The Public Prosecutor & the Child Victim

By Vrinda Aggarwal

Justice has been viewed as a triangulation of three interests – the interest of the accused, represented by the defence attorney, the interest of the society to punish a crime, represented by the public prosecution (PP) and the interest of the victim, which often remains unrepresented.[i] This article aims to discuss this void in the criminal justice system specifically in the context of child sexual abuse.

Conviction rates under Protection of Children from Sexual Offences Act, 2012 (POCSO Act) have been abysmally low, indicating the apathy in the working of the investigating agencies as well as the prosecution. Only recently, in the case of Alakh Kumar Nanda v. Union of India[ii], the court observed a vast delay in the trial and investigation procedures under POCSO thereby jeopardising the rights of the child victims.

Section 32 of the POCSO Act provides for the appointment of a Special Public Prosecutor (SPP) for the special courts trying cases under the provisions of the said Act. The only rider being that the SPP ought to have at least 7 years of work experience. No regard is placed upon the SPP’s specialisation in dealing with children who were victims of sexual abuse. The said procedure of appointment was challenged before the Kerala High Court, in the case of Aju Mathew v. State of Kerala, where specific guidelines for such appointments were sought. However, the court turned a blind eye towards the said claims and held that the procedure laid down by law was sufficient and no further judicial guidelines were required.[iii] This paper aims to fill this void by discussing international practice relating to public prosecutors by dissecting the anatomy of a criminal trial, stage by stage to ensure welfare of the child victim at each of these stages.

1. Identification of Crime & Collection of Evidence

Reporting of child sexual abuse has become mandatory across the world. [iv] Yet, the reporting mechanisms developed by the states often lead to secondary victimization of the child victim owing to labyrinthine procedures. Therefore, there have been numerous procedural developments across the world which envisage to institutionalize prosecution and investigation of child abuse into one-stop shops to minimise the risk of evidence tampering or contradiction in testimony as well as ensuring that the child receives holistic care in terms of legal as well as medical aid. The following are instances of such practices: –

1. WHO provides specific guidelines for setting up of Medico-Legal care for Victims of Sexual Violence.[v]
2. The American Bar Association (ABA) has initiated the process of creating “Multi-Disciplinary teams” (MDTs) which may have participating representatives of [vi]:-

• United States Attorney’s Office
• FBI (victim-witness representative and special agent)
• Bureau of Indian Affairs Office of Law Enforcement Services.

These MDTs are now becoming a norm in the US, so much so that the ABA is now funding the creation of such teams in other countries.[vii]

1. Another emerging trend in Canada and to some extent in Kenya is the rise of specially trained individuals known as “Sexual Assault Nurse Officers” who provide the first medical aid and also provide investigative services to the victim of sexual abuse.[viii]
2. In Japan, child abuse is investigated by a child welfare worker in the place where the child resides.[ix]
3. Israel has a separate evidence act governing procedures of evidence relating to child (under the age of 15) victims/ witnesses or perpetrators.^[x] Under this law the responsibility to collect the said evidence was passed from ordinary investigating agencies to a class of professionals called the ‘Youth Investigators’. The law further provides that the child victim ought to be interviewed within the first 72 hours of the reporting of the crime and such interview ought to be videotaped.

The POCSO Model Guidelines of 2013, constituted under S. 39 of the Act, provides for specific guidelines for interviewing the child victim. The guidelines envisage multiple interviewing of the child – for the purposes of investigation, prosecution, medical evidence, psychological testing etc. This creates a labyrinthine procedure which forces the child to repeat the traumatic incident over and over again, thereby leading to secondary victimisation. Besides running the risk of having a contradiction within the testimony of the child, the strategy of multiple interviewing robs the child and its caregivers of any will to seek justice.

2. Identifying Safe Havens

A prominent debate which has emerged in the sphere of identifying safe havens for children is the excessive institutionalisation of child care centres which leads to child neglect. Following similar logic, countries across the globe are promoting foster child care services rather than investing in institutional set ups.[xi] However, despite the duty of the state to reinstate a child in a conducive environment, the criminal trial should also account for the rights of the victims flowing from principles of social justice – restitution of the victim both psychologically as well as monetarily. Who other than the prosecutor could draw the court’s attention on the same?

International practice indicates that the prosecutor is often made responsible for ensuring that the child is provided with a safe haven. Therefore, the role of the public prosecutor is not only limited to pressing for criminal liability against the accused but also that the fundamental right of a child to be born and brought up in an environment which is conducive to its growth is also upheld. This is lucidly reiterated by the US Attorney’s Bulletin which provides that the “federal prosecutor must often take steps which resemble social work more than prosecution”, specifically in the case of child abuse.[xii]

The model guidelines under POCSO provides for the child to be rehabilitated in a child friendly environment, the economic brunt of which would be borne by the accused. However, the rules are silent on the question of whether an acquittal would result in the child being denied the status of a victim. To put it simply, is the trial only a determination of the accused’s guilt or even the child’s status as a victim (this becomes pertinent when the perpetrator may be unknown but there is a definite proof of abuse)? This alludes only towards a larger responsibility which the prosecutor must assume while representing the interests of the victim.

