child rape and Pocso

CHILD RAPE: VICTIMIZATION AND INVESTIGATION

Submitted by :- P.M.Swapna 49/12 Supervised by:G.S.Bajpai

Pragya Jha 51/12

P.M.SWAPNA G.S.BAJPAI

PRAGYA JHA

National law UniversityDelhi (India)

2013

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the LL.B

(Hons.) Project Report entitled

Child rape : victimization and Investigation

submitted at National Law University, Delhi is an outcome of my work carried out under the supervision of

G.S.Bajpai I have duly acknowledged all the sources from which the ideas and extracts have been taken. The

project is free from any plagiarism issue.

(Signature of the Candidates)

P.M.Swapna

Pragya Jha

National Law University, Delhi

19 / 11/ 2013

INTRODUCTION

Child rape can happen in context and there is a rapid

increase of child rape cases in India, which stands first

in the world’s population of child. One prominent issue

is that most of the child rape cases go unreported in

India. Children can be raped in organized pedophile

rings, in making of child sexual abuse images and films,

or in one-on-one settings by a parent or other relative,

family friend, church leader, babysitter or in fewer

cases, strangers .It is a heart breaking truth that

children may be made available by their own parents for

rape by other adults. Offenders are usually male though

by no means exclusively and one study specifically about

child rape found that non related but known perpetrators

such as family friends, comprise the largest group of

offenders.

The effects and aftermath of rape are very disparaging.

Rape is especially stigmatizing in cultures with strong

customs with and taboos regarding sex and sexuality. For

example, a rape victim (especially one who was previously

a virgin) may be viewed by society as being "damaged."

Victims in these cultures may suffer isolation, be

disowned by friends and family, be prohibited from

marrying, and be divorced if already married, or even

killed. This phenomenon is known as

secondary victimization.1

Statement of Problem:

The present study relates to the issues that are related

to the victimization and along with it carries on with

the investigation procedure in case of Minor Rape. The

researcher aimed at knowing the investigation procedure

that is applied in such cases especially with respect to

psychology of the victim. What all are the measures that

are taken by the police in dealing with the sensitivity

of the victim and how the investigation goes about by the

police officers . In addition to that the researcher is

1 Wiederman, MW; Sansone, RA; Sansone, LA. (1998). "History of traumaand attempted suicide among women in a primary care setting". Violence and Victims 13 (1): 3–9

discussing Victimization as a concept, in order to look

into the after effects of such instances in the

psychology of these children as they grow up and

differently they behave to situations in comparison to

others of the same age group.

Objectives:

1. To study the investigation procedure in cases of

Child Rape.

2. To study the effectiveness of the recent POCSO Act,

2012 in the investigation procedure.

3. To study the difficulties that is faced in

Investigation of such cases.

4. To study the manner in which FIR is filed in the

police stations.

5. To study the efficiency and awareness of the police

officers at present.

6. To study the impact of such incident in life of the

victim.

Hypotheses:

1. The investigation procedure in Child Rape cases is

slightly different with respect to other Rape cases.

2. The POCSO Act,2012 is effective in both pre-trial

and the trial procedure by providing protection to

the victim and saving them from re-victimization.

3. In the investigation of such cases, the victim’s

testimony is of prominent importance, however due to

the age of the victim the process of investigation

in certain cases is affected.

4. Parents, relatives of the Victim, generally file the

F.I.R. in such cases and in certain cases the

informant is the Neighbor.

5. The police officers are aware of the rights and

duties prescribed especially for them under POCSO

Act, 2012.

6. The Victim is traumatized; in the longer run she is

quite affected. Though the Act aims at protecting

her at trail, pre trial stages, provides

compensation for her but nothing could be said about

the effect of counseling they would receive and to

what extent they would be able to live like others

in general course.

7. Police face lot of difficulties from the side of the

victim during the investigation majorly from the

victims families and even the evidences are tampered

at larger rate .

8. Clear abuse of power by the police during the course

of registering a FIR .

Research design:

In accordance with the objectives of the present study,

doctrinal and non-doctrinal research designs have been

adopted. The doctrinal design has been used to study the

Victimization aspect, as to what is the impact on the

victim. For the purpose of the same Reports released by

RAHI foundation with respect to Incest have been used.

