#VICTIMASSISTANCE -KEYNOTE ADRESS AT THE 7th INTERNATIONAL CONFERENCE ON VICTIM ASSISTANCE 26 OCTOBER 2018 O.P. JINDAL GLOBAL UNIVERSITY SONIPAT

Good Morning

Professor Raj Kumar; Professor Sahni; Mr. Chaman Lal; my friend Professor Murthy everyone else present here.

I feel honoured and privileged that I have been asked deliver the key note address at the 7th International Conference on Victim Assistance. For all of you who do not know me, I am neither a lawyer nor a legal expert nor an expert in victimology. I am, what would best be described as a rabble rouser and a contrarian- in more dignified terms a Human Rights Activist. I have spent over three decades critiquing the ‘system’ –whatever it may be and trying to help the voiceless in it, find their voice and entitlement. Perhaps it is in this context that I find myself here today because despite a justice system that may deliver a judgement, it is often not able to restore a sense of justice to the victim. But is that not what a justice system must strive to do?

Shrill demands for more and more punitive punishments-including death penalty that many seem to think of as solutions, does nothing for the victims. It only balms the public sentiment momentarily.

Although, this morning I shall concentrate on protection and assistance for victims of sexual violence, I want to acknowledge that victimhood is not for those facing sexual violence alone. There are several people who are victimised –including in the name of development. How can we forget those thousands of people who are victims of forced evictions- people whose lands and livelihood are taken away for ‘national or greater good of the country? or those who are victims of riots and mob violence? caste, gender or other forms of discrimination and violence? or simply robbery and such other crimes? They are all people who need assistance and perhaps even protection. But I will leave them for another day. Today I will concentrate on those who have survived sexual violence.

To negotiate the long, winding and complicated journey towards justice a victim requires not just assistance – they need support and sometimes handholding. Why just the victim- the whole family needs it. To explain what I mean, I will draw upon my limited experience of working with child victims of sexual abuse and exploitation at HAQ: Centre for Child Rights. These are the victims and their families I have seen the closest and have learnt from. They have taught me when to step in, and when to step out, what is needed and what never works.

Mental health is one of the most important interventions needed- support for which is sadly lacking. According to the Union ministry of health and family welfare, the country needs 11,500 psychiatrists but has just 3,500. The entire mental health workforce, comprising clinical psychiatrists, psychologists, psychiatric social workers and psychiatric nurses stands at 7,000, while the actual requirement is 54,750.

My travels and interactions with people like us who work with victims tells me that with minor differences, the experiences across countries are similar and that victims require similar kinds of support and handholding.

We all know that victims who receive appropriate and adequate care and support are more likely to be able to participate in the criminal justice proceedings in bringing perpetrators of crime to justice. However, inadequacies of criminal justice systems may mean that victims are not able to access the services they need and may even be re-victimized by the criminal justice system itself. That is why they need special support. They also need support to live a normal life when all the judicial proceedings etc. are over. That is why international law has recognised the importance of victim assistance and protection. Countries across the world have developed mechanisms for this.

The first time we rescued a girl who was trafficked, it was all new for us. She was our first lesson. She was the one who remained with us for a long time. We supported her through the case, her school and college education and her job. We thought we were doing the right thing by her only to realise that if we did not pull out, she would become dependent on us for ever and we would disable her rather than empowering her. That was our first lesson in what, when and how much support or assistance a victim needs? When to step in and when to step out.

An eleven- year- old girl- lets call her Priya—lived with her widowed mother and two sisters in a colony in Delhi. Following her father’s death, the family moved in with her paternal uncle. With no source of income, the family survived on the father’s pension. A 50-year-old washerman, their neighbour, sexually assaulted the child. Instead of reporting to the police, her uncle beat up Priya and her older sister. Her mother filed a report against the accused and moved into her own house with her children. By then Priya was already traumatised into silence and her statement could not be recorded. She refused to go to school or engage in household chores and interacted very little.

India now has a law –Protection of Children from Sexual Offences Act- popularly called the POCSO Act, which has provisions for appointing a support person –recognising that children and their families need support. This is huge recognition of the kind of needs victims may have.

So, in Priya’s case, when we were appointed as the support person by the Child Welfare Committee (CWC), it took numerous counselling sessions to help her narrate the sequence of events. Five months of continuous rapport building, counselling and sustained support helped the family gain confidence and stand for themselves. Priya had to undergo psychiatric treatment. The family needed to be supported to rally around Priya.

Subsequently, Priya was granted an interim compensation by the court with our support, that helped to pay for the  expenses of her  treatment.

Sexual abuse of children remains shrouded in shame, guilt, family honour and hence is seldom reported. Because of the history of “justice delayed being justice denied” families have very little faith in the legal system.

For children, it is even more difficult to speak out and share as very few have the ‘vocabulary’ to describe what has happened to them. Besides shame, fear remains a major factor. More often than not the abuser is a known person, whom the child trusts and even loves.

