III. Failure of the Justice System

When a case is reported there needs to be a simple response, by the police, by the health services and by the whole system. But at the moment it is a three-ring circus.

–Vidya Reddy, Tulir (Centre for the Prevention and Healing of Child Sexual Abuse), Chennai, April 2012.

Only a tiny proportion of child sexual abuse cases are ever reported to the police. One of the most important reasons why children and their relatives choose not to come forward is a fear that they will not be treated sympathetically. Indeed, many victims and the adults supporting them endure terrible experiences that add to their trauma. These can include intimidating interviews by police officers, degrading and painful medical examinations, and intimidation by perpetrators to drop charges. Court cases too can be unpleasant experiences for the child since they can last for years and involve stressful cross-examinations.

This can deter people from coming forward and allow perpetrators to get away with their crimes unpunished. As Vidya Reddy of the Chennai-based NGO Tulir (Centre for the Prevention and Healing of Child Sexual Abuse) explained:

When a case is reported there needs to be a simple response, by the police, by the health services, and by the whole system. But at the moment it is a three-ring circus.[58]

India’s new Protection of Children from Sexual Offences Act and several prior initiatives have sought to address many of these issues. In every police station in the country, for example, there is now supposed to be a special juvenile police officer, who is trained to deal sensitively with crimes involving children.

At times, the Indian criminal justice system has proven itself capable of responding decisively to child sexual abuse, as in the case above of Sonu Lalman, who was convicted for raping a six-month-old girl. A doctor who had examined the child's wounds reported the case to police. Lalman was arrested and within seven months had been tried, convicted, and sentenced to 10 years in prison. Presiding Judge Kamini Lau in her verdict said:

This case is a glaring example of the growing menace of sexual abuse of young children. A substantive, stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others.[59]

Unfortunately such a decisive justice system response is seldom seen in cases of child abuse. There is a great deal of inconsistency in the way the police, doctors, and the courts in different parts of the country handle such cases. “The process of justice has to be a process of healing where the child is empowered by the whole system,” Shantha Sinha, chairperson of the National Commission for the Protection of Child Rights, said. “Every step of the way has to help, and if it doesn't, then forget it.”[60]

The Police

The police have a crucial role to play in combating child sexual abuse because they should be the first point of contact for anyone wishing to report a case. The sensitivities required for this role are recognized by the Juvenile Justice (Care and Protection of Children) Act of 2000, which obliges every police station to have a specially trained “child welfare officer” and every district and city to have “special juvenile police units.” Their job is to “co-ordinate and upgrade the police treatment of juveniles and children.”[61]

Each of these units is meant to be supported by social workers funded by the Integrated Child Protection Scheme.[62] Child rights experts and lawyers are brought in to train the units, but as with other government programs, their effectiveness differs from state to state.

In New Delhi, the Special Juvenile Police Unit works closely with NGOs and has begun a community outreach program to inform people about child rights and child safety issues. The head of the unit, Additional Deputy Commissioner Suman Nalwa, told Human Rights Watch that efforts had also been made to educate the police force. Nalwa admitted she had doubts about how soon, if ever, the situation would change. “It is a long shot,” she told Human Rights Watch. “We have already lost 60 years [since India’s independence]. I don’t know how many more years it will be before we can change the mindset of society.”[63]

The Special Juvenile Police Unit in Bengaluru, Karnataka state, also has a relatively good reputation. It has set up a new police post next to the city's two Child Welfare Committees (CWCs), which are responsible for the care and protection of vulnerable children.[64] Meena Jain, chairperson of one of the committees, said the move should greatly enhance coordination. “Without the police, the CWC cannot do great work,” she said. “They are the key stakeholder in our functioning.”[65]

But in other parts of the country, special juvenile police units exist only in name. The head of a police post in Uttar Pradesh conceded to Human Rights Watch that officers were not equipped to properly deal with cases of sexual violence, and so tried to avoid them. He said, “The number of police persons is very low, and 99 percent are not well trained. If a girl is raped, most of them don't know how to handle the case.”[66]

According to Suman Nalwa, there are several reasons why the police operate differently in major cities and elsewhere. In big urban areas, she said, people are generally more aware of their rights and there is likely to be a stronger media and civil society than in remote rural areas. She told Human Rights Watch,

With the Delhi Police there are more checks and balances than you will find in some states or districts. In those places we need a much stronger supervisory mechanism. The role of the supervising officer is so important, but what is he going to do if he is part of the problem himself?[67]

Case of Mandeep

The case of Mandeep illustrates how police failures can have catastrophic consequences.

