Child sexual assault is still a constant threat to a just society. Sexual abuse victims face a social stigma for the rest of their lives, which leads to a lack of reporting of cases.This research paper aims understand the key role played by the forensic evidences in determining the rights of victim and and punishing the offenders. With the advancement in science and technology, forensic evidences can be better analysed. Forensic evidences, including forensic linguistics, blood, DNA etc, play an important role in determining the rights of the child victim and prosecuting the child sexual abuse offenders. Child sexual abuse involves any act with child before the legal age of consent (considered to be 18 years in India), including engaging in sexual acts with a child, inappropriate exposure, child pornography, and incest. In India, The Protection of Children from Sexual Offences Act, 2012, governs all the cases relating to sexual abuse cases on minors.
KEYWORDS
Child Sexual Abuse, POCSO, Forensic linguistics, Forensic Evidences, Child Rights.
INTRODUCTION
“Safety and Securities don’t just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society a life free of violence and fear. “
-Nelson Mandela
Child abuse is not a problem restricted to the state borders of India, but is a problem that surfaces the globe. Child abuse may be physical, emotional, mental, or sexual. Abuse in any form may hurt children, diminish their sense of self-worth, diminish their dignity, and impede their progress. As a result, child abuse is an issue that endangers children’s health and well-being. It scars the future of children and may result in life-long trauma. In this research paper, the author deals with the sexual aspect of child abuse.Child sexual abuse is addressed via a number of national and international laws and conventions. Some international declarations and agreements on child abuse may include the Declaration of the Rights of the Child, 1959, which prioritizes child protection and prohibits all forms of abuse, exploitation, and neglect against children. We also have the 1989 Convention on the Rights of the Child, which was adopted by the United governments General Assembly with the primary purpose of outlining governments’ humanitarian and political obligations to their children.
We have the Protection of Children from Sexual offenses Act, 2012 in India, which preserves children’s rights and interests and protects them from sexual offenses. The act establishes a strong foundation for dealing with issues and incidents of child sexual abuse in India.
The punishment in grievous penetrative assault may vary from 20 years and extend upto life imprisonment.
In the modern times, with the development in science and Technology, Forensic Evidences can be better analysed and have turned out to play a very important role in prosecuting Child Sexual Abuse offenders and safeguarding the rights and interests of the victim. A thorough forensic medical examination is crucial in conducting a complete investigation of such incidents and developing an effective case in court. Forensic evidences may include hair, blood, semen, fingerprint. Handwriting analysis may also form a part of forensic evidences. Forensic linguistics may include linguistic knowledge, stylometry, forensic phonetics and discourse analysis. Medical examinations, DNA testing, and other forensic methods can produce verifiable proof to support or refute the victim’s account. Forensic evidence serves as an objective and scientific means to corroborate the testimony of child victims. In this research paper, the author examines the role of Forensic Evidences in prosecuting child sexual abuse offenders and determining the rights of victims under the POCSO Act.
RESEARCH METHODOLOGY
This research is doctrinal in nature. Various secondary sources have been used to understand various concepts. In this researcher, the author has referred to various research papers, journals, and various websites related to the topic. The researcher has used the descriptive and explanatory research methodology. Various case laws have also been included in the research paper. The researcher has analysed the role of forensic evidences in POCSO cases.
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012: BACKGROUND AND OBJECT
A wide spectrum of child sexual abuse crimes exists, with гape, assault, sexual harassment being the most horrific and serious sort of human rights violation, as well as a major social issue in many nations. In addition to causing bodily injury, sexual abuse of children also tarnishes their most precious assets, including their honour, dignity, reputation, and—above all—their chastity.
The laws that were in place in India, earlier, did not sufficiently handle child sexual abuse; many of these offences were neither sufficiently penalised, nor effectively compensated for. As a strong deterrence, such offences against children must be properly identified and addressed with suitable penalties. Article 15 of the constitution, for example, gives the state the authority to establish particular measures for children. Furthermore, Article 39 states, inter alia, that the state shall focus its policies on ensuring, among other things, that children’s tenderness is not mistreated, that their childhood and adolescence are protected from exploitation, and that they are provided with the means to grow up in a healthy, free, and dignified manner.
“The POCSO Act provides for protection of children from offences of sexual assault, sexual harassment and child pornography with due regard for safeguarding the interests and well being of children at every stage of judicial process, incorporating the procedures of child-friendly reporting, recording of evidences, investigation, and trial of offences. The act provides for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.”
FORENSIC EVIDENCES
Black’s law Dictionary defines Forensic Evidences as “Evidence that can be used in a court based on science. It can be blood tests, ballistics, and DNA.”
