The Supreme Court Judgment on 15 February 2017 forcing a video trial on Shahbuddin by transferring him to Tihar jail appears to violate his fundamental right to a fair trial, and to a trial in which he can participate fully. Being physically present inside the court-room is very different from being linked by video conference. In the latter situation, the jail authorities can essentially control when the accused can speak up in Court. His physical condition might also not be fully apparent to the Court and to observers present in Court. The State can misuse a video trial to deprive an accused of his right of full participation. The accused also has the right to observe court proceedings. An accused who is not present in the court-room cannot observe the judge, the witnesses, the lawyers, and everything else that happens in the court-room.
It is the job of the State to ensure a fair and open trial, and the accused ought not to be deprived of his defence rights because the State fails in its duty to provide a fair trial and to maintain law and order.
The Supreme Court should also have transferred the trials to Delhi.
The SC judgment cites the Subramanian Swamy defamation judgment and the balancing of rights doctrine which is a problematic doctrine and the way in which it is applied in Shahbuddin's case is also troubling.
In its decision, the SC also claimed that it could restrict Shahbuddin's fundamental rights under its broad and inherent powers to do justice. This is another position that the Supreme Court is increasingly adopting and the legitimacy of this position of the Court needs more analysis.
The judgment can be found at http://supremecourtofindia.nic.in/FileServer/2017-02-15_1487136730.pdf
Saturday, February 18, 2017
Saturday, February 11, 2017
Disturbing order from the Bombay High Court impugning a child sexual abuse victim
A woman judge of the Bombay High Court granted bail to an adoptive father accused by the adopted girl of prolonged child sexual abuse. The order dated 16th January 2017 disturbs and shocks in how it treats the complaint of child sexual abuse within an adoptive family and in how it labels the child victim as unnatural, as someone with deviant sexual instincts, and by implication as someone who cannot therefore be a victim of sexual abuse.
I take no issue with the grant of bail to the accused father pending trial. But as I point out below, the Court has without evidence and before trial and without even hearing the victim both judged and condemned the child victim as a sexual deviant who cannot be believed and whose aberrant and dangerous sexuality needs to be policed by the State by housing her in a custodial shelter even as an adult.
The facts that emerge from the order are as follows. The girl's mother was HIV positive and died in 2006 in a hospital. The girl who at that time was 9 years old or younger was abandoned in a Church compound and ended up in a Christian missionary institution in May 2006.
The Court order reveals that after admission to this "protective home" the girl at the age of 9 described her life history in a hand written note as requested by the supervisor of the home. Apparently the note disclosed that the girl had been exposed to sexual activity and/or that the girl was sexually aware and/or sexually active even at the age of 9.
The Bombay High Court Judge read this note written by the girl aged 9 (which is not reproduced in the order) and on that basis proceeded to condemn the child in these terms:
"Perused the statement written in the handwriting of the prosecutrix. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts rights from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother".
Paragraph 3 of the bail order appears to reproduce some facts. The order does not disclose exactly where the Court gets these facts from. The order states that the supervisor of the protective home observed unnatural behavior in the 9 year old girl, she received "several complaints from other inmates about the girl, and after that the supervisor of the home spoke to the girl, and (again in the uncorroborated) words of the Court "found that she had an unwarranted and unnatural behaviour". Note that the Bombay High Court did not examine the supervisor of the protective home who interacted with the victim more than 10 years ago, when the girl was aged 9.
Paragraph 3 also suggests that after interaction with the 9 year old girl, the protective home did not inform the Police of the likely sexual abuse and exploitation that the child appeared to have undergone, and neither did the protective home have the child examined by a psychiatrist or by an expert on child sexual abuse.
Instead it appears as if the protective home washed its hands off a disturbed and probably sexually abused girl-child by hurriedly giving up the child in adoption to a woman who knew the girl's mother and to her husband. The adoptive parents were apparently made aware of the girl's "abnormal behaviour" and the order records that the wife was "hopeful" that the child would improve her behaviour after getting love and education. Once again the Court order does not disclose where it obtains these facts from. It is also unclear if this was a legal adoption or if the child was simply handed over to this couple.