The non-doctrinal method or empirical approach is the

prime highlight of this study. In this pursuit, a sample

survey has been carried out to collect the require data

by using some structured methods of data collection.

Sample and locale of study:

In order to attain certain objectives, the victim related

issues and the issues in the investigation of rape was

studied which includes the interviews of the police

officers of various cadres (i) inspector general of

police (ii) sub Inspector general of police (iii) Head

constable .(iv) Station house officer (v) Investigating

officer . The locale of study was the city of

Hyderabad , state of Andhra Pradesh and then the capital

city New Delhi specifically only Dwaraka area . The area

of coverage 6 police station in the city of Hyderabad and

one police station in Delhi dwaraka .

Tools for Data Collection:

The use of questionnaire has been done, in order to

collect information with respect to the investigation

procedure. In addition to it, informal discussions with

lawyers, prosecutors, police officials and judicial

officers were held to gain insight into various aspects

of the problem

SECTION I

VICTIMIZATION

Rape laws in India were not that developed however after

the criminal amendment of 2012, there have been various

changes that have been incorporated. There were no

separate laws for Rape victims who were below age of

eighteen. The Code of Criminal procedure only mentioned

that below eighteen years no consent can be given and any

sexual intercourse with or without consent can be

classified as rape. Prior to POCSO there were narrow

definitions of Rape and lack of the sensitivity of law to

the special vulnerability of adolescents in situation of

sexual violence have prevented many young victims from

obtaining or even seeking justice. In child rape cases

there is age based unequal power relationship that

exists. There are various factors that influence the

behavior of child; one of them is lack of communication.

Studies have shown that the parents face difficulties in

communicating with children in sexual matters and the

kind of reaction or action made or taken by the parents

in response to the reports of non-consensual sex suffered

by their daughters or sons. There are kinds of victims,

primary and secondary victim. The primary victims are the

ones who sufferers or the ones against whom the crime has

been committed. The secondary victims are those who are

in such in a relationship with the victim that by virtue

of the relationship they have with the victim they

undergo a trauma.

2.1Effects of Rape on the victim:

The effect of Rape on can be classified as Mental, social

and economical.

2.1.1 Mental:

The child psychology is completely different from that of

others. For half of the time one doesn’t know what is

wrong with them. Say, a child of five years won’t realize

that all the act of Rape is something that is inherently

bad or immoral. The mental response in such cases is

related to the age of the Child. The older the child is

the difficult does the thought process of the child

becomes. A 13 year old is more prone to getting into

stress and depression than a five year old. However there

are stages of victim’s response to sexual assault shock,

denial and integration. In the first stage the victim is

in phase of mental stress, fear. The second is the stage

of denial when the victim tends to put the entire rape

scene behind her and moves forward. The third is when the

victim finally accepts that has happened to her and

realizes that as misfortune.

Rape is followed by fear, stigmatization effect. She

thinks that she will be looked down if she reveals this

before people. However in child Rape the victim generally

speaks about the incident to the mother or a person who

is a closed one. There is a less sense of stigma that it

carries along. However because of the repeated talks

about the incident and other things reminding them of the

incident, they tend to withdraw from society, city,

neighborhood and retreatism. In the longer run, however

they are not able to forget the incident and it

influences them for a long term influencing their

behavior pattern and attitude towards others in general.

Reports from certain foundations working on Child rape

cases have shown that women who have been sexually abused

as child have never been able to trust men to a greater

extent and somehow have the feeling that every

relationship they built has a price attached to it. This

thinking was common to the victims of incest.

2.1.2 Social:

A victim of child rape has many people who stand with

her, support her however with growing age she becomes the

actual victim. She starts facing discrimination on many

social fronts say for example marriage. There is a very

little scope of her getting married to someone who is

already informed about the rape and the misfortune of the

lady as a child. There are rejections of marriage

proposal of such women who have been sexually abused when

they were small. This becomes traumatic for them. They

tend to visit their past again because of the attitude

that has been shown to them by society in general. The

stigma of the society comes into picture after several

years of the incident and there is a sense of

helplessness that tends to result in withdrawal. Even

after the marriage the inter personal relationship they

have is stressed.