The normalisation of abuse in society has become so endemic that it is only when the abuse is perceived to be gruesome and serious, involving penetration or bodily touch, that both children and families pay attention and speak up or report. This is unfortunately true of not just families, but also caregivers, police and other authorities. In fact, this true of society at large.

Our experience has shown that being a taboo, families of victims of sexual abuse try not to pursue a legal case to avoid further shame and humiliation. Those belonging to the lower socio-economic strata of society also find it difficult to access the justice system – right from approaching the police, filing a complaint with the police, getting legal support, pursuing the case for years, helping children deal with the trauma and rehabilitating them.

There are several other issues that crop up:

  • Parents refuse to allow the child to move out of the house, to access education, or even play in the neighbourhood because of stigma. Restrictions are enforced and childhood is lost in this process.
  • Landlords ask children and their families to vacate their homes.
  • Schools do not want abused children, shame them and subtly force them to leave.
  • Parents lose employment pursuing court cases or supporting their children.
  • Children feel unsafe even within their own families and find it difficult to confide when the abuser is an insider- especially if it’s the child’s father, brother or uncle. In 89% of of the cases that HAQ handled, the accused was someone that the child knew and therefore trusted. When 18.6 % of the known offenders are ‘related’ to the child by blood/ adoption/marriage, and is thus a case of incest, whom does the child turn to?

The nature of support is assessed and determined by:

 Who is the victim?- gender, age, medical condition, socio-economic status and who the abuser is. This is what determines What is the support needed?

In the case of an inter-sex victim, even getting a shelter home to receive the child was a challenge. It was so unfortunate that only a bunch of eunuchs were the ones most ready to take in the child. Girls homes said they cant receive the child since it was not a girl and the boys homes because it was not a boy!

When three-year-old Nargis came to us- what she needed most was medical support for a colostomy surgery and till then money for pouches into which she could pass urine and stool. Subsequently, she had to be assisted with admission into school and continuing medical treatment. Her father has mental health issues and so the mother needed to be supported to negotiate the justice system as well as find a way to support the family.

16 year old Santoshi was already pregnant. She had been raped by her own brother, so could not be kept at home. The family was hostile and blamed her for complaining. Unfortunately, the shelter home that she was placed in did not believe in abortions ….that too is sometimes a challenge victims face-the religious beliefs of those who run shelter homes…  And so by the time support could be organised, Santoshi was over 4 months pregnant. She needed medical support through her pregnancy and her delivery. Post her delivery she needed shelter and help to look after the baby. Now she needs to be supported to re-build her life with the baby.

15 year  old Kunal was sodomised by four of his school mates. He became withdrawn and depressed, refused to go out of the house to play or attend school. He was taunted by his teachers in school as well as his school mates. His abusers threatened him. All in all, his life was wretched. When we first saw him, he barely talked. He scratched his face till it bled and he had zero self- esteem. His mother had had to give up work when she saw her son needed her support as he developed mental health issues, affecting the family income and his father was a bundle of nerves. The amount of support that male victims need is still unrecognised and unacknowledged.

Kunal had to be supported with mental health interventions, change of school and family counselling.

Loss of income for the family following an incident of abuse is a common thread requiring immediate assistance.

Children with disabilities face double jeopardy – they are even less able to protect themselves and often even unable to explain what has happened to them. They are also the most forgotten when laws and policies are formulated and infrastructure is created. Special educators, interpreters and infrastructures remain mostly unavailable in our country despite provision in law.

Financial needs includes addressing both immediate and long term need for financial support that may be required by the child and her family. For example, in a case of incest, if the accused is the main or only earning member and sent to jail, the family needs immediate means of sustenance. HAQ supported one such mother by getting her enrolled for a short-term certificate in stitching and tailoring recognised by the government so that she could start a business of her own from her house itself. The stigma that the family of the offender lives with for being related to the rapist is the additional burden that the victims of incest abuse have to bear. Its equally bad for the children of other rape offenders as well. The stigma is huge and they find themselves victimised by association to the offender.

Luckily in India, we now have provision for victim compensation that is very useful. This compensation can be awarded as interim compensation based prima-facie facts of the case and as final victim compensation. But the victims and their families often need support to negotiate the bureaucratic and legal system to be able to get the compensation.

Till Kunal came into our lives, we did not realise that male victims were not entitled to compensation. It took an appeal in the high court to ensure this.

The victims who need support the most are victims of incest abuse. Incest sexual abuse, even by the biological father, cuts across class – HAQ has addressed cases from slums as well as high end gated apartment blocks. In both cases, the mothers convinced the girls to withdraw from the legal proceedings for the ‘larger good of the family’.

Indeed, the tragedy of incest cases based on HAQ’s experience over the years  shows that inaction and lack of support from the mothers is the reason why cases fail to go forward in the justice system.

