Breaking The Silence

Summary

The rape and murder of a student in New Delhi on December 16, 2012, followed by large public protests, has led to a great deal of soul searching about the problem of sexual violence in India. Politicians, lawyers, women’s rights activists, and an independent government appointed commission have all made proposals for new laws, police reform, and public education. The government has promised action. If nothing else happens, the case has awakened many Indians to the scale and prevalence of sexual violence in their country. While great awareness has been raised about sexual violence against women in India, much less is known about the problem of sexual abuse of children. Studies suggest that more than 7,200 children, including infants, are raped every year; experts believe that many more cases go unreported. Expressing concern about violence against women after the New Delhi rape, Louis-Georges Arsenault, United Nations Children’s Fund (UNICEF) representative to India, said that “too many of these cases are children.”

Consider the case of Apna Ghar, a residential care facility for orphans and other vulnerable children in the northern Indian town of Rohtak in Haryana state. Conditions were so dire that at dawn on May 7, 2012, three teenage residents sneaked out through the front door after one of the girls stole the key to the door, along with 500 rupees, from the purse of the facility’s director. It was all they needed to make their escape to New Delhi. The girls promised the friends they left behind that they were going to return with help.

That help came two days later, when members of the National Commission for the Protection of Child Rights (NCPCR) visited the facility to investigate the girls’ allegations of abuse. The head of the team later described the scene they encountered there as “insane, unbelievable.” Girls of all ages told them they had been made to have sex with strangers for money, that the son-in-law of the director had molested them, that they had been stripped naked, and beaten on their vaginas. Others said that staff had tied them up and suspended them from ceiling fans as punishment. “They made us do such disgusting things,” one said. “I felt so dirty that even the water I drank afterwards tasted like it had been contaminated.”

What is most shocking about the abuse is that it happened in a well-respected facility that was regularly inspected by government officials. Its director, Jaswanti Devi, had recently been named Haryana state’s “woman role model of the year.” Her charity ran 12 government-funded welfare projects. According to Vinod Tikoo of the NCPCR, the abuse in the institution revealed a massive breakdown. “It is not neglect. It is systemic failure,” he told Human Rights Watch.

As recent research has shown, it is not just within institutions that Indian children suffer from sexual abuse. A 2007 Indian government-sponsored survey, based on interviews with 12,500 children in 13 different states, reported serious and widespread sexual abuse, thereby putting the government on notice about the gravity of the problem. Smaller surveys conducted by nongovernmental organizations (NGOs) have also painted a disturbing picture. Children are sexually abused by relatives at home, by people in their neighborhoods, at school, and in residential facilities for orphans and other at-risk children. Most such cases are not reported. Many are mistreated a second time by a criminal justice system that often does not want to hear or believe their accounts, or take serious action against perpetrators.

This report does not attempt a quantitative analysis of the scope of the problem in India. That has already been established by recent research conducted by the government and others, though more research is certainly needed. Instead, this report looks at a number of detailed case studies to examine what the government does to prevent abuse, how it responds when it receives allegations of abuse, and how it treats victims after they are abused. To prepare this report, we interviewed more than one hundred government officials, doctors, police officials, lawyers, members of nongovernmental organizations, and children. We spoke directly with eight victims of child sexual abuse and the relatives of another nine victims. We examined court papers and other documents. In accordance with Indian law, we have changed, or not revealed, the names of any of the victims and their relatives.

A wide swathe of authorities in India, including political leaders, bureaucrats, police, and judges, have publicly condemned the sexual abuse of children. Yet, poor awareness, social stigma, and negligence have facilitated the continued perpetuation of such crimes.

During our research we found that despite commitments to ensure the protection of children, the Indian government has failed to generate effective oversight mechanisms that could prevent much of the child sexual abuse from taking place. Additionally, existing child protection schemes, and many police departments, courts, local government administrations, children’s institutional care facilities, schools, and doctors, are simply not doing enough to help victims after sexual abuse has been identified, or to ensure that perpetrators are punished.

A government appointed committee, in January, found that the government’s child protection schemes, “have clearly failed to achieve their avowed objective.” Set up by the government in December 2012 in the wake of the Delhi attack, the committee, headed by Justice J.S. Verma, made several recommendations to address sexual assault and expressed particular concern over the plight of children in residential care institutions.