2.1.3Economic:

Several expenses relating to medical expenses, counseling

expenses are required. There are cases in which the

victim is murdered after death in such cases the funeral

or burial is required. The family of the victim handles

the expenses of the case, as in the travelling expenses.

In addition to this if the family of the accused or the

accused himself stalks the victim, there are chances of

shifting the place of residence, which in itself

generates cost. The parent of the Minor has to look up

from time to time into the legal matters and also

restoring the peace of the minor, which needs time all of

this might affect the employment of the parents, which in

turn would lead to economic deterioration in terms of

income of the family. The effects of victimization hit

particularly hard on the poor, the young, the powerless,

the disabled, and the socially isolated.

2.2 POCSO Act, 20122

The POCSO Act was formulated to effectively address the

grave and inhuman crimes of sexual abuse and sexual

exploitation of children. The Protection of Children from

Sexual Offences Act, 2012 received the President’s assent

on 19th June 2012 and was notified in the Gazette of India

on 20th June 2012. The Act is due to come into force

shortly, along with the rules being framed under the Act.

The Act defines a child, as person below eighteen years

of age, the welfare and well being of child is the base

aspect of the Act. It aims to ensure social, emotional,

intellectual and a healthy intellectual of child. Sexual

abuse is defined in various forms including penetrative

and non-penetrative assault. It also includes

pornography, sexual harassment. All of the above is

termed as “Aggravated” when the offence is committed by

anyone in the position of trust like family member,2 http://pib.nic.in/newsite/efeatures.aspx?relid=86150; accessed laston 8th November,2013.

police, teacher or any other person under whom trust is

deposed. The Act also prescribes punishment for

trafficking of children with intention of sexual

purposes. Under this Act, abatement is also made

punishable. The punishment is of rigorous imprisonment

for life and fine. With consonance with International

Child Protection Standards, the reporting of such cases

is made necessary. A person having any information about

such a case , should mandatorily report about the same,

there exists a legal duty on such person. If a person

doesn’t report about the same he shall be awarded with

Imprisonment for a period of six months and fine. If any

false information is provided with respect of such case

in order to defame any person inclusive of the child

could be punished. The act also provides a model

framework in which the police officer is supposed to

behave on knowledge of such a case, say obtaining

emergency medical treatment, informing the Child Welfare

Committee within stipulated 24 hours period and so on.

The act is designed in such a way that the suitability of

victim is of prime concern, for example the medical

examination of the child is carried in a way to reduce

distress. Presence of parents is allowed, where the

victim is female, a doctor which us of same gender is

provided. Special Courts for trial are there. It is of

outmost important that later in life the victim is not

met with odd situations in future with respect to the

case, i.e Identity of the Victim is not disclosed.

Looking at the child psychology, at time of testifying

the presence of parents have been allowed. Video

conferencing for the child is also there.

There is compensation that is to be decided by these

Special Courts so that the child’s medical treatment and

rehabilitation is there.Further this act is gender

neutral in the sense that it covers both male and female

child. Along with it not only females but males too can

be charged under the act.The act assures that at time of

investigation and at the time of trial the victim is

treated in such a way that they are not re-victimized.

SECTION II

INVESTIGATION OF CHILD RAPE FROM POLICEPERSPECTIVE: EMPIRICAL RESEARCH

Any sexual conduct using a child i.e. a person below 18

years of age, exposure of such a person to sexual conduct

by another person with or without the consent of the

child for purposes for sexual gratification of self or

with the intention or knowledge that it is likely to

cause or lead to physical or psychological trauma and

exploitation of the child amounts to sexual abuse. Child

sexual or sexual assault is not just rape. Indeed rape is

just one form of child sexual abuse.3 When you say with

or without consent precisely means that during the course

of such action the child may or may not realize what is

going on, at times there are cases in which the child is

induced for corporate or participate in the act. India

has the dubious distinction of having the world’s largest

number of sexually abused children below 16 years raped

very 155th minute, a child below 10 every 13th hour.4 98%

of rape cases are committed within homes, families and

neighbors and even in police custody.