The legal provision of mandatory reporting does not necessarily help in such cases as even children do not want their father or brother or grandfather to go to jail. What they want is an assurance that the abuse will not happen again or they simply want the abuser to leave the house and go away.

It certainly leaves us with the question as to whether mandatory should necessarily mean recourse to legal action or could it also mean relief other than legal action. The other related question is whether restorative justice practices can be adopted in such cases of incest sexual abuse where legal action is taken and is India ready for it?  This too would need victim assistance and support.

What can be said with certainty at this stage is that if a mother takes the plunge, she must be supported financially to not only sustain the legal battle, but most importantly sustain her family! She needs to be supported and her hand held tight and strong. Linking up such women and their families to government schemes and programmes could go a long way, provided such linking does not label them as victims.

The victim is also a witness. Witness protection is yet another important support needed. We have seen the value of witness protection in Delhi. A Vulnerable Witness Deposition Complex is now established in 4 out of the 6 District Court Complexes, catering to 13 out of the 16 Special Courts in Delhi. We have experienced how these have made it easier for the victims to testify in court. Child victims that HAQ supports have been able to give their statements and withstand the stress of cross examination because of the availability of Victim Protection facilities. Availability of transport facility to and from the court for those who need it is also a big help and the snacks served are enjoyed by children who have to wait long hours. Use of the physical anatomy chart helps smaller children testify without being required to describe body parts and other aspects of the offence as they do not have the language to do so or feel ashamed. Children and their families appreciate the separate entry to these facilities and the assurance that the child will not have to face the accused. Such facilities and measures are a great boon in cases of incest, where the worst fear of the child and her mother is that of meeting the accused in court.

Sensitivity among the key personnel can make all the difference. It was extremely heart-warming to see judges who find creative ways to record children’s testimony. In one case the judge included a drawing made by the child victim in his order and said:

“If the elements of this drawing are considered in the background of facts and circumstances of this case, then commission of sexual assault upon her by somebody in her house after undressing her and the said fact having left impression upon her mind becomes evident. Therefore, I find the child victim to be a competent witness.”

Indeed, sensitivity of the judges, their approach and attitude makes a lot of difference, irrespective of the court’s infrastructure. Even slightest gesture of sensitivity from the judge matters a lot to the child and goes a long way in making the child comfortable without compromising on due process and fair trial. This is an essential part of victim assistance or support.

The United Nations Guidelines on Justice in matters involving Child Victims and Witnesses of Crime 2005 too require use of tools that can aid the courts as much as children who have to testify.

This sensitivity is required from every stake holder in the system- the police, the probation officers, those who manage and run child care institutions, the social workers and counsellors, public prosecutors and all the support staff that form a part of these institutions.

Timing of the support is extremely important. Most victims need immediate assistance and support- medical or economic.  Government and judicial processes are often to slow for this. That’s where support organisations like HAQ can step in if needed.

But how much support and what kind of support? is equally important. Who decides what is needed? Sometimes in trying to be helpful we may land up doing more harm. So it’s important to keep the ear to the ground and keep checking if the nature of assistance we think is needed, is actually what the victim and the family needs and can sustain. Care must be taken that this does not lead to a sense of dependency on that support and assistance. The goal must be to empower them to lead their own lives as best as they can.

As I mentioned, there are several international and national laws and programmes across countries on this. But I will not discuss those. I am sure they will form part of the discussions during the conference.

Instead, I will take this opportunity to share with you a concept that we at HAQ have developed.

HAQ’s Experience of working with victims of child sexual abuse and exploitation has clearly revealed that justice cannot end with the order of the courts alone – especially if the lives of the child victim has to become at least the same as it was before, if not better.

Indeed, there are services that children need in their journey for access to justice to enable them to navigate it.  These services may include mental health and trauma counselling, educational, health interventions, family support, compensation and/or skill training for older children, all of which are necessary to enable the child to be restored into a life beyond their abuse and/or exploitation. This is what can be referred to as Restorative Care.

Traditionally, “restorative care” is a term used in the medical and health care system. It refers to follow-up care and rehabilitation of patients whose recovery takes a longer period. It uses a multi-disciplinary approach to bring such patients to their optimal functional level and restore them to their previous living arrangement.

Thus, it typically involves an inter-disciplinary team consisting of nursing, occupational therapy, physiotherapy, recreation, social work, and other healthcare professionals who work through a consultative process, based on a comprehensive assessment and restoration plan. The focus is on quality of life including medical, physical, social, spiritual, and psychological needs.

Although “restorative care” per se is not a term that figures in the existing literature on access to justice, its elements are visible in use of words like support services, relief measures, compensation etc.

Given that the goals and process of “restorative care” as used in the medical field are no different from those sought to be achieved for children who are victims of violence and abuse, HAQ strongly recommends incorporation of the term “restorative care” in policy, law and action and as distinct element of “access to justice”.

