The amendments to POSCO Act by
introducing death penalty as a possible punishment for the rape of a girl below
12 years is a perfect example of lawmaking that is as thick on rhetoric as it
is on empirical evidence. Reactionary reforms are often the easier ways adopted
by any government, when it wants to perpetrate an image that they really care
about protection of citizens. Though child sexual violence is one of the
relatively better documented areas in criminal justice, it appears that little
of that research is reflected in the imagination and passing of these
amendments.
The argument is attractive
because it appeals to our intuition that fear of the harshest punishment will
prevent individuals from committing child rape. But social, economic, cultural,
psychological and other factors in each of our lives interact in far more
complex ways than just that simple equation. Also, multiple studies on the
working of special courts under the POCSO Act conducted by National Law School
of India University, Bengaluru (https://www.nls.ac.in/ccl/POSCOAP2017study.pdf;
https://www.nls.ac.in/ccl/jjdocuments/POSCOMaharashtrastudy.pdf;)shows
that it is not with the quantum of punishment, but with the enforcement of the
existing law that real problem lies.
The conviction rate in the cases
registered under POSCO ranged only from 11-20% whereas the acquittal rate stood
at a staggering 80-89%. The accused was acquitted in 97.26% in which the
testimony of the victim was found to be unreliable. The reasons to reject the
testimony of the victim were discrepancies in the testimony, absence of
corroborative evidence, and, in some cases, unfounded assumptions about the
reaction of the victim or the character of the accused. In several cases, the
victim could not testify because she was of tender years, or had died, or for
other reasons, had not been examined by the prosecution. In such cases, when
the other prosecution witnesses turned hostile, the accused was acquitted. Also
many cases resulted in acquittals as the age of the victim was not established
to the satisfaction of the court.
The most common ground for
conviction was the cogent testimony of the victim. Of the 46 cases in which the
testimony of the victim was considered reliable, 44 cases resulted in
conviction, at a rate of 95.65%. It was also found that the timelines for
completion of the investigation, for recording of evidence, and for completion
of trial are never adhered to because functionaries in the system (police,
prosecutors and judges) find them impractical given their case load and the
facilities they have to work with. In fact, these timelines were found to have
been adhered to only in cases where the accused was acquitted because the
victim and other witnesses turned hostile. The rate of conviction was highest
in cases which took over two years to complete, because, practically, that is
the time it takes to record the evidence of all the witnesses, analyse them and
arrive at a conclusion. In light of this, the fact that the Criminal Law
(Amendment) ordinance, 2018 reduces the time given to the police to file a
chargesheet, and to the court to decide appeals against sentencing, displays a
complete lack of understanding about the issues on the ground and a disturbing
disregard for whether a law is implementable.
Along the same lines, the
ordinance has anchored its enhanced mandatory minimum sentences and death
penalty on age, without considering the issues that arise with age
determination. The reports of CCL-NLSIU have shown that given the
unavailability or unreliability of age-related documents in most parts of the
country, reliance is placed on ossification tests to prove the age of the
victim in cases under the POCSO. Since an ossification test cannot pinpoint an
exact age, and operates with a margin of plus/minus two years, a majority of
judges add two years to the upper age limit to conclude that the victim is not
a minor. For instance, if the ossification test states that the victim was
14-16 years old, judges ordinarily add 2 years to 16, and conclude that the
victim was 18 years old at the time of the incident, and therefore acquit the
accused. The same issue is likely to arise when considering whether the victim
was below the age of 16 or 12, especially if the judge does not believe the
enhanced sentence (or the death penalty) is warranted.
But most importantly, the
introduction of the death penalty for the rape of children under the age of 12
is likely to put future victims at grave risk. Since the punishment for rape
and the punishment for murder are now the same, a rapist will have no incentive
to spare his victim’s life, especially since her testimony would be the most important
piece of evidence against him. Even the judiciary can’t be blamed for all these
situations, because it is trying its best with the scarce resources at its
disposal.
Even the common people of the
country seem to have similar opinions. When asked for solution to prevent the
rape cases from happening, Priya states that “It has to come from individual. Fear of law is good but it wouldn't
help because people think it's easy to escape from it, as there have always
been ways for it.” She goes on to
state that the main reason for so many rape cases happening is due to lack of
proper sex education “People should stop
looking at as a taboo, and be open towards it.” When questioned about the factors that are
leading to rapes, Bindu states that the root of the problem lies in the way
the society is upbringing the children. “There
is no interaction among the young girls and boys in the rural society. Leave
alone forming friendships, even something as simple as talking with the person
of other gender is a taboo. This is what is preventing the male from
understanding their female counterparts. May be if they have atleast one good
friend of the opposite gender, they can understand the other gender much
better.” When questioned about the effectiveness of death penalty, Ms.
Ramya says that “Death is an easier way
out for these horrendous criminals, the crimes they committed must be punished
with something much worse than Death. They must learn the pain, embarrassment
and agony felt by the victim. Its only then it can be called as serving
justice.”
In conclusion, it is not just making
the punishment rigorous, but making sure that every culprit is punished is what
going to make sure that these crimes are prevented. Its only when these culprits
fear that they can’t get away with their wrongdoings, the safety and peace will
prevail.
Special thanks to all the people who shared their views with me.
Image Source: https://www.change.org/p/bill-de-blasio-students-demand-sexual-education-rape-prevention
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