same. Hospitals stated that when the police bring a survivor for examination they ask for specific details in the report (like genital injuries, other evidence of sexual assault, if the child is capable of sexual activity, etc). Hospitals affirmed that their doctors conduct the infamous two finger test during the medical examination.

WHEN LAW FAILS A CHILD

The nine-year-old did not fully understand what a senior in his Narayangaon school in Thane was doing to him all of November last year. It was only when he complained of intense pain was he taken to a doctor who said he had been sodomised. After the police registered a complaint, the parents were asked to take the child to the rural hospital. Travelling from their village 8 km away would mean loss of labour for the adivasi parents who only took him after four days. Later both the boy and his parents were repeatedly called to the police station with the perpetrator (himself only 15) and his parents. The police told them it would be best to work out a “mandavli (compromise) for the sake of their son who will be ashamed all his life”

WHERE ARE THE DIFFERENTLY-ABLED?

The complete lack of even a single case of a differently-abled child among the cases registered raises the worrying question of whether the implementation of POCSOA is failing or the doubly vulnerable are being left out in a deliberate invisibilisation,  wonders Dr Patkar. “It is unlikely that not even a single such case came up across the state over four years. Why are these cases not showing up on the radar? Where are we falling short? These are questions all stakeholders involved in implementing POCSOA need to introspect. Otherwise it beats the very purpose of having such a powerful Act on paper.”