Mandatory Reporting Under POCSO: Are We Ready?

by Mansi Binjrajka

Although there is much discussion and awareness about sexual violence against women, the same is not the case with child sexual abuse. In Dr. A. P. J. Abdul Kalam’s words, a “conspiracy of silence” surrounds the subject. This is partly a result of the deep-seated belief that child sexual abuse is a western concept, and not something that can occur in India. The fact that most families are uncomfortable talking about sexuality with children in their growing years exacerbates this problem.

It is time to dispel these myths. Child sexual abuse does occur in India. Although there is very little empirical data available on the scale of abuse in India, a study conducted by the Ministry of Women and Child Development in 2007 revealed that every second child in the country is facing some form of sexual abuse and the perpetrator in 50% of the cases is a person known to the child.

A step in the right direction was the enactment of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), a move finally fulfilling India’s international obligations under the United Nations Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination Against Women. One of the controversial sections in this Act is Section 19 under which every person is required to report apprehensions or knowledge of offences having been committed against children to the police. Failure to report attracts imprisonment of up to six months and a fine or both.

Mandatory reporting can be quite the double-edged sword as can be seen from the divided views on the topic. The proponents have a simple argument.  Imposing an obligation is the only way to detect all cases of abuse because children do not have the resources to protect themselves. Mandatory reporting becomes especially important in light of the proximity of the offender to the children, the offenders most commonly being fathers, cousins, uncles, brothers-in-law, and neighbours. These cases involve continued abuse over a number of years and often go unreported. If other family members know about the abuse they either remain silent, or disbelieve the child or ask them to remain silent due to fear of social stigma and an unwillingness to implicate family members. Children are unable to remove themselves from the abusive conditions and hence, they need adults to act on their behalf. Simply put, mandatory reporting protects children from further abuse and prevents the abuser from abusing again.

However, mandatory reporting alone cannot ensure effective intervention in all cases of abuse. “Well-framed legal provisions, adequate teacher training, good reporting practice, and properly-resourced investigative and intervention bodies”[1] are required to complement mandatory reporting. Are these too many assumptions in the Indian context? Have we put the cart before the horse?

A point of difference between mandatory reporting under POCSO and the same under laws of other countries is that it imposes an obligation on every person. In most states of USA, Australia and most member states of the EU, only certain professionals such as doctors, teachers, counselors, social workers, psychologists are mandated reporters. These are categories of people who are frequently in contact with children and are sensitive to the manifestations of sexual abuse in the form of behavioral changes, low self-esteem, and aggression among others. This advantage is lost when every citizen is a mandated reporter, which may result in the lodging of false complaints, the most common argument adopted by opponents of mandatory reporting. Is the penalty for false reporting under the Act sufficient to discourage over-reporting?

Now that we have put the cart before the horse, there is a need to focus on putting things in the right order again. RAHAT, a project that aims to provide socio-legal assistance to victims of sexual abuse has discovered that one of the main fears held by victims is the process that follows after a complaint has been filed with most of them discouraged by imagining the time period between the filing of the FIR and the conclusion of the trial. By providing assistance at every stage after an FIR has been filed, RAHAT has been able to secure a conviction in 70% of its cases. Their support, which includes counseling and preparing the child for the court procedures, goes a long way in helping the case reach its logical conclusion. Their findings seem to suggest that the problem lies in the absence of child support systems. Many problems crop up after a report has been made. What is the use of mandatory reporting if, for example, the victim and the witnesses turn hostile, or if the entire procedure after the filing of the complaint does more harm to the child?

The tension between under-reporting and over-reporting is inevitable as long as there is a gap between the requirements and the existing structures. In the absence of proper data, it becomes difficult to make probable claims about the implications of mandatory reporting. It is unfortunate that the National Crime Records Bureau statistics do not provide any data about cases under POCSO. Since we already have mandatory reporting, the focus should not be on whether it is good or bad, but instead on what needs to be done to make it work.

(Mansi Binjrajka is an Associate Editor at the Journal of Indian Law and Society)

[1] Ben Mathews & Kerryann Walsh, Issues in Mandatory Reporting of Child Sexual Abuse by Australian Teachers, 9 Austl. & N.Z. J.L. & Educ. 3 (2004).

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