Why cases under POCSO law should deploy restorative justice
About four months ago, when news about a district court in Madhya Pradesh sentencing a person to death under the POCSO (Prevention of Children from Sexual Offences) Act was doing the rounds, research conducted by the Counsel to Secure Justice (CSJ) and National Law University Delhi (NLUD) offered significant insights.
Drawing from a survey conducted with the survivors and family members, as well as the accused, in child sexual assault cases in areas in and around Delhi, this study revealed that the meanings of “justice” tend to vary for the victim, offender, family, and community. The survivors or their families did not necessarily want the death penalty — or even strict punishment — for the accused. Rather, in many cases, they wanted the offenders to acknowledge their wrongdoing or tender an apology for their act.
These ideas are a part of “restorative justice”, which is emerging as a powerful tool in the criminal justice process, especially with regard to conciliation and mediation. The concept involves bringing the victim and offender together to remedy the harm — it makes the offender accept his/her offence. Criminologist Howard Zehr notes that crime violates both people and relationships. Restorative justice involves the victim, offender and the community in its quest for solutions, which are about repairing, reconciliation, and reassurance.
Punitive options, including the death penalty, are not the product of the concerns of victims or their families — they are notions of the state and therefore, driven by political considerations. Punishment seldom matches with the idea of justice held by the victims, their families or the community. Victimisation leads to trauma, shame, insecurity, and several other social and emotional consequences.
Most people who were interviewed in the CSJ-NLUD study felt that the offenders need to go through similar pain and trauma. The victims wanted society to punish the offenders by shaming them as “rapists” or “molesters”. Other victims wanted the offender to tender an apology as it gives them a sense of empowerment. The survivors felt that the criminal justice process is inconsequential if it doesn’t drive the offender to experience regret, a sense of guilt and an obligation of reparation.
The study revealed that families of victims often felt that the offenders usually do not experience any remorse or guilt even after undergoing the severest of punishments. The stakeholders in these communities felt that, apart from harsh punishment, measures like community service, education — or even treatment for the offender — and restorative programmes ought to be initiated.
Does the criminal justice system repair the harm done and heal relationships? Communities often perceive the system as corrupt, dismissive of the poor and insensitive towards victims and their families. The CSJ-NLUD study presents a powerful case for applying restorative justice, especially because re-victimisation and secondary victimisation, including discrediting crime victims during cross-examination, results in more harm than good — they discourage victims from reporting abuse. Victims believe that the system shares the society’s victim-blaming culture.
Restorative justice programmes enable the victim, the offender and affected members of the community to be directly involved in addressing the situation that arises after a crime. They become central to the criminal justice process, with government officers and legal professionals serving as facilitators of a system that aims at offender accountability and reparation. This restorative process — that often involves face-to-face interactions between all parties — is a powerful way of addressing not only the material loss as a result of the crime, but the social and emotional trauma caused by it.
A restorative justice approach would require the POCSO Act to concentrate on the victims’ needs — material, financial, emotional and social. POCSO ought to recreate or restore a community that supports the rehabilitation of victims and offenders — and in doing so, prevent crime. Adoption of such strategies will also obviate the costs and delays associated with the current legal justice system.
In 90 per cent cases of child sexual abuse, the offender is not only known to the victim but is also a close relative. