In a recent judgment, the Madras High Court ruled that courts should not be influenced by misconceptions that children are likely to lie in cases of sexual abuse or that they are tutored by parents to make false statements in court. While these observations are welcome, the attitude of the defence lawyer in this case was seriously problematic. He made several objections to the testimony of the child witness, citing reasons such as the possibility of influence of pretrial conversations on the child, delay in disclosing the abuse, and the possibility of false reporting.
The attitude of defence lawyers reflects a structural problem in the legal system, for it is biased and derogatory towards victims of child sexual abuse. Defence questions are hostile, often sexually explicit, and structured to imply that lack of resistance means consent. To discourage this controversial practice, one of the guidelines in Sakshi v. Union of India (2004) requires questions in cross-examination to be routed to the prosecutrix through the Presiding Officer, to prevent harassment and intimidation by the defence counsel. However, this is not an established practice and happens only when cross-examination gets unacceptably offensive and objectionable. Compounding the problem is the fact that child witnesses don’t understand the confusing questions of defence counsel. This makes them vulnerable and they end up giving vague answers. Also, as children typically delay disclosure of abuse (one third of them wait at least a year), chances are that medical evidence may go undetected or get lost, thus hampering their chances of securing justice. Delayed disclosure also makes it difficult for child witnesses to recall specific details of the abuse, which makes it easier for the defence to disprove allegations. So, the moot question is, what policy should be adopted to address the concerns of delayed reporting of abuse and brutal cross-examination of child witnesses? Drawing from the interim findings of #DignityProtect, a field action project of the Centre for Criminology and Public Policy, we propose that children be educated not only about the nature of sexual abuse and but also the procedures to invoke formal justice mechanisms. For this, it is imperative to introduce sexuality education in the school curriculum, underpinned by concepts of criminology and criminal justice.
Learning the names of body parts
Children need to learn the names of body parts instead of using euphemisms. In trial proceedings, defence lawyers ask specific and inappropriate questions, which require child witnesses to describe the details of abuse including the behaviour of the accused. Not knowing how to narrate what exactly happened to them, children typically provide vague and sketchy responses (‘he hurt me there’ or ‘I didn’t feel right or comfortable when he touched me there’) instead of using standard terms that describe body parts. Defence lawyers often capitalise on these responses and undermine the credibility of the witness while judges are less inclined to believe such incoherent accounts. Indeed, there is a compelling need to increase the awareness of the legal system about child-sensitive communication. But more essentially, children should be provided sexuality education so they can be equipped with the right vocabulary to talk about sexual abuse, without either trivialising it or obfuscating judicial actors. Teaching the correct names of private parts will also reduce the shame and stigma associated with talking about them. Skills learnt through sexuality education will prepare children to recognise potentially inappropriate behaviour, understand the different emotions that come with feeling ‘unsafe’, verbalise abuse to seek help from adults, and disclose abuse promptly. They will also be able to understand grooming behaviours which are subtle, methodical and even escalating. Sexuality education will thus significantly reduce the likelihood of delayed disclosure and subsequent healing of injury on the body, which often results in loss of vital forensic evidence. The justice process appears frightening to child survivors because no one has educated them about the practices of the court. Besides, unawareness of how and who to report the abuse goes against their interest. Sexuality education will thus allow children to gain knowledge about the most effective ways to respond to sexual abuse and the probative value of forensic evidence in improving justice outcomes. It will prepare them adequately for courts while also helping them manage their expectations and psychological state throughout the legal process.