The role of police is very crucial in two areas in

recording of the First information report investigation

of rape cases and this research paper attempts to

understand these two roles practically and the

sensitization of police. In recent rape case of a minor

girl Noida Police revealed the identity of a minor girl

who was brutally gang-raped in a moving car. If that was

3 Status of children in India Inc, Enakshi Ganguly Thukral, p157.4 Asha Krishnskumar, Silent Victims Front Line, Volume 20-Issue 21, October 11-24,2003.

not enough, the Noida Superintendent of Police cast

aspersions on the girl’s character at a press conference.

Besides the fact that, by doing so, the police flagrantly

violated the law of the land — Section 228-A of the

Indian Penal Code defines the disclosure of the identity

of rape victims as an offence punishable by up to two

years of imprisonment — it also gave a peek into the

minds of the police and how they see the raped and the

rapist.5 During the research researcher has come a across

an inspector of police who has made a remark that the

victim initially went willing to the accused and such an

incident was certain to occur. Now this is stereotyping

of women and clearly shows the patriarchal dominance

still subsists. This remark is a sort of trend in most of

the police stations and there is a dire need of

sensitization and unprejudiced mindset of police.

Police station is supposed to be like any other office,

the victim and the family and any layman should be in

gallant to approach the police. During the field work

the researcher has observed that the informant in the

case has reported the police or gave an FIR after 1 or 2

days of the incident. Again this delay of reporting the

sole factor responsible is not the fear of approaching a

police official but also the reaction of the society as

observed majority of the cases this is a difficulty that

society’s reaction is dissenting. In R K Puram case under

5 http://www.tehelka.com/the-rapes-will-go-on/

perturbation the mother when on coming to know that her

daughter was raped tried to destroy the evidence by

bathing the child and washing the clothes of victim .

Police in this case investigation obtained circumstantial

evidences and by chain of events finally arrested the

accused and then she was ultimately was given a sentence

of five years.

There is a major abuse of power in police station in

terms of recording FIR . The evidentiary value of FIR is

greater than any other statement recorded by the police

during the course of the investigation. Section 154

requires FIR to be recorded in verbatim in the very

language of the informant, signed and has to read over.

Recording of FIR is not done in a fair manner according

to the report recorded by the researcher. There is abuse

of this power as it was observed there is major

proclivity prevailing, as an inspector general of police

has reported upon being interviewed that in order to

punish the accused and cause relief to the victim and

family the minor eloped cases are converted into rape

cases and then an FIR is filed. This shows a clear case

of abuse of power by the police. As the basis of trial,

charge is based on FIR. It is a point of reference to

revisit the original complaint to chain of events.

Medical examination is a climacteric. Most of the cases

this has a lot of weightage. according to analysis by

researcher it was inferred that major or most of the

police official give prime importance to medical

examination. On being asked about this there is a need to

record the victims clothes immediately after the incident

as at times Hospitals may vanish the evidence as it was

one in famous actress Pratyusha rape in AP and murder

case where the victims clothes were disposed of during

the medical examination and the DNA and vaginal went

mouth examination reports were negative. Not all the

police stations follow this rule.

Victim’s testimony is a germane. The new POCSO Act is not

completely victim oriented although it emphasizes more on

child psychology but there is a need for separate victim

based law in India. Most of the rape cases go unreported

in India, there is a need to reduce impunity that is

prevailing the most in the present scenario. Every police

station in Maharastra after D.K.Basu V State of west

Bengal but there is need for victim to know his or her

rights or his or her benefits. There is a serious lack of

victim centric approach to every crime. An Station house

officer on being asked says that at the time of reporting

to the police and FIR people actively support the victim

and his or her family later on when called as a witness

to court or to interrogate in police station they refuse

because this is a general impression a visit to police

station is a matter of a issue on prestige and societal

reaction. Victim’s testimony in child rape cases is taken

in consideration only at the age group of 12 years below

this age there is a serious question on reliability of

victim’s testimony. As one station house officer reported

that as a child might not know how to define organs, at

times oral sex happens the victim may not be able to

describe in such cases indications by the child is

recorded in writing. According to researcher the

weightage of victims testimony in court on rape cases is

still an unanswered question.

Another loophole is no presence of child psychologist

during the time of recording of sentence, there is a

counselor from an NGO but according to the researcher

this is not sufficient as the qualification of the

counselor from an NGO sufficient to understand the

child’s position. There mere presence of lady constable

might also not make the victim comfortable and there must

be a repeated phone counseling through phone or my a

physiologists also so that during the course of case the

child can open up about the incident and also provide

crucial information regarding the incident as a child may

not even understand about the incident as to what is

happening to her during the course. There is a dire need

of sex education in school and there is even a need for

gender education in Indian curriculum and this may help

to an extent to curb the problem of child rape.

