#MeToo Beyond SM: How to Lawyer up to Challenge Child Sex Abuse
#MeToo: Here’s what a child sex abuse survivor needs to do to legally challenge their harasser.
While the public attention on the #MeToo wave impacting top schools in Chennai seems to have waned, social media websites are still flooded with horrific accounts of sexual harassment faced by survivors when they were between six and 15 years of age.
On Wednesday, Tamil Nadu Chief Minister MK Stalin ordered a helpline to be set up for students to report misconduct in online classes. The Quint spoke to legal experts to understand the process by which a complaint against child sex abuse can be reported years after the incident. We also charted out the path by which such a complaint can be taken to court.
Here’s a look at the intricate legal process.
Gather Witnesses & Then Complain
The Quint spoke to lawyers in Tamil Nadu who said that the first step in building a case against sexual harassment should be to collate similar complaints against the same accused.
“If there are a number of witnesses levelling allegations against one perpetrator, then it will be difficult to discredit all of them.”Shreya Kallingal, Advocate
The survivors could either seek a criminal remedy or a civil one. They could also demand compensation.
How Schools Can Help
Legal experts told The Quint that schools are legally bound to report cases of abuse to the police.
“If a murder takes place within the school, will the management keep quiet? They can’t bury the evidence. They are bound to go to the police. So, if they receive a complaint about a cognizable offence, they are duty and law bound to report to the authorities. If they hush it up, they are considered as an accessory to the crime.”Saravanan, Advocate
The survivors could send individual mails or complaint letters to the school management before taking the legal route, lawyers explained.
“The knee jerk reaction by the school would be to fire the teachers. And yes, to some extent it will put the current students out of trouble but that doesn’t serve justice to other survivors. If the survivors want the perpetrator to be prevented from teaching in the future, they will have to file a complaint and wait for the FIR to be registered,” said Kallingal.
Legal experts also pointed out that the survivor need not employ a lawyer to defend their allegations. “The survivor has to go to the police station once to file a complaint and get the First Information Report (FIR) registered. They will later have to give a formal statement in front of the magistrate. They will then be called to the court for the hearing and a public prosecutor will be assigned to argue the case,” she said.
Expand the Scope of POCSO?
Provisions in the Criminal Procedure Code (CrPC) prohibit the judicial magistrate from taking cognisance of cases beyond a specific time period.
The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 and is gender neutral – persons of all genders can be protected from sexual harassment under the act. The Act defines different forms of sexual abuse, including penetrative and non-penetrative assault,. It also defines sexual harassment, pornography and abuse committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
The Act prescribes a maximum term of rigorous imprisonment for life and fine.
However, cases involving child sexual abuse not amounting to rape that took place prior to the enactment of POCSO would be classified under the, lesser and somewhat frivolous offence, of outraging the modesty of a woman which falls under section 354 of the IPC. Reporting of an offence that falls under section 354, more than three years after the date of the incident, is barred by the CrPC.
“These are incidents where there are no witnesses. In most cases, it is only the survivor and the perpetrator who were in the scene; so the authenticity of the argument is questionable. And this could also pave way to false accusations,” he added.
Advocate Saravanan explained that this is not going to be an easy battle as, “A delayed complaint will be looked at with suspicion. Legally, there is no bar, but the veracity of the allegation will be affected.”
Another legislation that can be invoked is the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 that states that anyone who harasses a woman within the precincts of an educational institution or other public spaces, shall be punished with imprisonment for a term which may extend to three years and fine.
Saravanan added that alumni’s complaints can be strengthened if even current students of the school level similar allegations.
Threat of Defamation
It has been observed that women who speak out in #MeToo movements are harassed with defamation suits. Former External Affairs Minister MJ Akbar had filed a criminal defamation suit against journalist Priya Ramani for accusing him of sexual abuse. Bollywood actor Alok Nath had filed a defamation suit against writer-producer Vinta Nanda.
In Chennai too, several students told The Quint that they have been receiving threats on social media. Staff members of schools, other alumni members and even school managements have threated to take them to court.
“It is better to have sent a complaint to the school before filing a complaint with the police, so that the school cannot call the claim baseless. And please don’t be quiet because there is a possibility of defamation.”Shreya Kallingal, Advocate
Need for Child Protection Policy in Schools
Tamil Nadu Chief Minister MK Stalin on 26 May, instructed all schools and colleges to record and review online classes with the aid of two representatives from the Parents and Teachers Association (PTA). Stalin also said that an expert committee should formulate guidelines for the orderly conduct of online classes.
Cyber police have also been directed to take swift action whenever such complaints surface.
But what are the guidelines that govern the schools?
In 2018, schools were asked to follow comprehensive guidelines issued by the National Commission for Protection of the Rights of Children (NCPCR), which calls for setting up of a grievance committee for child sexual abuse in all schools.
The ‘Handbook on Implementation of POCSO Act, 2012, for School Management and Staff’ prescribed by the National Institute of Public Cooperation and Child Development (NIPCCD) states that committees should comprise students, parents and management representatives.
Legal experts said that the School Education Department needs to evolve a child protection policy that should be mandatorily implemented in all schools to ensure quick redressal of complaints. The identity of complainants should be safeguarded even as serial abusers are kept track of.
“There should to be awareness campaigns which teach children about abuse. So far, only a few schools are doing this voluntarily,” Saravanan opined.
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