Post-Kathua Law Sees Increased Reporting of Child Sexual Abuse In Kashmir

Moazam was arrested on August 18, charged under sections 377 (punishment for unnatural offences) and 506 (punishment for criminal intimidation) of the Indian Penal Code (IPC) and sections 3 and 4 (punishment for penetrative sexual assault) and 14 (punishment for using a child for pornographic purposes) of the Protection of Children from Sexual Offences (POCSO) Amendment Act, 2019.

"We filed a First Investigation Report (FIR) in this case (51/2020) at Imam Sahib Police Station and Moazam has been charged under the POCSO Act, since both complainant and accused are minors," Imitiyaz Ahmed, sub-inspector, Shopian, confirmed to IndiaSpend. Moazam was granted bail after spending 10 days at a juvenile detention centre in Srinagar.

This case is among 343 cases of child sexual abuse (CSA) reported in J&K between January and November 2020, according to official data from district Child Welfare Committees, accessed by IndiaSpend. The union territory has seen a spike in reporting of CSA cases in the two years since J&K enacted its own Protection of Children from Sexual Violence Act (J&K POCS Act) in December 2018, after a furore following the gangrape, torture and murder of an eight-year-old girl in Kathua, Jammu, in January 2018.

There was a more than five-fold increase in reporting of CSA cases in the Kashmir division in 2019, compared to average cases over the four previous years.

Restricted movement in Kashmir caused by first the security clampdowns after Article 370 was abrogated in August 2019, and then by the countrywide lockdown to control the spread of COVID-19, would likely lead to more cases of sexual abuse of children, child welfare experts told IndiaSpend. Kashmir has seen a further spike of 52% in reported CSA cases by November in 2020, compared to 2019.

The central government's Child Protection Services Scheme (CPS scheme; formerly the Integrated Child Protection Scheme) was extended to J&K in January 2018, in the immediate aftermath of the Kathua case. The CPS scheme is aimed at providing a secure, protective environment for vulnerable children, including those in situations of abuse. With the revocation of Article 370 in August 2019, the J&K POCSO Act was repealed and replaced by the POCSO (Amendment) Act, 2019.

The increased reporting of CSA cases in Kashmir is attributed to both the new J&K POCS Act, 2018 followed by the POCSO (Amendment) Act, 2019, and improved monitoring and tracking systems after implementation of the CPS, experts told us. The increase matches a similar trend in the rest of India after the POCSO Act was first introduced in 2012, studies show.

Signs of change

Barriers to reporting of child abuse cases in the rest of India, particularly against persons in a position of authority known to the child, are also endemic in Kashmir, say experts.

When Irfan came home crying, in bloodstained clothes, his family asked what had happened. Irfan would not reply, but locked himself in the bathroom and cried for a long time. "When Irfan finally came out, he broke down in his father's lap and, shivering, told us what had happened," Irfan's mother told IndiaSpend.

Irfan's father said that he first went to speak with Moazam's family about the incident, but when they said it was all a lie and beat him up, he went to the police on July 30, the day after the alleged rape. He alleged to IndiaSpend that Moazam was a serial offender with multiple complaints against him, but no action was taken against him.

"Irfan said he wanted Moazam to be in jail so that he would never see him again and feel helpless. His tears broke my heart and I immediately made up my mind to file a complaint as I do not want any parent to go through such suffering," said Irfan's father.

Child welfare experts attribute the increased reporting of CSA cases to improved monitoring and tracking systems, virtually non-existent till the J&K POCS Act and CPS scheme were implemented. The POCSO (Amendment) Act, 2019 stipulates that a CSA case must be disposed of within one year from the date the offence is reported. Two special POCSO courts were accordingly established, one each in the Jammu and Kashmir divisions, which has made it easier to track cases, experts told us.

Between 2015 and 2018, the reported numbers of CSA cases in the Kashmir division were 30, 25, 30 and 35, respectively, data shared by district CWCs with IndiaSpend have shown. In 2019, 162 cases were reported--over 350% increase from 2018.

The increased reporting in Kashmir matches a similar trend in the rest of India after the original POCSO Act was enacted in 2012. There was a 52.5% increase in reporting of CSA cases in the rest of India in 2013 and a 53.6% increase in 2014, according to a Kannur University paper in 2019. "There is a system in place now that increases the chances of better reporting," Javid Rashid, professor of social welfare at the University of Kashmir in Srinagar, told IndiaSpend.

This was solely because there was now a system in place to report, Delhi-based child rights lawyer Anant Kumar Asthana told IndiaSpend. Similarly, with the enactment of the J&K POCSO Act, followed by extension of the POSCO (Amendment) Act in 2019, along with improved reporting systems due to the implementation of CPS scheme, there is a possibility that there will be improved understanding of mandatory reporting as well, said Asthana. Section 19 of the POCSO Act makes it mandatory for any person, including the child victim, to report an offence under the Act. Failure to report is a punishable offence, except for the child victim.

Increased threat to children from lockdowns

Up to one billion children aged 2-17 years globally have experienced physical, sexual, or emotional violence or neglect in the year to June 2020, the most recent data from the World Health Organization have shown. Efforts such as lockdowns to contain COVID-19 are also exposing children to increased risk of sexual exploitation, a joint statement by leaders of global organisations committed to ending violence against children said in April 2020.