When Mandeep, 15, was hospitalized with burn injuries from a suicide attempt at her home, in Uttar Pradesh, she explained to medical workers that she took this step after a 35-year-old neighbor forced her to have oral sex with him on June 12, 2011. She died a week later.

Her family told Human Rights Watch that two weeks earlier, she had successfully fought off her abuser, but when she went to a police station, officers there accused her of lying. The family took up the issue with the head of the village, but he advised them not to make a formal complaint and instead reach some sort of informal settlement.[68]

After she was attacked for the second time, Mandeep did not tell anyone in her family what had happened to her and the next day doused herself in kerosene and set herself alight. According to her uncle, she felt there was no one she could turn to:

She did not say what had happened to her out of shame. When she remembered that incident she was disturbed. She set herself on fire when everybody was out in the fields. She was burning for one hour.[69]

Mandeep’s family then took her to hospital, where she survived for eight days. During this time, a journalist videoed Mandeep naming the man who she said had attacked her and briefly describing what had happened. She said, “He caught me while I was returning from the field. He did it in my mouth and threatened to shoot my mother and father.”[70]

Her father said that doctors, policemen, and the other community members tried to dissuade him from pursuing the case, warning that the alleged perpetrator might attack them in retribution.[71] Despite this, he persisted and the alleged attacker was arrested. As of January 2013 the trial had not yet started.

Mandeep’s father told Human Rights Watch that his daughter should have received better support from both the community and the police:

Maybe her life would have been saved if on the first occasion the police had made an effort. But instead at every step they abused us, yelled at us, and even today people threaten us, say we’re going to get killed. If only the policemen had listened to her, her life would have been saved.[72]

Case of Krishna

Krishna says she was raped in June 2012, when she was 12 years old.[73] She said her attacker was a young man from a neighboring village in eastern Uttar Pradesh, who was from a politically influential family. When she went to report the case to police, she said they detained her for 12 days to get her to retract her complaint. She told Human Rights Watch:

When I got to the police station I was interrogated by the station chief. When I told him what had happened he said I must have agreed to go with him [her attacker]. The policeman then abused me and called me a “motherfucker” and other rude words. They refused to accept my side of the story.

I was kept in the police station and was locked up. The woman officer-in-charge insisted that I sleep in her bed. I had to sleep at her feet. They kept insisting that I change my statement otherwise they threatened that something would happen to me. My parents kept trying to see me but they did not allow them to talk to me because they thought my parents would tell me to speak the truth…. They kept me in jail for 12 days. They didn't let me meet my parents. When I think of that time I'm afraid.[74]

This intimidation did not work however, and when Krishna was taken to see a magistrate, she told him exactly what had happened to her. “I knew I had to tell the truth,” she said. She was released and an NGO is currently helping the family pursue the case.

Case of Neha

Neha says she was raped when she was 16 years old by two men from her village. She is from a low-caste, poor, rural family. She told Human Rights Watch that the police tried to bully her into not reporting what happened:

I went to relieve myself in the fields at about 7 p.m. The two men took me away to a place near a pond. Their faces were covered. They pushed and slapped me. They tore my clothes and they raped me. They said that if I told anyone what had happened to me they would kill my brother. They took me away on their motorbike. They held me for about one hour. When I saw that one of them was going to the toilet I decided to escape. They chased me but did not find me. I hid myself in a small room that I came across on the way home. I spent a long time there. I did not know what to do. I eventually got home by about 3 a.m.

The next day I went to police station with my mother. The police said, “When she came home, did you check if she was actually raped?” The man on duty told me that I had myself chosen to go with this man. He told me to shut my mouth and go back home. I was so angry that I wanted to hit him. Why was he doubting me?[75]

Neha and her mother were determined not to let the matter drop, so they approached an NGO, the People's Vigilance Committee on Human Rights (PVCHR), which is based in nearby Varanasi. Along with PVCHR activist Mangala Prasad, they returned to the police station the next day.[76] But the police were unsympathetic. Neha told Human Rights Watch,

The police refused to register the complaint quickly. I didn't like how they behaved. Some of them told me that I must have wanted to go with those boys. They told me to admit I was their girlfriend. When I went for the check-up, the doctor said I had been beaten up, bitten, and scratched, but she said there was no internal injury. I started to feel helpless. Nobody believed me, and nobody believes me now. The villagers keep saying horrible things about me.[77]