The next comes the requirements according to police is

corporation from the victims family when there is an

incident like rape there is a major trend that the cases

are reported late after two days and in sector 9 police

station in Dwarka the head constable reported that there

are cases that have been recorder after a year on rape.

The second important element is the evidence at times

when rape happens in a public space there is more

reaction from public i.e. the neighbors around, the

prestige of the family, the future of girl child and

there is tampering of evidences by the victims family to

hinder the process of investigation. The third point is

mobile gynecologists should be available for quick

medical examination so that there is no tampering with

the evidence and fourth requirement is there should be a

crime team in every district and this team should consist

of police officer, lady constable, a member from NGO, a

gynecologist, an nurses this saves time and investigation

can be done efficiently and in fast manner. Relating to

the new POCSO Act that has been passed and there positive

response that almost all the police officers have a

knowledge about the provisions but in practice this must

be effective.

CONCLUSION

The offence of Rape is grave in itself, when it comes to

Child Rape it is one of the shameful treatment that could

be ever met to any kid. The age when the kids are

supposed to grow develop, learn to perceive the world in

a completely different way at that very age they learn

the very aspect of betrayal, distrust and all emotions of

hatred. Victimology is an important aspect of crime. We

often tend to ignore the entire concept of restorative

justice in our criminal justice system. There might be

provision for compensation under Sec. 357A of The Code of

Criminal procedure.

The victims of Child Rape as reported by RAHI Foundation,

a Delhi Based organization that documented an empirical

research on Rape Victims, which concluded that the trauma

that these victims go through is forever. They grow old

by not trusting people around. According to the statics

provided by them the Victims of Incest are more

traumatized, since the very protector becomes the

perprator. The psychology of these victims is molded in

such a way that they in most cases tend to ignore every

single emotion of trust towards any other male in their

life.

The Indian Government introduced POCSO, which is a victim

centric legislation and aims at providing support to the

victims of Child Abuse. It is very wide in all aspects.

The government is taking incentive to make criminal law

inclined victim centric by introducing such supplementary

legislations.

When there is a rape there is lot of trauma attached to

the family and the victim and she is not willing to give

a proper statement in the police station and there is a

delay in recording of statement of victim for F.I.R.

Police department faces lot of hindrances and

disturbances as there is lack of cooperation from the

victim and the family. So there is need of change in the

perception of people and then there are few cases there

is sheer abuse of power by police while filing an FIR

like as mentioned above in the project that minor elope

cases converted into rape. There is a dire need for

efficiency and transparency in the system and the police

must exercise their power impartially. There is an

imperative need for awareness among common people that

they have their rights and they can exercise them and a

layman can approach the police without any fear.

Futher there is a need for conducting a efficient

training sessions for the police officers as they need to

have knowledge about the new laws and changes in these

laws as the researcher observed through empirical study

that there is no proper awareness of laws among the

police officers as they are busy in other duties and

there is a dire need for trained police officers.

Findings and observations :

1. The investigation procedure in Child Rape cases is

slightly different with respect to other Rape cases.

2. The POCSO Act,2012 is effective in both pre-trial

and the trial procedure by providing protection to

the victim and saving them from re-victimization.

3. In the investigation of such cases, the victim’s

testimony is of prominent importance, however due to

the age of the victim the process of investigation

in certain cases is affected.

4. Parents, relatives of the Victim, generally file the

F.I.R. in such cases and in certain cases the

informant is the Neighbor.

5. The police officers are aware of the rights and

duties prescribed especially for them under POCSO

Act, 2012.

6. The Victim is traumatized; in the longer run she is

quite affected. Though the Act aims at protecting

her at trail, pre trial stages, provides

compensation for her but nothing could be said about

the effect of counseling they would receive and to

what extent they would be able to live like others

in general course.

7. Police face lot of difficulties from the side of the

victim during the investigation majorly from the

victims families and even the evidences are tampered

at larger rate .

8. Clear abuse of power by the police during the course

of registering a FIR .