In her complaint made to an NGO when she was 17 years old, the girl disclosed that her adoptive father had begun to sexually abuse her when she was in class VI, i.e., from when she was around 12 or 13 years old; and that he continued to sexually abuse her until she was around 17, when she spoke out using a phone help-line for children run by the NGO.
The Bombay High Court decision goes on to declare, without a trial, without examining the girl or other witnesses, and at the stage of hearing a bail application, that the statement of the girl does not appear to be truthful and "does not inspire confidence of this Court". The only basis for this conclusion is the Judge's finding that the child was "inherently abnormal and had sexual instincts rights from her childhood" and this is based solely upon the note written by the girl at age 9. The Bombay High Court then proceeds to grant bail to the father. Note below the reasons that the Court cites for granting bail.
(i) The victim was 17 years old when she complained and there was a delay. i.e. a considerable lapse of time after she was allegedly first abused by her father.
(ii) The victim did not complain to the supervisor of the protective home.
(iii) The statement of the victim does not appear to be truthful.
(iv) The accused is in jail for 15 months, the investigation is complete, the charge-sheet has been filed.
(v) The victim is in the "protective custody" of the State in another protective home where she has been lodged because of her "abnormal behaviour" even though she is now an adult.
(vi) The accused is entitled to bail because of the history of the victim.
I reiterate that the objection is not to the Court granting bail to the father. An accused is entitled to bail especially after the investigation is complete and if the accused is not likely to obstruct the trial or destroy evidence or intimidate witnesses, etc.
But the objection is to the "determination" by the Bombay High Court that the victim was a sexually abnormal child and is now a sexually abnormal woman, who cannot be believed and who cannot have been sexually abused. The Court refers to the investigation papers; to the note written by the girl aged 9; and to a statement by the supervisor of the protective home where the girl ended up at age 9 and which handed her over to the man, now accused of sexually abusing her over a period of 4-5 years when she was in his custody and living in his home. The Court did not speak to the victim who was probably not even produced before the Court. We never learn what kind of abnormal sexual behaviour the girl (and now the woman) exhibited. But the girl did live in this family for 8 years and possibly also attended school. How socially aberrant can her behaviour have been that requires her to be locked up in the State's protective custody even as an adult and even after the father is released on bail. And how aberrant is her sexual behaviour if she was aware of the fact of her sexual exploitation and sought the help of a child protection NGO to fight back.
The Bombay High Court has grievously erred in this case. It ought to have sought the opinion of a psychiatrist specializing in child abuse. The girl seems to have spent her early years with her mother where she was exposed to sexual activity and very likely was also sexually abused herself or was groomed for sexual exploitation. Her mother's circumstances or occupation are unknown. There was no natural father in the picture. Abandoned, the 9 year old ended up in a missionary-run protective home, where the supervisor learnt about the signs pointing to previous sexual abuse of this child, but did not report the matter to the Police. The child did not get access to any specialized psychiatric care for abused children nor was she medically examined for sexual abuse. Instead, the protective home hurriedly got rid of a difficult child by handing her over to a family that was probably not vetted properly. In what capacity did the adoptive mother know the child's real mother? Were the adoptive parents aware of the circumstances of the child's likely sexual abuse before she arrived at the missionary-run protective home at age 9? Was the adoption a convenient solution by the protective home to a potentially disruptive situation involving the Police if the child had continued at the protective home?
It was both insensitive and improper of the Bombay High Court to describe a 9 year old child's disclosure of sexual knowledge and/ or activity as "dirty things" or as abnormal behaviour. Sexual behaviour or sexual knowledge in such a child would suggest the likelihood that the child was either abused herself or was being groomed for abuse. Such a child would be even more susceptible to further sexual abuse because of her distorted sense of self and of appropriate adult-child relationships. She would therefore require specialized counselling, a safer environment. and protracted supervision of her environment to ensure that she is not exploited further. Instead, this 9 year old child was let down terribly by the protective home and by the State.
