Ethical Dilemma vs Legal Dilemma in a Case of Child Sexual Abuse

A nationwide survey carried out in 2007 by the Government of India reported that 53% of children had been subjected to one or more forms of sexual abuse and around 20% had experienced severe forms of sexual abuse. ¹ The Government of India enacted The Protection Of Children from Sexual Offences Act (POCSO) ² the very first legislation to shed light, ensure justice, and protect children from all types of sexual abuse. The Act covers punishment for both non-penetrative sexual assault and aggravated penetrative sexual assault while at the same time ensuring child-friendly procedures. Amongst the various provisions in POCSO, one provision is of “mandatory reporting” of child abuse cases. Reporting is made mandatory in such cases considering the fact that children are vulnerable and helpless, dependent on elders/caregivers and society has the duty to protect the interests of children. Also, since in most cases the perpetrators are known to children, families hide such incidences due to stigma, embarrassment, disbelief, and so on. Therefore, any person who has the knowledge or apprehension of such offenses taking place against children, the onus of responsibility lies with that person, and is liable to be punished for non-reporting of sexual offenses against children. Even after 10 years of enactment of POCSO, the acquittal rate is 43.33% and only 14.03% convictions according to an analysis carried out by the Justice, Access and Lowering Delays in India Initiative at Vidhi Centre for Legal Policy, in collaboration with the Data Evidence for Justice Reform program at the World Bank. One obvious reason for such low convictions is the witness turning hostile (due to undue pressure on the child, long drawn legal process)—and the only two witnesses in cases of child sexual abuse (CSA) are the victim and the perpetrator, in the majority of the cases.

To circumvent the problem of witnesses turning hostile, SAMVAD (Support, Advocacy & Mental Health interventions for children in Vulnerable circumstances and Distress; A National Initiative & Integrated resource for Child protection, Mental health & Psychosocial Care, Supported by the Ministry of Women & Child Development, Government of India) came up with a seven-step process for mandatory reporting which necessarily entails prioritizing mental health and well-being of the child aiding healing and recovery of the child, educating children about POCSO, addressing and allaying child’s fears and worries about reporting, negotiation regarding advantages and disadvantages of reporting without any coercion or undue pressure, preparing the child for the legal process that ensues, confidentiality and finally obtaining the child’s consent or assent for reporting, without any coercion. ³ In most cases, following these seven steps enables both the child and mental health professional to navigate difficult questions with comfort and ease. The entire process takes time and during this, proper documentation of the details of the case and procedures/processes being undertaken keeping in mind the best interest of the child are helpful in the court of law when one has to prove rationale for not “immediately” reporting of the abuse.

However, CSA is a complex societal phenomenon and despite having followed all laid down procedures, there are times of ethical vs legal dilemma.

Let us take the example of a case scenario: A 10-year-old girl was brought to outpatient child psychiatry services at a tertiary hospital with abrupt onset episodes of unresponsiveness without associated frothing, incontinence, clenching of teeth, abnormal body movements for a variable period ranging from 20 minutes to 2 hours, mostly at home and never occurred during sleep. No injury was ever sustained during these episodes. Pediatric neurology consultation revealed no abnormality. During a further evaluation, the child revealed that she has been touched inappropriately by her father (under the influence of alcohol) three times over 5 years, the first such encounter being when she was 5 years old. Her father who was intoxicated, made her lie upon himself (both with clothes on) and moved her body over his genitalia. She did not understand then, about the nature of the act. Again, a similar event happened when she was 7 and 8 years old, when her mother saw this and reprimanded him. She was reassured by the mother that her father does not get to know what he is doing because he is under the influence of alcohol. This child was doing fine until when she was 10 years old and during a discussion with one of her friends, she was told about the act of sexual intercourse and “yeh mummy papa ke beech mein hota hai, jisse bache hote hain.” The child was very distressed on having this information and since then started to have dissociative episodes. The father worked in paramilitary forces and would be home once a year for 1–2 months. Along with the management of her psychiatric condition, the seven-step process of mandatory reporting was followed. The child cooperated and gave details about the incidents of sexual assault but did not give consent as per the last step of this process. Her mother was educated about POCSO and the need for reporting but she also denied consent for reporting citing shame, embarrassment, financial dependence on father, stigma and future of the family and child, and that the father was not anywhere near the child and assured the treating team that she will take utmost care that such incident is not repeated. Any amount of education, concerns about the safety of child, confidentiality in the legal process, and so on. could not change her decision. The child although acknowledging the need to report and concerns about her safety, still wanted to go by whatever her mother had to say about reporting. In situations like this, a mental health professional encounters a legal obligation to report sexual abuse working in the best interest of the child, whereas on the other hand also understands to some extent the compulsion and helplessness of the mother while not consenting for reporting. So, in such a situation what should a professional do? How long can a professional wait before reporting? Will it be justified if it is not reported? Any situation where there is a chance of the incident being repeated (due to a family member being a perpetrator who is living with the child) should be reported. In this case, the perpetrator is the father but who is away for a job and meets the family once for 1–2 months. Considering this, should this be reported even when both the child and mother have not provided assent/consent for reporting. Will the reporting help anyway if the child and mother turn hostile witnesses? This becomes a difficult situation for the professional to navigate until all stakeholders responsible for the safety and security of children stand against this societal evil—and probably parents, especially mothers will have to become more courageous to stand up for their children.