Forensic Evidences may include physical findings such as clothing, bleeding etc, biological evidences like swab, hair, blood, touch DNA etc. Forensic psychology may help determine the behaviour of victim, accused and other people associated with case. A psychological understanding of the trauma faced by the victim can help determine the extent and severity of the abuse. In cases of severe abuse, resulting into death, forensic pathology may be used to determine the cause of death and identify such factors which may be relevant to the sexual abuse. Forensic Toxicology helps in examining the forensic evidences to check for the presence of drugs or any other toxic substances. Conducting child forensic interviews by trained officials may help obtain detailed information about the abuse, while ensuring no stress or trauma to the victim, in order to facilitate legal proceedings.
POCSO ACT- INTEGRATION OF FORENSIC EVIDENCE
The POCSO Act does not explicitly provide for any provisions to deal with the forensic evidences, although the act relies on other provisions to incorporate forensic evidences. For eg.
- Medical Examination– Section 27 of the POCSO Act provides for medical examination of the child victim. The section mandates the medical examination of child in case of sexual abuse. These medical examinations may shed light on physical injuries suffered by the victim, collection of biological evidences such as swab, semen etc, and determining the nature of injury on the person of victim.
- Forensic Evidences– Rule 5(5) of the POCSO Rules requires that any forensic evidence acquired while providing emergency medical care be obtained in conformity with Section 27 the Act.
- Responsibility of Medical Professionals– Rule 3 (3.1) of the POCSO Rules, outlines the responsibility of Medical Professionals in the context of the POCSO Act of 2012. These medical experts’ testimonies are subject to cross-examination. When a doctor is being cross-examined in a POCSO case, it is critical to consider the child victim’s mental state. The lawyer should focus on obtaining credible and authentic testimony rather than asking questions that could be construed in a way that would traumatize the child victim.
- Recording Statement- The act allows the recording of statement of vicim under S.164 Cr.P.C., this may call for involvement of Forensic experts in order to record the statement of the victim in a sensitive and legally admissible manner.
ROLE OF FORENSIC EVIDENCE IN ESTABLISHING ABUSE
Among the most crucial components of the medical assessment in cases of reported sexual assault are the gathering and analysis of forensic evidence as well as genital examinations. Seminal fluid is the most significant biological and DNA evidence in cases of sexual assault. In addition to semen, other biological evidence that may be a possible source of the accused’s DNA profile include pubic hair, bodily fluids, and skin cells found on the child victim’s body or clothing. The victim’s fingernails may include skin cells from the accused in situations involving hand-genital contact or physical altercations between the accused and the minor victims. When gathered, stored, and examined appropriately and promptly, these biological evidences can yield the accused’s DNA profile, which helps in the conviction process.
The child’s disclosure is frequently the most important piece of information in determining the potential of abuse. There is a range of injuries, from new cuts and bruises to signs of physical abuse that has been sustained over time, as well as old scars and healing wounds of all kinds. Forensic examination also includes assessments of the victim’s emotional maturity, anogenital examination of the female child victim and male child victim, and form a part of forensic examination.
DNA and non-DNA forensic evidence is useful throughout the criminal justice process, from investigation to judgment. More tools may become accessible as technology and testing techniques progress, may grow, and the benefits of forensic analysis on various types of evidence may be recognized earlier in investigations. Forensic evidence is frequently used to support or contradict factual claims in sexual assault proceedings.
Forensic evidences have been used in vast number of cases to determine the rights of the victims and also the accused. Some of these cases are discussed hereunder.
In the case of Ravi v. State of Maharashtra, a two-year-old girl was allegedly raped by the appellant. “Nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails and other blood samples” were among the forensic evidences that medical professionals examined. Ultimately, the forensic examination led to the appellant’s conviction.
In the case of Lalmalsom Kaipeng v. State of Tripura, Smt. Rupali Majumder, a Scientific Officer of the State Forensic Science Laboratory, examined over the forensic exhibits related to this case, including the external and internal vaginal swabs, a small short hair, the victim’s dry blood sample, the victim’s long pants, the victim’s light purple shirt, the accused-appellant’s pubic hair (cut), pubic hair (combed), and the accused-appellant’s dry blood sample. The examination’s outcome was as follows:—
Serum stain, spermatozoa, or blood stain of human origin could not be detected. Human hair was found, although the location of the hair was not found.
In light of the preceding analysis of the law and the forensic evidence, Hon’ble court was of the view that the appellant is entitled to the benefit of the doubt. As a result, Sri. Lalmalsom Kaipeng, the convict-appellant, was released from custody after being found not guilty of the allegations brought against him. In this case Forensic Evidences played an important role in determining the rights of the accused.
It is necessary that the forensic evidences are collected and examined in due time. The same was highlighted and upheld in the case of S P Kohli v High Court of Punjab & Haryana. In the given case, the smegma lost all its importance after the lapse of 24 hours of performance of sexual intercourse.
FORENSIC LINGUISTICS
Black’s Law Dictionary defined Forensic linguistics as “A technique concerned with in depth evaluation of linguistic characteristics of text, including grammar, syntax, spelling, vocabulary and phraseology, which is accomplished through a comparison of textual material of known and unknown authorship, in an attempt to disclose idiosyncracies peculiar to authorship to determine whether the authors could be identical.”
