Millennium Post

Compassion towards minors

While children, with certain limitations, are considered legitimate witnesses, the burden of testifying in courtrooms could inflict trauma upon them

Compassion towards minors

The Bombay High Court recently acquitted a man who was accused of rape and sexual harassment. The man had been charged under the sections 376 and 354 (A) (1) (i) of the Indian Penal Code and sections 4 and 8 of the Protection of Children from Sexual Offences (POCSO) Act. While acquitting the man, the court said the child is "prone to telling imaginative and exaggerated stories".

A question arises here irrespective of the verdict: What would have been the extent of mental and emotional stress that the child went through even if she was not tutored by her parents to speak against the accused?

Child abuse or maltreatment constitutes all forms of physical and / or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child's health, survival, development or dignity in the context of a relationship of responsibility, trust or power.

In the context of the case in discussion, the child may have gone through stress that tends to have an impact on the early brain development as well as the development of the nervous and immune systems in the long run.

The first instance ever of a child being allowed to provide courtroom testimony was seen in the 1895 United States Supreme Court case — Wheeler vs United States — allowing a five-and-a-half-year-old child to serve as a witness in a view to provide trustworthy evidence.

The court, however, laid down clearly that the dependence on a child witness is contingent upon the capacity and intelligence of the child as well as his / her appreciation of the difference between truth and false.

Similarly, under the Section 118 of the Indian Evidence Act, 1872, all persons, including a child, are considered to be competent as a witness in the court of law if the child is able to understand the questions and respond rationally to those.

Both the above scenarios resonate with the aim of Article 12 of the Convention on the Rights of Child that mandates the state parties to assure the child the right to express their views freely in all matters affecting them, keeping in mind the age and maturity of the child.

However, at the core of the issue remains the impact on the child of testifying before the court of law. The child experiences anxiety while facing the judge and, worse, he / she faces the fear of facing the defendant that further aggravates other related fears like the possibility of being hurt by the defendant, getting embarrassed before people in case of not being able to answer or due to crying, apart from the most traumatic fear of going to jail.

What this means is that the advocates questioning the child must be compassionate enough and explain the proceedings to the child in an understandable and convincing manner.

The role of medical practitioners assumes great significance in such cases as they are the ones who can elicit a child's core concerns, assure the child that he or she will not be ill-treated during the procedure and also help the family members to acquaint the child with the procedures of court.

In the larger interest, such steps will help prevent occurrence of what is known as Type I and Type II trauma exposure — based on traumatic events, adversities and day-to-day stressors.

In practice, Type I trauma generally refers to a one-time horrifying and life-endangering experience. On the other hand, Type II trauma refers to stresses and adversities faced on a day-to-day basis that can occur in cases of appeal where the child needs to endure the pain of testifying repeatedly. The latter can happen in the present case as well if the appeal is brought before the Supreme Court of India.

The need of the hour is to take proactive steps in this direction by putting in place an active problem-solving mechanism for the affected children. A slew of corrective measures can help reduce the impact on the children's mental health caused by contact with the criminal justice system and ensure the best interests of children, as defined under Article 3 of the Convention on the Rights of Child.

Furthermore, there is an urgent need to specially train the prosecutors and government officials who handle such cases where a child is a victim or witness to the reported crime or abuse. DTE

Views expressed are personal

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