One must ask what possible conduct in a 9 year old child in a protective home could be called "dirty"? Did the child talk about sex? Did she describe sexual activity? Did she physically expose herself? Did she masturbate? What possible sexual conduct of a 9 year old girl would render her liable to be labelled an inherently abnormal sexual deviant for life? Or labelled as a female with abnormal sexual instinct? The concerned Judge of the Bombay High Court who reached these conclusions should be directed to read some books on child abuse and to attend a course run by professionals who work with child abuse victims.
This girl lived with her adoptive family for 8 years. There is nothing to show that the parents considered her behaviour abnormal during these 8 years. Did they ever seek counselling for her? Did she attend school? What was her behaviour like in school? If her behaviour was so abnormal, then surely the school would have raised the issue.
Yet, after the girl speaks out at age 17 that her adoptive father has sexually abused her for the last 5-6 years, she suddenly becomes such a threat to society because of her "abnormal" sexual behaviour that she has to be confined in a protective home even as an adult.
And why is the Judge surprised that a child victim of sexual abuse (within the family) that starts at age 12-13 waits until age 17 to speak out. Is this not common and entirely explicable? And how could and why would a 13 year old child living in the custody of her adoptive parents at their home approach the supervisor of the protective home that handed her over to the same parents at age 9? What reason would such a child have to trust or approach the supervisor? Why does the Judge not appreciate the difficulty such a child would have in speaking out especially if she had a distorted sense of self because of earlier sexual abuse and against a parent who exerted power over her and who allegedly exploited her distorted sense of self for his own sexual gratification?
And why does the Judge not question the need for the adult victim to be housed in protective custody because of what the Judge assumes is her "abnormal behaviour". What kind of "abnormal behaviour" requires an adult woman to be locked up. The Bombay High Court sets the male accused free. He will get a trial and a hearing. But the female victim is locked up ostensibly for her own good and without recourse to any hearing or trial? Has the woman undergone any psychiatric examination? Why is she in custody? What has she done that makes her adult sexual behaviour abnormal? Given the recent news reports on the horrors of State run welfare and protective homes in India (see the Asha Kiran expose), is housing her in such a State-run protective home in her best interest.
The Bombay High Court has not only violated well established principles of bail law, child protection law, and sexual offences law in its order, but it has also condemned the child sexual abuse victim as a liar and as sexually abnormal and it has done this without even hearing her. This Bombay High Court order destroys the life and reputation of this girl forever. Someone needs to challenge this order before the Supreme Court of India even if the State won't. The order should be challenged not on the issue of grant of bail to the accused, but because of the defamatory statements made by the Judge about the victim, which will not only prejudice the trial, but which wrongly label this young woman as sexually deviant and dangerous.
The Bombay High Court order is yet another example of how the Law, Indian judges, the Indian police and the criminal justice system approach the issue of the sexual past of a victim of sexual crime; of how female victims are often painted as liars; of how the paternalistic State steps in to police female sexuality; and of how inconvenient women are simply removed from society and incarcerated in protective homes ostensibly for their own protection, but where they languish forgotten until they die.
The Bombay High Court order can be read at https://drive.google.com/file/d/0BzXilfcxe7yudGlDSHZ0djVydHM/view
I take no issue with the grant of bail to the accused father pending trial. But as I point out below, the Court has without evidence and before trial and without even hearing the victim both judged and condemned the child victim as a sexual deviant who cannot be believed and whose aberrant and dangerous sexuality needs to be policed by the State by housing her in a custodial shelter even as an adult.
The facts that emerge from the order are as follows. The girl's mother was HIV positive and died in 2006 in a hospital. The girl who at that time was 9 years old or younger was abandoned in a Church compound and ended up in a Christian missionary institution in May 2006.
The Court order reveals that after admission to this "protective home" the girl at the age of 9 described her life history in a hand written note as requested by the supervisor of the home. Apparently the note disclosed that the girl had been exposed to sexual activity and/or that the girl was sexually aware and/or sexually active even at the age of 9.
The Bombay High Court Judge read this note written by the girl aged 9 (which is not reproduced in the order) and on that basis proceeded to condemn the child in these terms:
"Perused the statement written in the handwriting of the prosecutrix. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts rights from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother".
