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The Burden of Innocence Part I: Turning ‘Hostile’
Pic credit: The Conversation
The Burden of Innocence

The Burden of Innocence Part I: Turning ‘Hostile’

The POCSO Act is riddled with holes & more sexual predators get away than are punished

Jeff Joseph

Jeff Joseph

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted by the Government of India to provide an extremely strong legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. This, while safeguarding the interest of the child at every stage of the judicial process, by incorporating child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

With 472 million children below the age of eighteen as per the 2011 Census, India had the largest population of children in the world when POCSO was enacted. Yet, with a conviction rate of less than 30%, the POCSO Act is anything but effective.

This series looks at how in practice, POCSO is simply not child-friendly on many fronts. The ecosystem is skewed in favour of the accused who walk free seven out of ten times.

Child-Mother Valarmathi*

“That is the child.”

The officer pushes a photo towards the end of the table.

In the faded photo smeared with fingerprints are two children, a boy less than a year old, wearing a pink shirt with a white patch on the chest and matching pink trousers, crying; and a fifteen-year-old girl looking into the camera, smiling.

In the background, a white table fan with its front-mesh open faces the green metal cot on which a mattress covers half its width.

An almirah, half closed, shows a big smiling pink Santa Claus sticker stuck above the steel knob.

This is the world of Valarmathi, a fifteen-year-old girl whose life changed when high fever made her skip school and stay back home. For three consecutive days she missed her classes. Seven months later, her family was in for a shock.

Valarmathi told her mother of her bulging belly and the strange motions they had begun to have. Her mother, Meenamma, worried, called for the auto she regularly hired.

Nallamuthu*, the helpful auto driver took them to the hospital where results showed that Valarmathi was 7 months pregnant.

Directed to the station, on the way, Nallamuthu told Valarmathi to tell the police about “the boy she had had an affair with.” And Valarmathi would tell the police about “the boy.”

Nallamuthu a step-fatherly figure helped her mother Meenamma often. Her husband having abandoned them when young, Meenamma, a double graduate, did odd jobs to keep the household running.

Meenamma’s first born, a girl eighteen years old now, though good at studies had dropped out after school and worked in a shop.

It was one of those days when they had both gone to work that Valarmathi stayed back home alone, feeling unwell.

55-year-old Nallamuthu who came asking for her mother that day enquired about Valarmathi’s health.

Upon being told of the fever, he told her of a “secret technique” he knew of, which could cure all fever.

A year and a half later, as Valarmathi posed for the camera, in her hand is a child who will be eighteen when Valarmathi turns thirty-two.

When questioned by the police thoroughly, Valarmathi revealed all details about Nallamuthu and his “trick.” Nallamuthu of course denied all accusations.

Nallamuthu, with a weak build even convinced many officers that he was incapable of doing anything of the sort that Valarmathi had accused him of.

He would be sent to prison based on Valarmathi’s account as POCSO gives primacy to the victim’s statement.

Abortion was not an option as the foetus was at an advanced stage. The DNA tests could conclusively prove the crime. But it could be done only after the child was born.

Nallamuthu’s son, Raj, a young practicing advocate, moved bail which was granted in a few weeks’ time. A few months later, Valarmathi delivered the child and DNA tests were carried out.

A crime had been committed and the child was living proof. The child-mother had sworn by her account of how she had been tricked by the old man. She wanted him punished as did her family. It was an open and shut case. Except it wasn’t.

Turning ‘Hostile’

Valarmathi’s case would soon change from sure conviction to being on unsteady grounds. In court, Valarmathi changed her statement, refuting all that she had told the police earlier.

“Some money has been given, we don’t exactly know how much,” says the Inspector. “Rs 3 or 4 lakhs we have been told, we don’t know for sure,” she says.

The fight for conviction is particularly tiring as out of the near 40 POCSO cases registered, the station has not got conviction even in one case. Close to 12 cases have ended in acquittal.

“Media too doesn’t take up cases involving the poor or those without any sensational value,” says G Priya, a Clinical Psychologist at the Institute Of Child Health and Hospital for Children in Chennai. “Without the public expressing solidarity, the victim’s family lose the initial resolve and would give in to compromise.” Priya has been involved in counseling children who are victims of sexual abuse.

Norlene A, Project Manager with Indian Council for Child Welfare agrees. “All cases don’t get similar focus. In cases where the media and civil society puts pressure, justice is almost always delivered. High profile cases or those involving gruesome crime or involving prominent persons always have a better chance of getting justice thus,” she says.

Valarmathi’s case does not fall into any of the above categories and therefore has not caught the media’s attention.

As it stands today, the police officers fear Valarmathi’s case could end in acquittal. Their fears are not without reasons. There have been cases when the victim turning hostile resulted in acquittal, they say. But Valarmathi’s case, still awaiting a ruling is but symbolic of how POCSO works on the ground for the common child.

Valarmathi’s is not a rare case where the victim turned hostile in court. “One study by the National Law School of India University in Bangalore in 2013-2015 suggested that victims turned hostile in close to 70% cases,” says Kirthi Jayakumar a social entrepreneur and founder of Red Elephant, an NGO which works for sensitisation of children.

“Most perpetrators of abuse are known to the children - members of the family, or their parents' friends' circle, or people who live and work around them,” says Kirthi.

Known perpetrators are said to account for sexual abuse of children in 90% of the cases and naturally, familial pressures to compromise and put things to rest can be overpowering.

“In cases of incest crimes, the acquittal rates are very high. It is very easy to influence the victims in such cases,” says Sherin Bosko, Co-Founder & Social Worker at Nakshatra, a rape crisis centre based in Chennai. Money is not always the reason why victims change their stands in court.

“This is not because the cases are false or because the incidents didn't take place, necessarily, and it is important not to automatically consider all such cases as false,” Kirthi adds.

But victims turning hostile can change the course of a case very easily. One such case was that of Mayil.

(Mayil’s story will be continued in Part 2 of this series)

(*Names have been changed to protect identity)