It is this restorative care philosophy that has driven HAQ’s interventions in addition to addressing the other barriers to children’s access to justice. The most critical component of “restorative care” process is case- work management. The case- worker is the support person, who is part of a larger process that needs to be systematic and organised in order to achieve the goals of “restorative care”.  The second component is a multi-disciplinary approach. And the third is long term handholding support to children and their families with a proper and planned exit strategy to ensure that there is no sense of dependency.

Having an adequate and appropriate support system requires investment in infrastructure and resources. Analysis of budgets across countries however shows that the lowest share of the budget is for child protection- not surprising therefore what is needed to create a vibrant victim support system is often missing or below standards. This definitely is an area that needs much more attention and cannot wait.

But most important of all- Victim support and assistance cannot and must not be seen as charity and philanthropy, dependent on ‘large heartedness’  or goodness  of individuals and institutions. It must be seen as a human right and addressed as such.

I will end with yet another story. I was visiting an organization and after the meeting got into a car. In the car was a young woman- smart and confident. She introduced herself: Hi I am Leela, I am a victim of trafficking.  This got me thinking. Was this her identity only? Indeed, she had been rescued from trafficking. But since then she had moved on…travelled the world speaking on trafficking and the importance to fight it. How long should a victim remain a victim? Of course you could say it is for her to decide…But, if we are in the business of making sure victims are no longer victims or victimized, that they can leave behind their experiences and trauma arising from the incidence of violence and abuse -how long should it be before  Leela can introduce herself as a Survivor or just Leela?

Indeed, if many of the women who are now speaking up had received the right kind of support and the environment when they had been abused- we would not have had to see #METOO  campaign today.

Thank You.Jindal-1-

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Is There a Secret Sauce for Democracy?

(This article is based on the opening remarks made by me at the Panel Discussion organised by British High Commission and Swaniti –  ‘Is there a secret sauce to democracy? Discussing the qualities that make democracy flourish’ 10.9.2018 to celebrate International Democracy Day on Sept 15.) 

I would have thought with the history of democracy being what it is, there is no secret sauce anymore. Its all well known and accepted. Or perhaps there are different types of sauces that are all accepted.

But clearly the world-over as in India, the circumstances we live in are asking us to revisit our own notions of democracy.  There is both hope and despair.

Can democracy only be about holding regular elections? Does that make any country or for that matter any institution democratic?

My first ingredient is the recognition that DEMOCRACY IS A VALUE and not just a concept, structure or an action.

It is a value that people either believe in or don’t, and that determines how we conduct ourselves in our families, communities, work space.  And this in turn, translates into how the country perceives democracy!

It rests on the values we embrace and act upon. Test this against the patriarchal and hierarchical structure of the families we grow up in; the fractured, often feudal societies we live in- stacked by caste, class, ethnicity, (dis)ability -and many more. We keep quoting Gandhiji on “Recalling the face of the poorest and the weakest man” and promptly forget to recall this face after elections. And hence inequality and discrimination remains a reality.

Not being part of any government of political party, I can only draw upon my experience as a citizen and a human rights activist for over 30 years. Unfortunately, an identity that has become a red rag to the authorities these days!

In the last two decades of upholding children’s rights, my biggest challenge was to persuade people that children have opinions and they must be heard with respect.  Because when we don’t listen to our children we quickly infantilise everyone else- believing we know best. And we do it to adults.  My friend on a wheel chair describes how people talk to her loudly and sometimes in slow baby type voice. She laughs- “I can’t walk, but my mind and ears work okay”. But this is an example of how we infantilise others and especially those in situations different from ours.  Indeed, it’s all about perception and power and who decides

And that is the start of authoritarianism that diminishes democracy.

Hence my second ingredient is EMPOWERING AND ENCOURAGING PEOPLE TO SPEAK.  Not just that, also providing the SAFE SPACES TO VOICE THEIR OPINIONS WITHOUT FEAR – that is the key-Without Fear. How often do we see this diminished?

Democracy cannot fear dissent.  Dissent and debate is good. It means we care and we are engaged with matters that matter!  Otherwise there is always the choice of apathetic silence…which also many choose! Does apathetic silence or silence because of fear mean assent or translate into love for the nation?

Australian Comedian Hannah Gadsby, who identifies herself as a lesbian and speaks about her struggles, in the now famous show, Nanette says- “It is about how we conduct a debate in public about sensitive issues” and she says, “I am angry…I have a right to be angry but not to spread anger!” Now that’s a thought in the context of what we see around us! Anger at injustice (perceived or real) must turn into constructive action…not mindless violence. But again. Hence SPACE FOR DISSENT AND DEBATE is the third ingredient to my sauce.

