The death penalty for perpetrators in case of rape of girls below the age of 12 years, is going to neither be a deterrent against such offences nor will it address the more urgent need of prevention of sexual abuse of children, including rape. The decisions by the governments of Madhya Pradesh, Haryana and Rajasthan to give death penalty for the rape of children below 12 years of age is a distraction rooted neither in constitutional and legal prudence, nor in scientific evidence.
We believe that the death penalty is counter-productive and will entail more harm to child survivors and we, therefore, oppose it. We, however, appreciate the stand taken by the Central Government before the Supreme Court against death penalty for the rape of minors and hope that it will guide further decision making on the subject.
The culture of rape and sexual crimes needs to be addressed more holistically. To deter rapes, we require both swift investigation and conviction among other interventions. According to data published by the National Crime Record Bureau, the conviction rate under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was approximately 30 per cent in 2016. The trauma of abuse faced by child survivors continues in the absence of sensitive and competent systems to support the children, and aid family, community and society to help them heal and cope psycho-socially.
Justice vis-a-vis Retribution
Survivors must experience justice in real terms – condemning the culprits to death while presently a populist idea, cannot and should not substitute for sensitive and timely medical attention, child – sensitive and efficient legal procedure, witness/survivor protection, adequate financial compensation and quality rehabilitation assistance. Working closely with survivors of rape and sexual violence shows that the sense of justice derives strongly from effective implementation of the measures mentioned above. Harsher punishment is not the solution.
More than 90% of the perpetrators of child sexual assault and rape are known to their victims (NCRB 2016). Studies on the implementation of the POCSO Act also show that conviction rates are much lower in such cases. Child survivors often turn hostile due to family pressure, coercion, and family stigma. Introduction of the death penalty will invariably have the effect of silencing and further traumatizing child survivors who will be burdened with the guilt of sending someone they are related to or know well, to the gallows.
Instead, to keep children safe from violent crimes, the State should invest in the implementation of the provisions of the POCSO Act and the Juvenile Justice (Care and protection of children) Act, 2015 (JJ Act). The State must ensure adequate resources to develop the system: services, skilled and adequate human resources, and infrastructure, to be able to prevent child sexual abuse, detect signs of trauma in the child and provide psycho-social support to affected children.
Currently, the Integrated Child Protection Scheme (ICPS), the flagship scheme for the safety and protection of children, is the only funding source for the implementation of the POCSO and the JJ Acts. Further, while the ICPS is certainly well intentioned and could affect change, it currently has no specific funding or programmatic provisions for any of the support mechanisms ensured to child victims under the POCSO Act. ICPS has a budget of approximately Rs.1000 Crores for 2018-2019, not nearly enough for a nation with 380 million children, who need to be safe in order to grow and develop in a healthy manner. It is essential that funds are allocated effectively,and spent wisely so they do not remain symbolic measures, with which little is done. For instance, reports indicate that less than a tenth of the Nirbhaya fund has been utilized since it was instituted in 2014. Into the fourth year, little has been done to examine whether the fund has been effective in rehabilitating victims of sexual crimes.
In addition to these programmatic methods, there are systemic changes, which are needed to dismantle patriarchy and discrimination (sometimes in the name of ‘protection’) against women, children and other marginalized groups in society. Governments and individuals need to converge their efforts and meaningfully collaborate to ensure that all forms of sexual violence against children, including rape, are prevented.
Instead of a reactive measure like the death penalty which burden child survivors, states must bring education and awareness on safety and protection of children to families, communities, children schools, and other spaces meant to be safe for children, thereby creating an environment of trust and support around children and their families. Through the introduction of life skills curriculum in all schools, there is a need to equip children with the ability to comprehend sexuality, responsible and healthy sex practices decision making, and develop in them the ability to assert themselves against violence, speak up and seek help.
The trend towards more stringent laws and punishment post December 2012, has not made women any safer, and will not make children safe. It is a mere distraction which takes our attention away from real issues at hand. We urgently need real investments in prevention of violence, survivor-friendly response, services and legal systems, victim and witness protection schemes, counselling and rehabilitation services for survivors and their families.
We believe that long-term solutions and sustained efforts to prevent child sexual abuse and adequate investments in child protection are necessary to keep children safe and protected. The death penalty will not protect children.
((***The authors are part of the ProChild Coalition. Views expressed by them are personal.))