Paragraph 3 of the bail order appears to reproduce some facts. The order does not disclose exactly where the Court gets these facts from. The order states that the supervisor of the protective home observed unnatural behavior in the 9 year old girl, she received "several complaints from other inmates about the girl, and after that the supervisor of the home spoke to the girl, and (again in the uncorroborated) words of the Court "found that she had an unwarranted and unnatural behaviour". Note that the Bombay High Court did not examine the supervisor of the protective home who interacted with the victim more than 10 years ago, when the girl was aged 9.
Paragraph 3 also suggests that after interaction with the 9 year old girl, the protective home did not inform the Police of the likely sexual abuse and exploitation that the child appeared to have undergone, and neither did the protective home have the child examined by a psychiatrist or by an expert on child sexual abuse.
Instead it appears as if the protective home washed its hands off a disturbed and probably sexually abused girl-child by hurriedly giving up the child in adoption to a woman who knew the girl's mother and to her husband. The adoptive parents were apparently made aware of the girl's "abnormal behaviour" and the order records that the wife was "hopeful" that the child would improve her behaviour after getting love and education. Once again the Court order does not disclose where it obtains these facts from. It is also unclear if this was a legal adoption or if the child was simply handed over to this couple.
In her complaint made to an NGO when she was 17 years old, the girl disclosed that her adoptive father had begun to sexually abuse her when she was in class VI, i.e., from when she was around 12 or 13 years old; and that he continued to sexually abuse her until she was around 17, when she spoke out using a phone help-line for children run by the NGO.
The Bombay High Court decision goes on to declare, without a trial, without examining the girl or other witnesses, and at the stage of hearing a bail application, that the statement of the girl does not appear to be truthful and "does not inspire confidence of this Court". The only basis for this conclusion is the Judge's finding that the child was "inherently abnormal and had sexual instincts rights from her childhood" and this is based solely upon the note written by the girl at age 9. The Bombay High Court then proceeds to grant bail to the father. Note below the reasons that the Court cites for granting bail.
(i) The victim was 17 years old when she complained and there was a delay. i.e. a considerable lapse of time after she was allegedly first abused by her father.
(ii) The victim did not complain to the supervisor of the protective home.
(iii) The statement of the victim does not appear to be truthful.
(iv) The accused is in jail for 15 months, the investigation is complete, the charge-sheet has been filed.
(v) The victim is in the "protective custody" of the State in another protective home where she has been lodged because of her "abnormal behaviour" even though she is now an adult.
(vi) The accused is entitled to bail because of the history of the victim.
I reiterate that the objection is not to the Court granting bail to the father. An accused is entitled to bail especially after the investigation is complete and if the accused is not likely to obstruct the trial or destroy evidence or intimidate witnesses, etc.
But the objection is to the "determination" by the Bombay High Court that the victim was a sexually abnormal child and is now a sexually abnormal woman, who cannot be believed and who cannot have been sexually abused. The Court refers to the investigation papers; to the note written by the girl aged 9; and to a statement by the supervisor of the protective home where the girl ended up at age 9 and which handed her over to the man, now accused of sexually abusing her over a period of 4-5 years when she was in his custody and living in his home. The Court did not speak to the victim who was probably not even produced before the Court. We never learn what kind of abnormal sexual behaviour the girl (and now the woman) exhibited. But the girl did live in this family for 8 years and possibly also attended school. How socially aberrant can her behaviour have been that requires her to be locked up in the State's protective custody even as an adult and even after the father is released on bail. And how aberrant is her sexual behaviour if she was aware of the fact of her sexual exploitation and sought the help of a child protection NGO to fight back.
The Bombay High Court has grievously erred in this case. It ought to have sought the opinion of a psychiatrist specializing in child abuse. The girl seems to have spent her early years with her mother where she was exposed to sexual activity and very likely was also sexually abused herself or was groomed for sexual exploitation. Her mother's circumstances or occupation are unknown. There was no natural father in the picture. Abandoned, the 9 year old ended up in a missionary-run protective home, where the supervisor learnt about the signs pointing to previous sexual abuse of this child, but did not report the matter to the Police. The child did not get access to any specialized psychiatric care for abused children nor was she medically examined for sexual abuse. Instead, the protective home hurriedly got rid of a difficult child by handing her over to a family that was probably not vetted properly. In what capacity did the adoptive mother know the child's real mother? Were the adoptive parents aware of the circumstances of the child's likely sexual abuse before she arrived at the missionary-run protective home at age 9? Was the adoption a convenient solution by the protective home to a potentially disruptive situation involving the Police if the child had continued at the protective home?