As Justice Dhananjay Chandrachud said  when hearing the petition filed by Romila Thapar and others seeking justice for the 5 human rights activists who were arrested – “Dissent is the safety valve of democracy. If you muzzle democracy, the pressure cooker will burst”. And we Indians love pressure cookers… so we must look after our safety valves.

The fourth ingredient, in my sauce of democracy is RECOGNITION AND RESPECT FOR DIVERSITY AND DIFFERENCE. The judgement on IPC 377, to which HAQ: Centre for Child Rights was the only child rights organisation to join the group called, Voices against 377, is a huge recognition of this.

India is a land of diversity-  this is the text in primary school text book is that we study.  No doubt that India prides itself for its diversity. But somewhere along the way we forget to remind others and ourselves of this.  After all, celebrating diversity means that we actually believe that there can be a variety of faiths, beliefs and indeed opinions – respect them and include them so that eventually there may be a consensus or an agreement to differ.  Our Constitution tells us this when it says that every citizen has Rights to Liberty and Fraternity. But we forget as we seem to have done today, as we think and act in monochromes. Indeed, this seems to be a malaise across the globe today.

Socrates also reminded us that democracy needs an informed and educated people. Which means they have to be provided correct and information. When politics and media create the narrative, the information that the people receive is not always the accurate. That indeed would be my fifth ingredient. Providing information-correct and unbiased information and ENABLING INFORMED DECISIONS

Having said that, I have immense faith in the ‘native intelligence’ of my country women and men…they have shown us our place time and again.

I asked my young son what I should say was the sauce of democracy…he promptly said “YOUTH. Have faith in the youth. Don’t think we are not watching or thinking. We may take our time- but we get there. So my sixth ingredient must be OUR DEMOGRAPHIC DIVIDEND AND INVESTING IN THEM RESPONSIBLY.

I am essentially a Contrarian – it may have given my parents challenging child to raise, my bosses an annoying person to supervise—but it has also been my greatest asset.  I learned to question and to disagree.  And that I have survived in my chosen vocation up until now is also a gift of the democracy I have enjoyed so far!

(I owe my sister Meenakshi a big thank you for her inputs)

 

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Giving Children a Fair Chance

 

This the link to our  (Bharti Ali and me) TED talk on giving children a fair chance. ….thank you Susmit Bose for the song that made it all so special

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Acceptance speech for the Juvenile Justice Across Borders Award given by IJJO

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Some justice at last for Baby N-Finally!

Today the man who raped baby N was convicted. He was sentenced to life imprisonment based on the nature of the crime he committed and the gravity of the injuries that baby N had sustained.

On the 29th of October, baby N will be admitted into hospital for the fourth operation.

A  year and a half ago 3 year old N and her parents arrived at our office with her parents with a plastic bag hanging from the side of her stomach to collect her urine and faeces as a result of her first of a series of colostomy operations. She had been brought to us by members of YP Foundation.

That was the beginning. Over the last year as we in HAQ walked with baby N and her mother on their journey to get justice, there were several times when we felt lost and defeated. N’s story is one that many child victims and their families go through every day. But on Monday 13 October 2014, baby N’s story became a story of hope.

N was  playing outside her home when she was picked up by a man in October 2012 and when she was  found in the hedges, although she was alive, she had  grievous injuries on her body andin her private body part. Since her vagina and rectum had been torn as were her insides by the violence had endured, she had to undergo colostomy procedure, a common surgery in individuals with trauma to their lower intestines.

Child victims of sexual assault are entitled to victim compensation from the District Legal Services Authority. But the compensation can be received only into a bank account. Since N’s  family lived in an “illegal jhuggi”, they had no proof of residence, which meant a bank account could not be opened, getting victim compensation was almost impossible.  They needed the money urgently.

Baby N had to wear a plastic bag which had to be changed 5-7 times a day. Sometimes even more. Each bag cost Rs. 20—which means the family had to have at least Rs. 200 a day for the plastic bags and medicines. The parents are daily wage labourers and because baby N needed care and attention the mother could not go to work. The father works only intermittently and is recovering from severe mental illness.

The burden of managing the family, as well as the judicial process is on N’s mother, who is barely 27 years old, and a mother or three children.

So while HAQ supported N and her family to meet the expenses of the first operation, we also had to support her in her difficult journey of preparing “legal identity proof” that finally enabled her to receive the compensation.

The family was in complete trauma, and indeed continues to be so. The extended family makes snide comments and blames the child—a three year old and her mother for what has happened. N’s maternal grandmother scolds her mother for having left the village and come to Delhi—a choice she made because of her husband’s mental illness. Receiving the compensation made it worse. The relatives, who were no help in any case, now began to harass them for money and even began to intimidate them to leave their jhuggi.

