In Maharashtra, POCSO sees lowest conviction in speedy trials, victims' character often called into question

Mumbai: The conviction rate under the Protection of Children from Sexual Offences (POCSO) Act was the lowest for trials completed within a year of filing a charge sheet, a new study of 1,330 judgments across Maharashtra, has revealed. The conviction rate was 15.5 percent when the trial was concluded within a year of filing the charge sheet, rising to 22 percent for trials that took one to two years, 25.9 percent for trils concluded between two and three years and 18.7 percent when the trial took over three years. The study was undertaken over a period of four years by a team from the Centre for Child and the Law (CCL) at the National Law School of India University, Bengaluru, results of which were released on Friday. [caption id=“attachment_3040268” align=“alignleft” width=“380”] Representational image. AFP[/caption] Convictions were more frequent in trials that lasted longer simply because cross-examination of victims and witnesses who support the prosecution generally takes longer. When a victim turns hostile, it is likely judges dispensed with the need to further examine witnesses, according to the report. The Act requires that a trial is concluded as far as possible within a year of filing a charge sheet. Public commentary has tended to place great emphasis on speedy trials to ensure justice, especially in cases of sexual offences. “Just because a trial is held in a speedy manner, it doesn’t mean that justice is being done,” said Swagata Raha, a senior legal researcher who led the study. “We need to nuance what we say when we say we want speedy trials. What needs to be done faster is the recording of the victim’s testimony. We want the child to move on, to get support. And also, when the trial lasts longer, memories might fade. So that aspect should be taken care of speedily.” This is the fourth such state-wide study of POCSO judgments by the team at CCL. They had earlier looked at the functioning of the POCSO Act in Karnataka, Assam and Delhi. The Act was introduced in 2012 to specifically deal with crimes against minors. The researchers discovered other disturbing patterns in the course of their work. For instance, despite it being mandatory to protect the identity of a victim, this was not the case in 86.31 percent of the judgments studied. Of these, in 27.96 percent cases, the victim was named, whereas in the rest there were other identifying details such as parents’ names, school, address, etc were mentioned, compromising the victim’s anonymity. “If the child’s identity is revealed the purpose is lost,” said Raha. “It’s not just about the child’s name but any identifying information that should not be revealed. There could be effects of disclosure that a victim feels down the line.” Many of the other findings in Maharashtra were similar to what the researchers found in their previous studies such as victims turning hostile or having been known to the accused. The accused was known to the victim in 77 percent of the cases and was unknown in 11 percent (in the remainder, the profile of the accused was not specified). Overall, the conviction rate was 19 percent during the period studied, and the overall figure of victims who turned hostile was 47 percent. Further, there was the thorny problem of “romantic cases” or those in which the victim clamied she was in a relationship with the accused. Consent given by a person below the age of 18 does not count as consent, which further complicates such cases. Of the total cases analysed, a fifth fell into the category of “romantic cases”, with about 91 percent of such cases ending in acquittals. The study also found other alarming observations made by judges including cases of victim blaming. The law clearly states that a person’s character cannot be brought up during the trial. “Yet, there are judgments in which special courts have called into question the character of the victim and deemed her testimony unreliable based on it,” said the report. There were occasions on which the courts inferred from a victim’s lack of resistance or failure to shout that her testimony was unreliable. A victim’s post-assault behaviour was also brought up against her in some cases. “This can be tricky as people express themselves differently, and the external manifestation of the disturbing trauma that the victim has endured can be subjective,” said the report. “Such presumptions generalise human behavior, assuming there is a ‘natural conduct’ in any given situation, particularly in a traumatic situation like sexual assault.” Finally, the study found that despite cases which merited the application of aggravated sexual assault charges, these were not applied in more than half the cases. “The courts and police tend not to appreciate the aggravated nature of an offence and fail to apply the correct charge,” said Raha. “We felt this was a major thing — these authorities need to be sensitised and trained further.” Copies of the report were sent to the Bombay High Court as well as the state government last week. Recommendations made in the concluding chapter of the report included creating a cadre of volunteers for helping child victims, construction of waiting rooms for victims and families and inspection of child care institutions, among several others.