In India, a total of 13,244 complaints of child pornography, rape and gang rape were lodged with the National Cybercrime Reporting Portal between March 1 and September 18, 2020, covering the entire period of the COVID-19 lockdown and early phases of reopening. Childline India Foundation, the nodal agency of the ministry of women and child development (WCD) that runs a 24-hour free, emergency phone service for children, received 3,941 calls regarding CSA cases from March 1, 2020, to September 15, 2020.

From January to November 2020, another 246 CSA cases have been reported in the Kashmir division, an increase of 52% from 2019. Another 97 cases have been reported in the Jammu division in the same period.

Apart from the new laws, restricted movement in Kashmir before and during the nationwide COVID-19 lockdown would also have led to increased child sexual abuse cases, experts told IndiaSpend. "Back to back lockdowns and restricted personal spaces of children within the social ecology of Kashmir [have led to increased cases]," said Rashid. "[CSA] is the least reported crime in the world but due to the clampdowns in J&K, the abuse must have increased and thus the reporting too," said Asthana.

Reporting just a fraction of actual cases

In Kashmir, there has long been a culture of silence around CSA, especially when family members are involved, say child welfare experts, while pointing to increased reporting of CSA cases as a sign of change. There is a tendency to either disbelieve or disregard children who complain against teachers, neighbours and family members, and inadequate reporting mechanisms, experts told IndiaSpend.

"If the reported cases are high, in a situation of clampdown and then lockdown, then the actual situation on ground is worrying," said Asthana. "Kashmiri families are not ready to reconcile with the fact that anyone close to the family can do this," said Rashid. "Our community is still well-knit and there is a neighbourhood concept where we trust neighbours and community members with full faith. This influence enhances perceptions that neighbours or community members cannot do something like this that makes children more vulnerable."

This silence is not unique to Kashmir. More than one in two of 12,447 children surveyed in 13 other Indian states in 2007 by the Ministry of Women and Child Development reported having faced one or more forms of sexual abuse, and half of all cases of abuse were by persons "known to the child or in a position of trust and responsibility". Most children did not report the abuse to anyone, said the survey, which pointed to "a conspiracy of silence around the subject".

Javed Ahmed Tak, founder and director of Humanity Welfare Organisation Helpline in Bijbehara, believes that even the spike in the cases does not reflect ground realities. "I can say with assurance that only 10-15% cases of abuse are reported in Kashmir," said Tak. "Parents, relatives never fully trust children and even when they do, they hide [cases] and make sure the children don't disclose it to anyone."

Numbers of rehabilitation centres, and counsellors who help children speak up, are lower than required by law, said Tak. Staff hired under the CPS scheme to deal with these issues are not properly trained. Once a fully functional reporting mechanism and trained staff are in place, reporting of cases will surge, he added.

"We have five children's homes operational in Kashmir division, one in Budgam and four in Srinagar. Ideally, there should be one children's home in every district," Shabnam Shah Kamili, Mission Director, Child Protection Services, J&K, told IndiaSpend. "We are working on the infrastructure. This year, we will make more children's homes operational as we have received funds for this from the government."

Among the 12,447 child respondents to the WCD survey, 48% of boys and 39% of girls reported having faced sexual abuse. The situation in Kashmir is equally bad for boys as for girls, said Nadeem Yousuf, advocate and president, J&K legal cell, International Human Rights Organisation. "Our society denies the fact that boys too can face sexual violence. Even the focus of law and other social organisations is only on protection of girls. There should be a robust action to stop the crimes against both boys and girls. Strong campaigning is needed so that families and survivors report such cases," Yousuf told IndiaSpend.

Families in pain

The family of 16-year-old Ifra*, who lives in a village not far from Irfan's in Shopian district, has alleged that 65-year-old Abdul Gani, a next-door neighbour, raped her multiple times over a period of six months starting September 2019, a month after the Kashmir Valley was locked down following the abrogation of J&K's special status.

Ifra has mental disabilities and cannot speak, and no one in her family knew what was happening until she complained of a stomach ache in March, and was found to be eight months pregnant, with bruises all over her body. On her family's asking, Ifra pointed toward Abdul Gani, but when they confronted him, he accused them of trying to malign his reputation.

In April, Ifra's family filed a complaint against Abdul Gani at the Keegam, Shopian, police station. Gani was charged under Section 376 (rape) of the IPC and sections 3 and 4 of the POCSO Act. He was arrested, denied bail and remains incarcerated at the district jail, Pulwama.

On April 7, Ifra gave birth to a child, who was given to Childline India Foundation workers for adoption. DNA testing proved that Gani was the man who raped Ifra, Sub-Inspector Ahmed told IndiaSpend.

Ifra's sister says that (Gani)'s family has tried to bribe them, but they are determined to send him to jail. "My mother does not leave Ifra and me alone even for a minute now. We are worried about her and do not know what the future holds but we will fight till our last breath," she said. "We have hardly slept since that day. We don't speak to each other like we used to do before, as a family. It feels like our home has broken and every family member is suffering silently."

*Names changed in accordance with POCSO (Amendment) Act, 2019.

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