N who was a very reticent and quiet child, slowly began to open up and gain confidence. Despite her young age, the time that had elapsed since the incident, the unfamiliar surroundings of the court, in April 2013, she gave a spoke very clearly and answered all the questions asked of her. She was even able to recognise the accused. Prior to this on 26.11.2012, 3 year old N recorded her 164 statement before a Magistrate while she was not just in tremendous pain from her injuries but also undergoing complex and painful corrective surgeries for perineal tear of her vagina, perineal body and rectum. She was very scared but was able to identify the accused.

Moreover, there was clinching medical evidence in the form of DNA tests of samples establishing the perpetrator Surjeet’s identity and connection with the commission of the offence. The accused had been apprehended by the public while attempting to lure away another minor girl of an even younger age than N in the same neighbourhood. The accused had also admitted to have committed the rape of a minor girl 10-15 days ago .

The order of the sessions judge on 04.2.2014 acquitting the accused due to lack of evidence therefore came as a shock to all of us.  What the judge had to say took us all aback (the bold is the authors:

“No doubt the prosecutrix identified the accused in the dock during the course of her testimony but it is to be noted that her testimony was recorded after about six months of the date of incident. She had been produced before the Ld. Magistrate on 26.11.2012 for recording of her statement u/s.164 Cr.PC. The record of proceedings of the Ld. Magistrate (Ex.PW20/A) shows that the mother of the prosecutrix had accompanied the prosecutrix to the chamber of Ld. Magistrate and the Ld. Magistrate had tried to make her comfortable but even then the prosecutrix could not say anything about the incident of rape or the identity of the assailant. This had happened just after about one month & 20 days of the incident and during all this period, she was with her parents and hence no occasion for her to be under any fear. Even otherwise, there is nothing on record that the assailant has scolded or threatened or beaten her either before the incident or after it. This gives rise to a doubt that she may have been tutored how to depose in the court. How could she describe the incident in court and identify the accused when she could not say anything before the Ld. Magistrate.”

Not only did the Sessions Judge suggest that the victim had been tutored, despite N’s blood sample on the accused’s underwear, he said that that the evidence had been implanted on the accused. He goes further to say that a witness too was planted.

The loss of the case, combined with the aggression that the family was facing from relatives, the medical condition of N and the constant attention that was required was too much for the family. In desperation unknown to the HAQ team, N’s mother placed N in what she thought was a boarding school but was actually an orphanage. She even moved closer to the location of the orphanage so that she may be able to see her child as often as was allowed by the institution. Needless to say the mother was heartbroken.

It was providential that at a meeting called by I- Probono, we met with  Swathi Sukumar who heads the organization in India and we got them on board to help baby N. With the support of I Probono an appeal was filed in the High Court. On 13 October 2014, the Delhi High Court not only overturned the verdict of a fast-track court, which had acquitted the accused S, but also  pulled up the trial court for the manner in which the victim was examined.

The High Court observed –

“One cannot gloss over the fact that ‘N’ was brutally raped… Obviously ‘N’ had been lured to a secluded spot, hidden from public gaze, where she was raped. The focus of the trial was not on how ‘N’ was enticed to the secluded spot. ‘N’ was not an adult, and therefore, accountable for her conduct of how she reached a secluded spot”.

The court also expressed surprise at the questions put to the child during the recording of the initial statement under Section 164 CrPC by the magistrate.

Actually the recording by the Magistrate of N’s statement reflects complete insensitivity. N was three years old and traumatised.  She had never been to a school.

The magistrate asked her her age, whether she went to school. What is more she asked a three year old the difference between truth and lie and has recoded this-

“Prosecutrix is unable to tell the meaning of the word „truth nor is she able to distinguish between truth and lie”.

The magistrate had concluded that the child was not competent to make a statement.

Reacting to this the High Court said –

“The Magistrate ought to have first ascertained whether ‘N’ studied in a school before having questioned her i.e. ‘N’ about the school in which she is studying. The questions regarding the school put to ‘N’ by the Magistrate completely threw ‘N’ off-balance. What surprises us is that the learned magistrate overlooked the fact that ‘N’, who was less than three years of age, would not be studying in any school.

Thereafter the Magistrate threw a googly at ‘N’ by asking her whether she understands the meaning of word “truth and what is the difference between truth and lie. How could a two and half year old child explain the meaning of word “truth and state difference between truth and lie. It is very difficult, even for adults, to respond to abstract questions asking them to explain the conceptual difference between truth and lie. What to talk of a two and half year old child.

The High Court said, said that the magistrate took a “casual and cavalier” approach towards the victim. Citing various studies done regarding children’s understanding and communication, the High Court said that it takes children longer to process words, so it is essential to give them time to think and respond to the questions.
Based on the arguments presented and the evidence before it the High Court held Surjeet guilty and decided to hear arguments on his sentence on October 27.

Further, noting N’s medical condition, the High Court, in its order, also directed the health secretary, Delhi government, “to ensure that Baby ‘N’ receives the best possible medical treatment, and if necessary at a reputed private hospital for which the expenses shall be borne by the state”.

