On 8 February, 2017 a lady judge of the Bombay High Court granted bail to a man facing charges of raping his minor daughter.
The judge raised doubts about the reliability of the girl’s complaint and relied upon incriminatory details contained in the charge sheet to justify the bail under the Protection of Children from Sexual Offences (POCSO) Act.
“The statement of the victim on the basis of which the crime is registered does not appear to be truthful and, therefore, does not inspire confidence of this court,” she ruled.
The judge went on to state that the girl had inherently abnormal behaviour and sexual instincts from her childhood.
The judge relied upon a letter the child was made to write at the age of 6 while she was in the adoption agency. The remarks of the judge seem to imply that the child “asked for it”, or worse still, that she was a “liar” and thus could absolve the father of criminal liability.
The law forbids defence lawyers from commenting upon a victim’s past sexual history but here the lady judge does not feel the need to abide.
The facts of this case are tragic. When the girl was just 6-years-old, her mother died of AIDS. She was later adopted and the abuse by her adoptive father started soon thereafter.
The threats, acute vulnerability and lack of support ensured that the girl suffered the abuse for eight long years. It was only when the frequency of the assault increased that she called Childline for help.
What to do After a Child Sexual Abuse Incident is Reported?
As part of our survivor support programme of Majlis, we got in touch with the girl soon after the case was registered. It has been a long and difficult journey for this young girl to reintegrate and she is pursuing her higher education against great odds. The legal procedure was also followed up diligently to ensure that the chargesheet was filed on time and the bail was rejected.
Its shocking how the judge, a lady at that, did not stop to consider the impact of such comments on the vulnerable child.
No efforts were made to determine the wellbeing, safety, security of the child which is essential at the time of granting bail, especially when the accused is her father.
The judge was not even aware that the victim was no longer in the shelter home and had moved to another home.
It is believed that lady judges are inherently sensitive towards rape victims but we have realised that gender sensitivity is not linked to female anatomy.
Re-thinking POCSO
It’s been almost five years since the enactment of the POCSO Act and with all its best intentions the reality on the ground tells us we have a very long way to go.
The National Consultation on the Protection of Children from Sexual Offences Act, 2012, held on 4 and 5 February 2017, is a step in the right direction. Getting everyone to sit together and deliberate on what needs to be done is the only way we can find solutions to help our most vulnerable.
(The author is Programme Director of Majlis Legal Centre. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(This piece is published as a part of the biggest nationwide consultation on the Protection of Children from Sexual Offences Act 2012.)
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