3. Exercising Prosecutorial Discretion

While, sexual offences against a child have been perceived as one of the most heinous of all the crimes, there is an ongoing movement to decriminalize intra-familial abuse of minor nature to protect the familial integrity of the child. Such a movement is based upon the belief that incrimination of caregivers may not constitute justice for a child victim as it might lead to further social ostracization.[xiii] This trend is elucidated by the Japanese “Law on Child Abuse Prevention” which lends scope for restoration of relationship between an abusing parent and the child by providing constant and mandatory counselling sessions and house visits by the Child Welfare Manager.[xiv] Similarly, an American study indicates that 64.6% of the cases of parental abuse are diverted by District Attorneys with the assurance that the parent would undergo mandatory psychological treatment.[xv]

However, advocates of social justice show cynicism towards this approach by indicating that it might be susceptible to abuse since relations of power often dominate over any form of negotiation for restoration. This is specifically true for the Indian context, since the Supreme Court has clearly laid down in the case of State of MP v. Madanlal that in case of rape, no compromise of any kind can be allowable. The same principle ought to apply for child sexual abuse.

4. Preparing the Child for the Trial

Preparing a child for the upcoming trial is an important element of prosecutorial responsibility as it enables the child to testify in a free manner before the court. It is a matter of international best practices that the child be taken for a court room visit in order to familiarize the child with the court environment. Further, the prosecutor should intimate the child of all possible questions which are likely to be posed. The child should also be informed of the presence of the accused in the courtroom, in order to ensure that the child does not get intimidated by such presence.

5. Ensuring that the Trial is Child Friendly

Courts across the world have recognised the need to be conducive to the public it caters. This is specifically true in cases where children are involved. A good instance would be the ad hoc practices adopted by the American Courts – for instance, in Massachusetts, judges bring in pint-size witness chairs so youngsters’ feet won’t dangle. In Maryland, children who have trouble speaking may draw what happened. In Minnesota, a child frozen with fear was permitted to testify from under the prosecutor’s table. Further, in Brooklyn courts, children use dolls to describe crimes whose names they don’t know.[xvi]

In India the SPP and the defence attorneys cannot put questions to the child directly. All questions during the examination-in-chief and cross-examination ought to be routed through the Special Court Judge only. Under Section 33(6), the Special Court should not allow aggressive questioning or character. The NLSIU study on the working of the Special Courts under POCSO indicated that there was a violation of the said law and questions were being asked directly to the child, even though the special judge was also asking a few questions.[xvii] The Study also notes that in some districts the Judges prevented the defence from asking insensitive questions, or ensure that they are rephrased before being put to the child. Therefore there is a need for the SPP to be vigilant of the procedural rights of the child victim as enumerated under POCSO.

Conclusion

In India, public prosecution remains a neglected sector in reforming criminal justice system which has led to marginalisation of the crime victims. The said brief note on prosecutorial developments in the field of sexual offences against children is only representational of the said ignorance. The only way forward is to specialise prosecutorial systems by ensuring that procedures are made victim friendly. This could be done only when the public prosecutor is specifically trained to cater to a given set of victims – whether victims of child abuse, domestic abuse, sexual assault or others. Only recently, National Law University, Delhi hosted a conference on the Role of Public Prosecutors in Achieving Victim Justice. It is time that this academic consensus and movement translates into policy steps such as the ones mentioned.

[The author is a fourth year law student at Jindal Global Law School. Her internship at Centre for Criminology and Victimology at National Law University, Delhi drew her attention towards the policy void in the sphere of public prosecution.]

[i] G.S. Bajpai & Ramneek Kaur, Evolving Victimological Jurisprudence: A View From Supreme Court Cases, 3 J. NLUD (2015-2016)

[ii] Alakh Alok Srivastava v. Union of India WP(C) No. 74 of 2018

[iii] Aju Mathew v. The State of Kerala WP(C).No. 22255 of 2017

[iv] For eg. See all state laws in America which mandate reporting of instances of child sexual abuse. Available at: https://www.childwelfare.gov/topics/systemwide/laws-policies/state/?CWIGFunctionsaction=statestatutes:main&CWIGFunctionspk=2

[v] World Health Organization. Guidelines for Medico-Legal Care for Victims of Domestic Violence (Geneva: World Health Organization, 2003)

[vi] Gregg S. Peterman, A Primer on the Prosecution of Child Sexual Abuse, 58 U.S. ATT’YS BULL. 12 (2010)

[vii] For e.g. HEAL Africa hospital in the Democratic Republic of the Congo (DRC) offers on-site legal assistance to survivors through an on-site legal clinic run by the American Bar Association’s (ABA) Rule of Law Initiative.

[viii] K. Bechtel, E. Ryan, and D. Gallagher, “The impact of sexual assault nurse examiners on the evaluation of sexual assault in a paediatric emergency department,” Paediatric Emergency Care, 24 (2008): 442-7.

[ix] Art 11, Law on Child Abuse Prevention (Law No. 82 of 2000)

[x] David, H. (1989). The role of the youth interrogator. In J. R. Spencer, G. Nicholson, R. Flin, R. Bull (Eds.), Children’s evidence in legal proceedings: An international perspective (pp. 97-103). Cambridge, England: Cambridge Law Faculty

[xi] See for e.g. Without Dreams, Children in Alternative Care in Japan (May 1, 2014) Available At https://www.hrw.org/report/2014/05/01/without-dreams/children-alternative-care-japan

[xii] Gregg S. Peterman, A Primer on the Prosecution of Child Sexual Abuse, 58 U.S. ATT’YS BULL. 12 (2010)

[xiii] Douglas J. Besharov, Child Abuse: Arrest and Prosecution Decision-Making, 24 AM. CRIM. L. REV. 315 (1986).

[xiv] Article, 10 Law on Child Abuse Prevention (Law No. 82 of 2000)

[xv] Lorie A. Fridell, Decision-Making of the District Attorney: Diverting or Prosecuting Intrafamilial Child Sexual Abuse Offenders, 4 CRIM. JUST. POL’Y REV. 249 (1990).

[xvi] Children and the Courts, NEWSWEEK, May 14, 1984, at 32

[xvii] Id.