The senior officer also threatened Prasad, the PVCHR activist who helped Neha make her complaint public. Prasad was then arrested on charges of “breaching the peace of the village,” which he believes was an attempt to silence him.[78] Later the police did arrest one of the men who allegedly attacked Neha, and he is currently out on bail.[79]

Case of Abida

Abida, 12, whose case is described above, says she was abducted and confined for several hours during which she was raped by three men in Varanasi in February 2012.[80] The family cleaned up Abida before taking her to the police. The doctor failed to confirm the rape and the police then allegedly beat up her father, Ahmed, and her brother, accusing them and the family of telling lies. Ahmed said,

My daughter went to her uncle's house after school to call on her aunt. While she was returning home one person put tape on her face and took her into a house where they were doing building work. She told me that that's where she was gang raped. They let her go late that night, at about 10 or 11 p.m. She had passed out and they left her outside. When she woke up she asked someone to help her find her uncle's house…. Her physical condition was very bad. She could not walk up the stairs and her clothes were covered in blood. At first we were confused and thought she was menstruating, so we decided to wash her clothes.

The following day I took her to the police station to make an FIR [First Information Report]. The police then took her to a government hospital for the medico-legal examination. That happened at about midnight. My daughter said that the doctor had only checked her clothes and looked for bruises and other injuries. The doctor also asked if she was menstruating…. The policemen then interrogated me and my daughter for about three hours. They said that the medico-legal report showed that there had been no rape. They said, “You are telling us lies. We know that you are fake.” The girl was continuously saying that no, she had been raped, and she was so afraid, but the police told us not to tell anyone. They told us to settle the case.[81]

The police were wrong to interrogate a child for three hours in an aggressive manner, and, in addition, Ahmed says he was beaten by the police:

The police then grabbed me and slapped me several times. Three or four men did this to me, including the station officer. They also beat my son, who is 18…. I'm very angry that this bad thing has happened. I am poor. I don't have much money to fight this case but I am looking for justice. Those perpetrators should be sent to jail. I have filed a Right to Information Case to get a copy of the medico-legal report. My daughter also gave a statement directly to the magistrate, and two of the [three] men were arrested.[82]

This case had still not gone to trial at this writing.

Traumatic Medical Examinations

Under Indian criminal law, the prosecution can secure a conviction for rape based solely on the testimony of the victim, so corroboration by forensic evidence is not mandatory. It is routine practice, however, for victims to be examined by a doctor. The findings are commonly known as medico-legal reports, and as in cases of Neha and Abida, described above, they can play an important part in whether or not the police and prosecutors believe a rape survivor’s account.[83]

Many doctors in India simply do not have the skills to perform such an important and sensitive role.[84] Many acts of child sexual abuse do not involve violence or penetrative sex, and victims often wash themselves after being assaulted. Doctors then report there is no evidence of rape.[85]

Also, doctors may be so focused on gathering evidence that they fail to consider that their role should also include treating and counseling the child. Additional deputy commissioner of the New Delhi Police, Suman Nalwa, who heads its special unit for women and children, recalled failing to persuade one nervous and reluctant woman to bring charges against her own husband for molesting their 11-year-old daughter because of their bad experience in a hospital. Nalwa said,

We told her that her name would be secret and the trial would be in camera [closed to the public], and we took them to the hospital for a medical examination. But their treatment in the hospital was so pathetic that she said, “You know, you promised me so many things and this is only the first step.” She just walked out and never came back.[86]

Insensitive medical examinations can also do a great deal of harm to children, says Dr. Shaibya Saldanha, a gynecologist who works with child sexual abuse survivors in Bengaluru:

 Unfortunately no doctor, whether a general practitioner or a gynecologist, or a pediatrician, has been given any training whatsoever regarding child abuse examination, interviewing, how to take care, what are rehabilitation procedures, the medical, and psychological needs of the child. They have no idea. It's not in our curriculum. So the result is the child is further traumatized.[87]

A regular part of the examination of female rape victims, including children, in India, is the “two-finger test” to check the size and state of her hymen and vagina for signs of sexual intercourse and violence. This is standard practice in many Indian hospitals, even though forensic experts say that the test has no scientific value[88] and a top-level government committee has called for it to be abolished because it “heighten[s] the trauma for victims of sexual abuse.”[89] Human Rights Watch believes that where such tests are carried out without informed consent, they constitute assault and are a form of inhuman and degrading treatment.[90]