N’s case ended in justice from the High Court. This is a big win. But the struggles of daily life continue, made harder by the assault and rape she faced.  As if the medical condition as a result of her assault was not enough, Baby N while playing with her siblings fell into a pot of hot water and was burnt badly. She is recovering slowly.  But it is a long haul for N and her family, and also for us who are trying to support them.

At the same time Baby N’s story is yet another example of the nature of trauma that victims and their families have to endure in their search for justice. Not only is the process slow and tedious, it is also painful and traumatic. The system of investigation and judicial process as it unfolds, expects the child to recollect and repeat the sequence of events several times, leading to re-victimisation. Little surprise therefore that parents and child victims choose to keep quiet.

What makes it worse is what the victims and their families endure in their daily life. Many child survivors and their families are asked by landlords to vacate the house. Instead of cooperating with children and helping them to cope with the trauma and return to ‘normal’, children are subtly pushed out of school. Changing schools is even harder. Traumatised by the abuse, most survivors of CSA fall behind in academics, making admission to another school difficult unless the principal is apprised of the circumstances and admission sought on sympathetic grounds, hoping he/she will respect confidentiality.

Making laws is not enough. It is about how these laws are interpreted and implemented that determines justice.

For now, Baby N has got some justice. But there is a long road ahead for baby N before she is totally healed physically and mentally.

[1] Enakshi Ganguly Thukral is the Co-Director of HAQ: Centre for Child Rights

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The Media’s Kangaroo Courts (First posted on Facebook)

I have briefly met Shoma Chaudhury once. She is not my friend. I have never met Khurshid Anwar or Tarun Tejpal. So certainly they are not my friends. And I am in no way related to the young boy, who the media decided was the beast, the monster and the worst perpetrator in the December 16, 2012 rape. 

The protection of women is a priority that cannot be debated – whether it is the 16 December rape victim, a law intern, a journalist, victims in Muzzafarnagar, women like Soni Sori – or the minor rape victims that I have personally dealt with over my years of work. They must get justice. However as I read a piece by Seema Mustafa on the role of the media and the death of Khurshid Anwar, it set me thinking and I felt compelled to make a few observations.

I am not commenting on what Khurshid Anwar or Tarun Tejpal may or may not have done. That is for the judicial process to decide, on fact based trials. It is the role of the media and the public hysteria that it manages to generate, where there is a trial and a conviction in the street, and in every living room, today, that deeply worries me.

Seema Mustafa’s article has raised some important points regarding the role of the media and it took me back a few weeks to the pillorying that Shoma Chaudhury received from the media. She was accused of collusion, of hiding facts and indicted for not having filed a police complaint immediately, by journalists, activists and even male politicians who were suddenly experts on sexual harassment and women’s rights.

Of course there were gaps. Tehelka did not have a Committee to deal with Sexual Harassment in the Work Place- but then how many media houses, corporates or even NGOs have one? Even the Supreme Court of India did not have one till recently! When Tehelka and Shoma acknowledged this gap and announced the setting up of an inquiry committee and feminist and activist, Urvashi Butalia, with impeccable credentials, agreed to be on this committee, the media produced photographs of her on some panel with Tarun Tejpal, to establish they were friends and hence unfit to be on the panel. Most of us are often on panels, meetings and even social gatherings with diverse people – are they all our friends? And does this make us all unfit to be on panels of inquiry?

Why Shoma did not go to the police and file a complaint as soon as soon as the journalist approached her- is the question that has been repeatedly raised. Shoma has stated that her immediate response was to what the girl had requested, and going to the police is a process that the woman herself needed to be ready to go through, which was not immediately indicated. Is that so wrong? After all it appears that the in the case of alleged sexual assault by Khurshid Anwar, the choice was left to the girl for close to 3 months, as to when she would want to move the law by the well known women activists she had approached, some of whom were on the board of the organisation she worked in. Should all these women also be accused of collusion and silence, for not having promptly informed the police? All of us who work with victims of sexual assault find that the person concerned has to be mentally prepared to plunge into the criminal and legal battle that requires time, and often further pain. So why has Shoma been ‘hanged’ for thinking the same? At best we can say Shoma could have handled the situation better, with more procedure in place. But does that make her a co-accused and pushed out of every public space? 

Although in a much smaller measure I do know what it is to be in the eye of the media storm. Following the December 16 rape last year, the boy now 18 was tried and condemned on 24×7 media channels and print alike. He was declared the worst perpetrator and the beast. Based this one incident, the cry was for changing the law on juvenile justice. No one bothered to read the 357 page charge sheet. When the Police finally put out a 2 line statement that was carried only by two newspapers stating they retracted the statement that he was the worst perpetrator, no one else mentioned it. That was not the sexy by line. In the mean time the damage has been done. Respected Professor of Law, Dr. B.B Pande has written in an article that he has heard the concerned Magistrate admit that she succumbed to public pressure in her final order despite lack of evidence and also concerns about the boys safety in face of such public outrage. The boy lives in solitary confinement. Reporters who have met him say he swings between anxiety, fear and depression.