To be sure there are significant hurdles to crafting effective responses to this still largely hidden problem. Fear of social stigma or lack of faith in government institutions prevents many people from reporting child sexual abuse. The 2007 government survey found that, among abused children, only 25 percent had told anyone, and only in 3 percent of the cases had the police been informed. As in many other countries, deep-rooted cultural norms discourage the open discussion of sex and make it hard for a child to complain about an older relative or a person in a position of authority. Writing in the introduction to the government survey, the then women and child development minister, Renuka Chowdhury, said that child sexual abuse in India, “is shrouded in secrecy and there is a conspiracy of silence around the entire subject.”

Addressing child sexual abuse is a challenge all over the world. But in India, shortcomings in both state and community responses add to the problem. Victims who do come forward to make a complaint often suffer as a result. For instance, Ahmed told Human Rights Watch that his family found itself ostracized after his 12-year-old daughter said she was raped. She claims this happened after three men abducted her one afternoon as she was walking to her home in the northern city of Varanasi. Ahmed said that he decided to inform the police because many schoolgirls used the same street and he was afraid for their safety. But instead of winning the gratitude of his neighbors, they shunned him and his daughter because she was a rape victim. The parents of his elder daughter's fiancé cancelled the engagement because they felt that public knowledge of the attack had brought shame to their family. The police discouraged him from registering a complaint and, apparently to avoid having to take action, even accused the family of lying. Ahmed told Human Rights Watch:

My daughter was continuously saying that she had been raped, but the police told us not to tell anyone. They told us to settle the case. When I refused, the police then grabbed me and slapped me several times. Three or four men did this to me, including the station officer. They also beat my son. 

The fear of attracting social stigma can result in families trying to cover up the most horrific treatment of children. In a village in Uttar Pradesh state, the mother of a two-year- old girl walked in on her child being molested by a 17-year-old male second cousin. The parents of the girl wanted to file a case with the police, but were persuaded by the extended family as well as the police to settle the matter privately. Rather than having the perpetrator arrested, he was instead told to leave the village. “We know that a lot of abuse is happening but people don't talk about it,” said Anand Prakash, a local social activist. “It is all related to respect and the dignity of the family. If it comes out, the family will be disrespected.”

In recent years this “conspiracy of silence” has finally begun to break down, thanks to activists working on the rights of women and children, the small but growing number of NGOs that counsel survivors and raise awareness, and to the central government’s Ministry of Women and Child Development, which has taken a leadership role on the issue. The criminal justice system, from the time police receive a complaint until trials are completed, needs urgent reform. One problem is the inconsistency in the way the system currently handles cases. Many victims and their families find the whole process extremely intimidating. Neha, for example, who is from a low-caste rural family, told Human Rights Watch that she was raped when she was 16 years old. The next day she put on her best clothes to look respectable and went to the police station. But the officer on duty simply made rude remarks about how nice she looked, suggested that she had consensual sex, and told her to go away. “The man on duty told me to shut my mouth and go back home,” Neha said. “I was so angry that I wanted to hit him. Why was he doubting me?”

Krishna, from Uttar Pradesh, says she was raped when she was 12 years old by a member of a politically influential family. When she complained to the police, she said they detained her at the station for the next 12 days:

They [the police] kept insisting that I change my statement otherwise they threatened that something would happen to me. They would also insult me and call me rude names. My parents kept trying to see me but they did not allow them to talk to me because they thought my parents would tell me to speak the truth.

Victims also complain about the insensitive way they are treated by the doctors who examine them for evidence of rape. Many, like Krishna, found it a deeply upsetting experience. She said:

[The doctor] asked me to lie down on a table and remove my clothes. When she examined me she inserted a single finger inside me. It hurt and I was scared. I did not like what the doctor was doing to me. She then said something like, “Oh, it was just a small rape, it is no big deal.”

The mother of a three-year-old girl described the medical examination of her daughter, who she suspected had been raped and sodomized by the father, as both distressing and painful. The examination took place in a blood-stained labor ward in a government hospital in Bengaluru instead of a separate room where the child would not be further traumatized. After a lengthy and anxious wait for the doctor to arrive, the examining doctor “pulled her legs back and she screamed.”

