Child abuse:

Justice delayed is justice denied

by Justice P. K. H. Kulatilaka

‘Rape is horrible because you are violated, you are scared, somebody takes control of your body and hurts you in the most intimate way’. Reportedly this utterance was made to the New York Times by Abdul Abdulail an Indian victim of brutal gang rape who was a child of 17 years then, now going on her forties. This portrays how a victim’s mind works after she was subjected to rape.

A victim of child rape or grave child abuse should not be made to undergo further suffering by making her to keep on thinking of the ordeal she suffered at the hands of a brute for years and years. We go on the premise that children portray innocence and purity, divine qualities that distinguish them from adults. The irony of it is that predators had exploited the very same qualities to satisfy their greed for sex.

Why should poor souls be made to suffer more?

Police investigations

The child victim will often be troubled by feeling of insecurity, seclusion, loneliness leading up to mental disturbances. The offender would be out of prison on bail so that the child can be the target of secondary victimisation. Fear of reprisal will haunt her.

In the circumstances it is a crime to delay the hearing of their cases.

A study on suspended sentences for sexual offenders titled ‘Justice - Suspended?’ published by the lawyers for Human Rights and Development, February 2012 revealed that in 75 out of 103 cases they looked up the police had taken less than two years to forward investigation files to the Attorney General’s Department. In 28 cases the police had taken more than two years and in 19 cases three to four years to conclude investigation. I have already pointed out how the incidence of child rape and grave sexual abuse crime has shot up in recent years.

It must be pointed out that the police must act expeditiously. The time at which the police recorded the first information and the victim’s statement and their contents are very relevant at the trial against the accused. [vide section 444 of the Criminal Procedure Act].

In view of the rising trend in child sex crimes it is necessary to identify the police divisions with high incidence of child rape and grave sexual abuse of children and set up in the relevant police stations a special desk with a specially trained female officer in charge to handle matters relating to sex crimes. This is very important to dispel the belief that a victim gets abused twice over in the process of receiving justice.

In the case of police investigations apart from their lackadaisical approach, factors such as political interference, delay in obtaining medical reports and Government Analyst’s reports and difficulties in apprehending the wrong doer have been responsible for delays in handing over the investigation files to the A.G’s Department.

Video recording

Section 4 of the Evidence [Special Provisions] Act No. 32 of 1999 permits video recording of a preliminary inquiry to be led in evidence at the trial. It is important to make use of this facility to enable court to arrive to arrive at the right decision. It is equally important to apprehend the offender without delay specially in gang raping to avoid difficulties in identifying the suspect at a parade, delay in holding a parade where the offender was unknown to the abused child will affect the weight of evidence at the trial. The possibility is that at the end of the day the perpetrator or perpetrators will go scot free.

To combat and contain the upward trend in child sex cases better policing and strict enforcement of laws are prerequisites. Officers accused of dereliction of duty should be immediately dealt with. Apathy and callousness will no doubt aggravate the crime situation.

In H.C. Avissawella Case No. 11/ 2010 the accused was convicted of murder of seven-year-old daughter. Her body was discovered after some weeks hidden in a hole dug in the kitchen. According to the medical evidence there were injuries on her body indicating grave sexual abuse. She was living alone in the house with her father.

The learned High Court Judge in her judgement made on August 27 referred to the evidence of the mother to the effect that the accused used to beat the child and that she had on one occasion handed the child to the police fearing that her life would be in danger.

The learned judge said, ‘Even though this witness had handed over the child to the police thinking that thereby her life could be saved it was questionable whether the authorities did the needful’.

Predators

The police in New Delhi in their attempt to put a stop to sex attacks in school buses made it compulsory for the school bus and van drivers to display their identification prominently in the vehicle.

In addition they were required to remove tinting from the vehicle windows including window curtains. Plain clothed policemen have been deployed to monitor. Sri Lankan Police should seriously consider introducing such rules to our school vans and buses as well.

To crackdown on this menace of grave child sex crimes the police should explore the possibility of concluding their investigations within two months and forward their investigation files to the Attorney General. Now the law had been amended for the Attorney General to file direct indictment in the Provincial High Court. It has cut down the protracting non-summary proceeding stage.

Once the police investigation file is received the A.G. will process the material before him and prepare the indictment to be forwarded to the High Court. With his well-trained team of State Counsel there should not be any undue delay. If all these procedures are well attended and adhered to a time schedule action could be instituted within six months of committing the crime.

In child sex crimes delay always inures to the advantage of the accused. If there is a well set plan to prosecute the predator expeditiously without delay it will no doubt be a deterrent to the potential crime doer.

Addressing a recent gathering at a conference relating to child abuse an Additional Solicitor General has underscored the fact that ‘a victim of child abuse should be' given legal remedy within a short span of time to avoid prolonging such cases’.

Trial Court

There are two distinct problems the Provincial High Courts have to face nowadays. I have mentioned earlier in a previous article that during my tenure in office as High Court Judge of Kalutara 1991 to 1995 there wasn’t a single child rape or grave child abuse case. Before that when I was prosecuting in the High Courts of Avissawella, Ratnapura, Negombo, Chilaw, Galle, Kalutara and Negombo, I did not come across any such cases.

When I functioned as High Court Judge of Colombo [Court No.3] there were only two child rape cases. Now the situation is different. Trial roll in the High Courts are full of child rape and grave child abuse cases. Hence delay in hearing and disposing of cases is inevitable.

To be continued