This boy is not my child, my friend or relative. But I do believe that he too deserved a fair trial. Besides, one incident cannot lead to the entire juvenile justice system being changed. That is when our society is determined by the one small window on the TV news screen. There we were stuck in a corner, with every other window closed and the anchors pushing us against the wall. It has been decided that we, me and others like me, support rapists and not the victim; that after our years of work with children we are not in touch with the reality of how children mature these days etc etc. Apart from other facts, they did not even try to get our names right. My colleague Bharti Ali became Bharti HAQ. The organisation HAQ: Centre for Child Rights became HAQ Foundation! My name of course is often too difficult to even pronounce! We were simply those persons that were put up on the screen so that the others could vent. For having another voice, we unequivocally represented the untold violence by all those horrible, monstrous boys that the system lets off.

In the public outrage that followed it has become impossible to go for a simple dinner party without someone coming up and saying—“so you think that boy who is the worst perpetrator should not be punished?” or “how can you be supporting a rapist?” ….We have even got mails saying –“hope you are raped or hope your child is raped because that is when you will understand the plight of the victim”. The window on the TV screen does not give enough time to mention that we work with victims of abuse too, most often very small children, and see their plight every day!

Thank god I am not as high profile or well known as Shoma. So I still have my job and my privacy and I don’t have politicians smearing my name plate. Luckily my children are old enough to be able to deal with it when they are told their mother supports rapists and delinquents. But Khurshid Anwar did not have the resilience to tide the storm. I do hope Shoma Choudhury and all those others that the media targets have it.

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“Aamra jara Rituparno (We who are Rituparno)”

22nd September 2013. I spent the afternoon watching Rituparno Ghose’s films Titli and Chitrangada. Beautiful, sensitive and brave.

This took me back to my last visit to Kolkata a few months ago, when I found my father sitting glued to the television, watching the live telecast of Rituparno Ghose’s Sharan Shabha (memorial meeting). I decided to sit and watch it with him. The memorial was attended by the who’s who of Calcutta, rather the whole of West Bengal, and included members of the Bangla film industry, politicians, academics, artistes, indeed anyone who mattered. And that included the Chief Minister, who sat through the whole programme.

Several people came up to reminisce about the talented filmmaker, and spoke about his untimely death and the legacy he has left behind. Not having ever lived in West Bengal, and not being familiar with them, I depended on my father to identify them for me.

A gentleman with striking white hair was one of them. He was accompanied by a young man in ethnic clothes and kohl-lined eyes. The elderly gentleman was introduced as Chapal Bhaduri, a well known stage actor particularly famous for his enactments of female roles in Bengali theatre. He had been the subject of a film by Rituparno, and he recounted his association with the director during the making of the film.

It was now the young man’s turn to speak. Rituparna Ghose had fought tirelessly for the cause of men like him, he began. And added, “I hope that aamra jara Rituparno (we who are Rituparno), will now find greater acceptance in society…”. Meanwhile, on the screen behind him, flashed pictures of Rituparno Ghose, adorned with full make-up and jewellery, smiling down at the audience.  Watching the young man pay his tribute were thousands, perhaps millions of Bengalis across the world. Only a relative handful was present there. The majority, like my 87 year-old father and I, sat glued to their television sets.

After the programme ended  my parents and I discussed Rituparno. They knew a lot more about him and his than I did. But what surprised me was that for the first time I was able to discuss homosexuality with my parents. It seemed that  Rituparno had been able to do what neither me nor my sister, both human rights activists, who make it our ‘job’  to persuade the world, had not been able to do in all these years. It appeared they had finally accepted homosexuality. That they  thought it was ‘Ok’ to be gay because of Rituparno, whom they admired  greatly was gay and had the courage not to hide it. The life of Rituparno, the brilliant director and artist, had finally persuaded them to regard  being gay is “normal” .

Even as I was trying to absorb this change in my parents, it suddenly  occurred to me that what was happening in my parents’ home was perhaps true of many more conservative middle-class Bengali homes. Is this why the young man had said “aamra jara Rituparno”? Had he realized that, in his death, the great filmmaker had pushed his audiences to recognize and accept homosexuality like they had never before?

Perhaps this was the first time that LGBT rights had been placed before such an eclectic ‘bhadralok’ audience, without being frowned upon. This was no gay parade, yet it had an equal, if not greater, impact, possibly as much as the Delhi High Court’s order decriminalising adult homosexual relationships.

Surely when we recount Rituparno Ghose’s legacy, this, besides all his films, especially those dealing with homosexuality, will rank high as another enduring part of it.

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