According Dr. Shaibya Saldanha, a gynecologist who works with child sexual abuse survivors in the southern city of Bengaluru, most doctors simply do not have the skills to perform such an important role:

Unfortunately no doctor, whether a general practitioner or a gynecologist or a pediatrician has been given any training whatsoever regarding child abuse examination, interviewing, how to take care, what are rehabilitation procedures, the medical and psychological needs of the child. They have no idea. 

The result of such treatment is that many victims decide not to pursue their case. Senior police officer Suman Nalwa, who heads a special unit for women and children in New Delhi, recalls failing to persuade one nervous and reluctant woman to bring charges against her husband for molesting their 11-year-old daughter. Nalwa told Human Rights Watch, 

We told her that her name would be secret and the trial would be in camera [not in public], and we took them to the hospital for a medical examination. But their treatment in the hospital was so pathetic that she said, “You know, you promised me so many things and this is only the first step.” She just walked out and never came back.

A major problem in India is the lack of effective monitoring of residential care facilities, orphanages and other children’s institutions. In the first half of 2012 alone, the Times of India newspaper reported sexual abuse cases in eight different residential facilities in different parts of the country. Three of them, including Apna Ghar, mentioned above, were in Haryana, with others in New Delhi, Karnataka, West Bengal, Goa, and Uttar Pradesh. Alleged abusers were members of staff, older children, and outside visitors including police officers. 

Under the Juvenile Justice (Care and Protection of Children) Act, 2000, all existing children’s residential care facilities were supposed to register with the government within six months, with child welfare committees mandated to inspect them. But the law actually contains no penalties for children’s care facilities that do not comply. The government’s system of monitoring and inspection is in any case so dysfunctional that nobody even knows how many such institutions there are in India, let alone how the children in them are treated. A former child resident of one facility said that where he lived, “nobody dared to share their experience with anybody outside. The general atmosphere was intimidating, scary and oppressive.” He told Human Rights Watch that both wardens and older children were involved in sexually abusing young boys and that a climate of fear prevented anyone from reporting what was going on to managers. In the 15 years he lived there, he said, he was not aware of the facility being inspected once. “A child would dare not complain about the warden, and those older boys were also so intimidating,” he said. “It had a bullying culture and there were no safeguards.”

In May 2012, India’s parliament took a major step by passing the Protection of Children from Sexual Offences Act. Under the law, all forms of child sexual abuse are now specific criminal offenses for the first time ever in India. Before the new law, different forms of abuse had to be prosecuted under a patchwork of different laws often designed for different purposes, and their uncertain applicability to individual cases of child abuse created obstacles to prosecution. For example, it was not clear whether any law covered non-penetrative sexual acts committed against boys. The new law also establishes guidelines for the police and courts to deal with victims sensitively and provides for the setting up of specialist child courts. There is hope that, taken together, these measures will encourage more victims and their families to step forward, and result in more successful prosecutions.

These are welcome initiatives, but will only make a difference if they are implemented. Experience in India shows that while good laws and policies can be adopted by the central government, implementation is frequently a challenge. An earlier law has in fact already provided for the setting up of courts for the “speedy trial of offenses against children.” But six years later, only the Delhi state government has begun the process of establishing one. Implementation problems have also hindered other attempts to improve the protection of children. The goal of the Integrated Child Protection Scheme (ICPS), an ambitious nationwide scheme launched in 2009, was to strengthen existing child protection measures, and create new ones, such as a network of district level social workers. But the government admits that the scheme has been slow to get off the ground. According to its own figures, only four of India's 28 states spent the money they were allocated by the central government during the first three years of the scheme.

In most states, important bodies, such as child welfare committees designed to oversee the care of vulnerable children, do not receive the funding they need. Since the ICPS was formed in 2009, the number of such committees has increased, but there are still serious gaps. According to a recent survey, fewer than half of India's 629 districts had appointed a committee, and most members of committees that did exist had received no training in India's juvenile justice or child protection systems. Badly trained and poorly funded child welfare committees are failing to adequately monitor orphanages and other residential care facilities. It is essential that this work be improved because, as recent cases have highlighted, sexual abuse in such institutions appears to be widespread.

The National Commission for the Protection of Child Rights has been given the task of monitoring implementation of the Protection of Children from Sexual Offences Act. To do this properly, it must be given sufficient staff and resources.