It was both insensitive and improper of the Bombay High Court to describe a 9 year old child's disclosure of sexual knowledge and/ or activity as "dirty things" or as abnormal behaviour. Sexual behaviour or sexual knowledge in such a child would suggest the likelihood that the child was either abused herself or was being groomed for abuse. Such a child would be even more susceptible to further sexual abuse because of her distorted sense of self and of appropriate adult-child relationships. She would therefore require specialized counselling, a safer environment. and protracted supervision of her environment to ensure that she is not exploited further. Instead, this 9 year old child was let down terribly by the protective home and by the State.
One must ask what possible conduct in a 9 year old child in a protective home could be called "dirty"? Did the child talk about sex? Did she describe sexual activity? Did she physically expose herself? Did she masturbate? What possible sexual conduct of a 9 year old girl would render her liable to be labelled an inherently abnormal sexual deviant for life? Or labelled as a female with abnormal sexual instinct? The concerned Judge of the Bombay High Court who reached these conclusions should be directed to read some books on child abuse and to attend a course run by professionals who work with child abuse victims.
This girl lived with her adoptive family for 8 years. There is nothing to show that the parents considered her behaviour abnormal during these 8 years. Did they ever seek counselling for her? Did she attend school? What was her behaviour like in school? If her behaviour was so abnormal, then surely the school would have raised the issue.
Yet, after the girl speaks out at age 17 that her adoptive father has sexually abused her for the last 5-6 years, she suddenly becomes such a threat to society because of her "abnormal" sexual behaviour that she has to be confined in a protective home even as an adult.
And why is the Judge surprised that a child victim of sexual abuse (within the family) that starts at age 12-13 waits until age 17 to speak out. Is this not common and entirely explicable? And how could and why would a 13 year old child living in the custody of her adoptive parents at their home approach the supervisor of the protective home that handed her over to the same parents at age 9? What reason would such a child have to trust or approach the supervisor? Why does the Judge not appreciate the difficulty such a child would have in speaking out especially if she had a distorted sense of self because of earlier sexual abuse and against a parent who exerted power over her and who allegedly exploited her distorted sense of self for his own sexual gratification?
And why does the Judge not question the need for the adult victim to be housed in protective custody because of what the Judge assumes is her "abnormal behaviour". What kind of "abnormal behaviour" requires an adult woman to be locked up. The Bombay High Court sets the male accused free. He will get a trial and a hearing. But the female victim is locked up ostensibly for her own good and without recourse to any hearing or trial? Has the woman undergone any psychiatric examination? Why is she in custody? What has she done that makes her adult sexual behaviour abnormal? Given the recent news reports on the horrors of State run welfare and protective homes in India (see the Asha Kiran expose), is housing her in such a State-run protective home in her best interest.
The Bombay High Court has not only violated well established principles of bail law, child protection law, and sexual offences law in its order, but it has also condemned the child sexual abuse victim as a liar and as sexually abnormal and it has done this without even hearing her. This Bombay High Court order destroys the life and reputation of this girl forever. Someone needs to challenge this order before the Supreme Court of India even if the State won't. The order should be challenged not on the issue of grant of bail to the accused, but because of the defamatory statements made by the Judge about the victim, which will not only prejudice the trial, but which wrongly label this young woman as sexually deviant and dangerous.
The Bombay High Court order is yet another example of how the Law, Indian judges, the Indian police and the criminal justice system approach the issue of the sexual past of a victim of sexual crime; of how female victims are often painted as liars; of how the paternalistic State steps in to police female sexuality; and of how inconvenient women are simply removed from society and incarcerated in protective homes ostensibly for their own protection, but where they languish forgotten until they die.
The Bombay High Court order can be read at https://drive.google.com/file/d/0BzXilfcxe7yudGlDSHZ0djVydHM/view
Subscribe to:
Posts (Atom)