Forensic linguistics may include linguistic knowledge, stylometry, forensic phonetics and discourse analysis. In many situations, forensic linguistics is utilized to compare the accused’s writing style, vocabulary, and linguistic competence to the relevant evidence. To better comprehend this concept, consider the following scenario: 07 cases of child pornography have been recorded in various places across India, with the offender consistently blackmailing the children via email. Now, a detailed examination of all of these emails, along with writing samples from all of the suspects, can assist us in determining who the actual culprit is. This is how forensic linguistics can assist in the resolution of various child sexual abuse cases.
CASE LAWS- FORENSIC EVIDENCES
In the case of State of Karnataka vs. Manjanna, Hon’ble Supreme Court emphasised on the importance of conducting Forensic examination, the Court ruled that a police requisition isn’t necessary for conducting forensic examinations and providing care to survivors of sexual violence, and that health providers ought not to turn survivors away for failing to register a FIR. Further on procedure, In the case of Dilip vs. State of Madhya Pradesh, Hon’ble Supreme Court laid down the correct procedures to be followed while collecting and analysing forensic medical evidence in cases of sexual assault. The court further emphasised on the role of Director General of Police and Home Ministry of State in issuing proper guidelines for such forensic medical examination and also included, physical and psychological treatment.
In the case of The State Govt. of NCT of Delhi v. Khursheed, Hon’ble apex court upheld that Forensic Science Laboratory(FSL) Report, is a conclusive proof, thereby relying stress on the role of Forensic Evidences in sexual abuse cases. Court also further placed reliance on Piara Singh v. State of Punjab, wherein it was held that in case of multiple reports, the report having direct connection to the evidences shall be taken into consideration. Further, In the case of, Mohd. Azizul v. State, Hon’ble Delhi High Court dealt with a case of rape of a three year old minor, the case was brought about under the POCSO Act, 2012. Forensic Evidence of DNA played a crucial role in prosecuting the accused, the DNA profile generated from the accused’s sample was similar to the DNA profile generated from the victim’s underwear in the second FSL report. On the reliability of the forensic evidences, we see, In the case of Chhedi Paswan v. State, Hon’ble Delhi High Court held that “Forensic evidence fully establishes the case of the prosecution beyond any pale of doubt”. The FSL report backed up the prosecution’s claim that the accused sexually assaulted the victim. The prosecutrix’s hymen was not found to be intact. Forensic evidence confirms the prosecution’s case beyond the shadow of reasonable doubt.
SUGGESTIONS
It is imperative to meticulously document crucial details surrounding instances of assault, encompassing the specific location, time, type of force employed, and areas of contact. Swift examination of forensic evidence is vital to preserve its integrity. Noteworthy activities such as bathing, micturating, washing genitals, rinsing mouth, and consuming food or drink, particularly in cases of oral sexual assault, should be meticulously recorded. Every sexual abuse victim must undergo a comprehensive forensic medical examination and receive requisite medical care. Corroboration of the assault history through medical examination, including details such as ejaculation and condom usage, can significantly bolster the case. Additionally, the mental status of the victim must be a focal point during the medical examination and collection of forensic evidence. A trauma assessment, delving into the psychological impact on the victim, is paramount. In furtherance of comprehensive care, it is recommended to establish supportive channels for victims, including counseling services and legal advocacy. Additionally, ongoing training for medical professionals in the nuances of handling sexual assault cases can enhance sensitivity and efficacy in such examinations. Employing advanced forensic technologies for evidence analysis is another avenue to explore, ensuring a robust and thorough investigative process.
CONCLUSION
Finally, a look at how forensic evidence has been used in prosecuting child sexual abuse cases under the Protection of Children from Sexual Offenses (POCSO) Act highlights the relevance of forensic methodologies in bringing victims to justice. Forensic evidences have proven to be extremely helpful in determining the rights and interest of victim and prosecuting the child sexual abuse offenders. With the advancement in science and technology, the reliability on forensic evidences have increased. The different forensic evidences assist in establishing facts, correlating victim testimony, and identifying and prosecuting criminals. Forensic evidence is used to corroborate the statement of child victims in an impartial and scientific manner. Throughout the paper, the author has analysed the different types of forensic evidences. Various cases have been presented in paper wherein the role of forensic evidences have been emphasised by the Hon’ble courts. A crucial observation during the study lays emphasis on ensuring the mental health of the victim, determining the role of psychiatric and psychologists in reducing post incident trauma and preventing the abuse from scarring the lives of victims. The paper also discusses the budding field of Forensic Linguistics and its application in the field of Law and in determining the rights of victims. A collective effort involving forensic experts, medical professionals, social workers, psychologists, and legal authorities not only bolsters evidentiary foundations but also prioritizes the holistic well-being and support crucial for the victims’ recovery.
ARYA MISHRA
MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR.