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.