Apart from its domestic laws, India is party to a number of international human rights treaties, including the International Covenant on Civil and Political Rights and the Convention on the Rights of Child, which provide specific protections for the rights of children. They call for measures to prevent and punish abuses by government officials, and place a burden on governments at the central and state level to adopt measures to prevent and punish abuses by private citizens.

Human Rights Watch calls on the Indian government to adopt and enforce policies that will prevent and redress sexual violence against children. International institutions and foreign governments should work with the Indian government to assist in providing training and best practice models that can protect every child in India.

Key Recommendations 
India’s central and state governments should ensure that the perpetrators of sexual abuse of children are brought to justice. All victims should be provided with the support they need for full physical and psychological recovery and social reintegration.

The Central Government Should:

• Ensure that the National Commission for the Protection of Child Rights has sufficient resources to monitor the effectiveness of the Protection of Children from Sexual Offenses Act. Appointed members should be experts in child protection and be backed up by effective investigative units. The commission should have an independent capacity for investigations.
• Review the Protection of Children from Sexual Offenses Act's effectiveness within a reasonable period, and seek amendments in consultation with women's rights, children's right, and civil liberties activists to address shortcomings in the law, including the presumption of guilt against the accused.
• Use an evidence-based approach to legislative drafting including existing evidence of consensual sexual contact among adolescents under age 18. Consider recommendations from activists to lower the minimum age of consent for sexual contact to reflect the evolving capacity and maturity of adolescents and ensure that the law does not punish the same population—children—that it is designed to protect; under-18s who engage in consensual sexual contact with peers should not be criminally punished.
• Amend the Juvenile Justice Act to require registration and the meeting of specified standards by children’s residential care facilities before they open. Establish penalties for facilities that fail to register. Ensure that all institutions housing children are subject to regular and periodic inspections, and institute regulation of residential care facilities.
• Prioritize implementation of the Integrated Child Protection Scheme and ensure that states properly and promptly utilize the resources allocated to them to create effective child welfare committees. Facilitate training of all child welfare committee members on India's juvenile justice and child protection systems.
• Adopt and implement a protocol for the medical treatment and examination of victims of child sexual abuse, in accordance with guidelines developed by the World Health Organization. Ensure that physicians and other medical staff respond to cases of sexual abuse in a sensitive manner that minimizes invasive examination and provides access to continued reproductive, sexual, and mental health services. Train doctors in all public health facilities to adopt and use this protocol.

While the central government should develop suitable policies, it is the state governments that have the main responsibility for proper implementation.

The State Governments Should:

• Implement the Protection of Children from Sexual Offences Act and give priority to the training of the police, court personnel, government social workers, child welfare committee members, and doctors who work with children.
• Establish a commission for the protection of child rights if one does not exist in a state. All states should provide adequate resources so that such commissions can carry out their mandates and operate effectively and independently. Appoint qualified and independent experts to these commissions in a transparent manner.
• Appoint qualified and independent individuals to serve on child welfare committees. Adopt a standard operating procedure and ensure that the committees have sufficient resources for members to carry out all their responsibilities, including mandated inspection of children’s residential care facilities. Ensure that professional counseling services are available for children that have suffered sexual abuse.
• Conduct a survey of all residential care facilities and provide this information to child welfare committees, state child rights commissions, and the National Commission for the Protection of Child Rights. Establish a monitoring mechanism in which children are independently interviewed in a safe environment. Ensure that all institutions housing children are subject to regular and periodic inspections.
• Provide training to police to sensitively handle complaints of child sexual abuse so that they do not re-traumatize victims by aggressively questioning the child or family members. This should include training of junior ranks that have most public dealings at police stations or as first response units. Establish a policy that under no circumstances should the police attempt to dissuade or intimidate a complainant, with disciplinary consequences for those who do so.
• Establish “child courts” to handle cases of child abuse as provided for under central government schemes. Arrangements should be made whereby children do not have to confront the accused, while at the same time ensuring that defendants can hear testimony and instruct their advocate in accordance with their fair trial rights. Steps should be taken to ensure that children are not overwhelmed by court surroundings.

Full text of the report (whose summary and key recommendations are given above):

Breaking the Silence