Krishna, who said she was detained by the police for 12 days after alleging being raped, had to undergo this examination:

The doctor asked me to lie down on a table and remove my clothes. When she examined me she inserted a single finger inside me. It hurt and I was scared. I did not like what the doctor was doing to me. She then said something like, “Oh it was just a small rape, it's no big deal.”[91]

Case of a Three-year-old in Bengaluru

Sara, an Indian national, suspected her husband of raping and sodomizing their three-year-old daughter in June 2012, in their home in the southern city of Bengaluru. This case illustrates both poor behavior by medical examiners and police harassment of a complainant.

Based on her suspicions, Sara first took her child for an examination at a private hospital, which runs its own “child response unit,” where she said doctors found evidence of abuse, including traces of sperm. Following this, she then took the case to the police, attracting a huge amount of media interest. Her husband, who says he is innocent, was arrested.

The police insisted that the child be seen by doctors in a government hospital, who in contrast to the behavior of doctors at the private hospital failed to handle the case in a sensitive manner. Sara told Human Rights Watch that hospital authorities, instead of keeping her in a separate room, made the child wait for several hours in an adult labor ward. The sight of blood and women in pain was terrifying for the child. The doctor was also insensitive:

It was very difficult for my daughter. They pulled her legs back and she screamed. I was holding her head. It was very stressful. Even I was screaming. When they finally got the swabs they needed the doctor dropped them on the floor. She picked them up and just looked at them. “This is vaginal, this is anal,” she said. It was horrible. The doctor was very young. I don't think she knew much about rape. She kept asking if there was any bleeding, if she had a problem walking. For six to eight hours after the examination, my daughter did not urinate because it was hurting her so much after they pulled her legs back.[92]

Sara also complained about the behavior of the police, who she said had initially been supportive. Later, she was questioned by a group of six male and two female officers for more than four hours. They accused her of having many lovers and of only staying with her husband because of his well-paid and prestigious job. They told her she should have gone to a marriage counselor rather than report the case to them and criticized her for taking the child to the private hospital. They asked her to describe her own sexual experiences as a child and threatened to arrest her. She said:

I am now scared of the police. Everything you say can be used against you. I understand why so many women commit suicide. Here is a case of sodomy and rape. There is proof. But this is how they are dealing with it. It is scary.[93]

Sara’s husband is currently on bail, awaiting trial. He denied the accusations and has given a television interview saying he was framed.[94]

Case of Radha

Radha, 15, says that an improperly conducted medical examination in Varanasi after she was repeatedly raped in February and March 2012 is impeding her legal case.[95]

Radha told Human Rights Watch that her abuser was the owner of a brick kiln factory in Uttar Pradesh, where she was forced to work as his maid for two months. Radha, who is originally from a tribal community in Jharkhand state, is among India's vast population of trafficked children, who are especially vulnerable to sexual abuse.[96] She told Human Rights Watch:

I was with my family when a woman called Shanti visited us and told me to come with her. She was from the same village so I trusted her. She said she was going to take me to a fair. But this woman had tricked me and forced me to go to the brick kiln factory. There I had to work for the owner, doing his cooking and cleaning, and also massage him. Two days after I arrived he forced himself on me. He used to give me a tablet, then he would force himself on me. My room was next to where the owner worked and every time he wanted me, he would come to my room. He would come two or three times a day. I told that woman Shanti that I didn't like it, and she said that “If you tell anyone, the owner will kill you.” One day I opposed it, and the owner beat me up brutally. I was so scared. The brick kiln owner was in his sixties, had no teeth, used to drink a lot, and force me to drink alcohol as well. When I refused, he used to hit me. I'm still in pain from the rapes.[97]

After two months there, in March 2012, Radha was able to escape and eventually make it to Varanasi where she was assisted by the People's Vigilance Committee for Human Rights (PVCHR). They took her to the police and to a hospital, where a doctor carried out a medico-legal “two-finger test.”

On the basis of this degrading and unscientific test, the doctor stated that Radha had not been raped.[98] As a result, the police have refused to listen to her complaint and investigate the man she said had raped her repeatedly.

