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October 7, 2013
We write in advance of the Committee on the Rights of the Child’s pre-sessional working group on the periodic report of India. We hope our submission will inform your consideration of India’s compliance with the Convention on the Rights of the Child (CRC).
India has passed two major laws in recent years toward protection of child rights: the Right of Children to Free and Compulsory Education Act, 2009 and the Protection of Children from Sexual Offences Act, 2012.
The Right to Education Act promises universal access to eight years of education to every child across the country, based on principles of equity and non-discrimination. This is an important step toward universalizing elementary education in a country with only 74 percent literacy.
The Protection of Children from Sexual Offences Act is a major step forward in addressing sexual abuse of children, disturbingly common in homes, schools, and residential care facilities. The Act incorporates all forms of child sexual abuse as specific criminal offenses for the first time, establishes guidelines for the police and the courts to deal with victims sensitively, and provides for the creation of specialist child courts. Earlier shrouded in silence, there has been increased reporting and awareness on the issue in the last year. Numerous cases of child sexual abuse are now being tried under the new law.
All state governments are expected to establish independent commissions for the protection of child rights, which are also responsible for monitoring the implementation of the two recently enacted laws. In 2009, the central government launched an ambitious nationwide program, the Integrated Child Protection Scheme, to strengthen existing child protection measures, and create new ones, such as a network of district-level social workers. Once fully implemented, the scheme facilitates the creation of child welfare committees in every district, designed to oversee the care of vulnerable children.
However, significant challenges remain in addressing both universal elementary education and child sexual abuse in India. More than three years after the Right to Education Act came into force, retention of children in school remains a challenge, particularly when it comes to the country’s most vulnerable and marginalized populations such as Dalits, Adivasis (tribals), Muslims, and girls. The government’s lack of proper implementation and a failure to hold to account authorities responsible for monitoring and tracking these children has left millions of vulnerable children without basic education and at risk of child labor. In addition, many adolescent girls are compelled to drop out and forced into child marriage to protect them from sexual abuse.
Addressing child sexual abuse is a challenge all over the world, but as Human Rights Watch documented in its January 2013 report Breaking the Silence, in India shortcomings in both state and community responses add to the problem. The criminal justice system, from the time police receive a complaint until trials are completed, needs urgent reform. Poorly trained police often refuse to register complaints. Instead, they subject the victim to mistreatment and humiliation. If the victims are poor or belong to marginalized communities such as Dalits, they often face greater mistreatment at the hands of investigating authorities. They will also be subject to threats and intimidation from both police and abusers to withdraw their complaints. Victims lack protection during investigation and trial, and support provided to victims and families, is often inadequate. The government has also failed to generate effective oversight mechanisms and enforce key safeguards, leaving children vulnerable to abuse in orphanages and other institutions.
In India most cases of child sexual abuse go unreported due to fear of social stigma and lack of faith in government institutions. According to UNICEF, one in three rape victims in India is a child and more than 7,200 children, including infants are raped every year in the country.
The sexual abuse of children in residential care facilities for orphans and other at-risk children is a particularly serious problem. Inspection mechanisms are inadequate in most parts of the country. Many privately run facilities are not even registered. As a result, the government has neither a record of all the residential facilities operating in the country nor a list of the children they are housing. Abuse occurs even in supposedly well-run and respected institutions because of poor monitoring.
Failure of the Justice System
Many victims and the adults supporting them endure terrible experiences that add to their trauma. These can include intimidating interviews by police officers, degrading and painful medical examinations, and intimidation by perpetrators to drop charges. Court cases too can be unpleasant experiences for the child since they can last for years and involve unnecessarily stressful cross-examinations. This can deter people from coming forward and allow perpetrators to get away with their crimes unpunished.
Several state governments have now issued strict instructions to ensure that children be interviewed sensitively, medical examinations only conducted when necessary and with the consent of the child and their guardian, and special child-friendly courts established for prosecuting these cases. However, progress has been patchy, with a number of states still lagging in these initiatives.
The police have a crucial role in combating child sexual abuse because they are the first point of contact for anyone wishing to report a case, but they lack adequate training in handling cases of sexual violence. Police officers often refuse to file complaints and in numerous cases, encourage victims to retract their complaint under pressure from perpetrators. In order for sexually abused children to receive proper attention to their complaints, the Committee on the Rights of the Child should urge the Indian government to urgently embark upon reform to create a better trained and more accountable police force.
Medical Treatment and Examination
After law reforms in 2012 and 2013, victims of child sexual abuse have a right to seek medical treatment and the collection of medico-legal evidence to the extent that such evidence exists. The findings of the medico-legal examination are commonly known as medico-legal reports, and can play an important part in whether or not the police and prosecutors believe a victim’s account.
Many doctors in India simply do not have the skills to perform such an important and sensitive role.Many acts of child sexual abuse do not involve visible forms of violence or penetrative sex, and victims often wash themselves after being assaulted. Especially in the case of child sexual abuse, victims come forward to report days, months, or sometimes even years after the abuse making it difficult to gather medical evidence. Without noting these challenges, many doctors simply report there is no evidence of rape or child sexual abuse. Also, when doctors become focused on gathering evidence, they often fail to consider that their role also includes sensitively treating and counseling the child.
A regular part of the examination in many parts of India of female rape victims, including children, is the “two-finger test” to check the size and laxity of her hymen and vagina to determine whether penetrative sex has occurred, drawing conclusions about whether there was penetration or not depending on the number of fingers that passed. Especially in the case of older girls and adolescents who report rape, at times doctors conclude that she was “habituated to sex,” a degrading comment that alludes to the past sexual history of the victim.
In March 2013, Indian evidence law was amended to prohibit evidence of past sexual experience of victims in rape trials to discourage such arguments and the use of such observations by doctors during criminal trials. In April 2013 the Indian Supreme Court issued a judgment criticizing the two-finger test calling it a violation of a right to privacy and dignity. These positive and welcome changes are yet to to trickle down and take actual effect on the ground. As a result, the finger test remains a standard practice in many Indian hospitals, even though forensic experts say that the test has no scientific valueand a top-level government committee has called for it to be abolished because it “heighten[s] the trauma for victims of sexual abuse.” Human Rights Watch believes that where such tests are carried out without informed consent, they constitute assault and are a form of inhuman and degrading treatment.
A first step to eradicating this decades-long practice is the development of a uniform protocol for medical treatment and examination across India, which the Indian Health Ministry has taken as a serious concern. The Health Ministry has condemned these tests, recognized the need for uniform guidelines, and constituted a committee to develop a protocol for medical treatment and examination for sexual assault victims, including child sexual abuse. The committee’s work is still underway.
However, unless the Health Ministry simultaneously develops a concrete plan to ensure that such a protocol is adopted across India, the interventions of the ministry will have limited impact. In order for sexually abused children to have quality and dignified medical care across India, the Committee on the Rights of the Child should urge the Indian government to ensure these measures are adopted uniformly.
Court proceedings in India generally are a long and trying ordeal. In child sexual abuse cases, where the burdens of testifying repeatedly and over long periods of time fall on already traumatized children as well as parents, the complainants end up feeling battered by the process, in some cases leading them to withdraw their complaints. In an effort to address this, the Protection of Children from Sexual Offences Act recommends special child courts, but only a few states have implemented the directives.
Suggested Questions to the Government of India:
Recommendations to the Government of India:
On Effective Monitoring and Accountability
On Implementation and Raising Awareness
On Strengthening the Justice System