Radha, with the support of PVCHR, is challenging the doctor's findings. In September 2012 the police in her home district in Jharkhand agreed that Radha’s testimony could form the basis of a charge against her alleged assailant.[99]

The Courts

Victims of child sexual abuse and their families face the prospect of a judicial process that can drag on for years. Court proceedings in India generally are a long and trying ordeal. In child sexual abuse cases, where the burdens of testifying repeatedly and over long periods of time fall on already traumatized children as well as parents, the complainants end up feeling battered by the process, in some cases leading them to withdraw their complaints. Kajol Menon, former executive director of the Childline India Foundation, says the judicial process can be traumatic:

Convictions are rare and the court process is so terrible that most children and their families don't want it. By coming out in public, the children are sometimes seen by the rest of the community not as the victim but actually as the perpetrator, [whereas what] they really need [is] a sympathetic hearing.[100]

Special “child courts,” as envisaged by the new Protection of Children from Sexual

Offenses Act, should make a big difference. Maharukh Adenwalla, a high court lawyer in Mumbai who specializes in child rights, says that they will help create a specialized body of professionals who will understand the sensitivities of such cases:

This is most necessary as often the system, such as the police and judges, do not recognize that the person before it is a child and not an adult, and requires to be handled differently, and that the child’s evidence requires to be collected and weighed differently.[101]

Case of Nandini

Nandini was abducted from her home at the age of 11 in 1991, but the courts only delivered a verdict in the case in 2011. Five local men were accused of raping, sodomizing, and forcing her into oral sex.The court eventually found them guilty of abducting and molesting Nandini but acquitted them of the other charges because of the lack of evidence. They were each sentenced to five years in prison.[102]

That there was any trial and verdict at all was due to the perseverance of Nandini’s mother, Aarti, a middle-aged woman living in a slum in north Delhi. She says she woke up in the middle of one night in 1991, found her daughter missing, and ran out in search. Aarti says she came across Nandini close to their dwelling, surrounded by men. She said her daughter was “reeking of booze and naked.”[103]

Aarti told Human Rights Watch that she pursued her daughter's case because she thought it was the only way to stop the men attacking her daughter again. She struggled to get the police to take the complaint seriously and had to go to four different hospitals before one was prepared to fully examine her child. Doctors in a private and then a government hospital said they did not want to get involved in a criminal case, while those in the third, another government hospital, said they did not have any female staff available at the time to look at her.[104]

The police refused to file a case against Nandini’s assailants, so Aarti, in 1996, took it to the Delhi High Court.[105] Eventually, in 2002, it ruled in her favor, ordering the police to register a criminal case and directing India’s top police force, the Central Bureau of Investigation, to take on the case. Their investigation reached its conclusion in 2011 with the conviction and sentencing of the men, although only on the lesser charges. The judge said that one reason why they could not be convicted of rape was that “much of the medical evidence was lost on account of the delayed investigation.”[106]

The long legal ordeal had unfortunate consequences for Aarti's family. Because the trial took up so much of their time, their family income was affected. And because they were constantly afraid that the accused men might attack Nandini, one of their sons had to leave school to guard her. Aarti said:

It was very hard. It was a lot of trouble. We were very frightened about leaving my daughter alone. One time those men surrounded our house. They wanted to kill her. We always had to have one family member at home with her. I often had to be in court, my husband was out and my elder son was working, so my younger son had to stay with her. We had to pull him out of school in Class 9 [aged 14].[107]

Case of Amrita

After three years and 18 court appearances, Amrita still has no idea when her ordeal will be over.

In December 2009 the 14-year-old was admitted to a hospital in Bengaluru with 23 burns, bruises, and cuts to her body. She told doctors that the young couple that employed her as a maid used a rolling pin and a frying pan to beat her up.[108] She also accused the husband, who worked for an information technology company, of molesting her on many occasions. She alleged that every night he made her stand naked next to his desk, while he worked on his computer.[109] Amrita was moved to a residential care facility, and her employers were arrested on charges relating to the physical abuse.

According to Sheila Devaraj, who now looks after her, Amrita hates going to court because she does not want to be reminded of what happened. Devaraj said:

She says she doesn't want to go so many times to court because she does not want to relive her past. She's now growing into a young teenager and wants to be left alone. All this drags her back. It is totally distressing for her, mentally and emotionally. She is continually asked by her peers at school to explain what happened to her.[110]

As court cases drag on, victims like Amrita continue to suffer. Their lives are not only disrupted by the many court appearances, but the whole process of having their version of events repeatedly questioned can also be upsetting. The court environment can be intimidating, and Devaraj said that Amrita is scared of being in such close proximity to her alleged attackers.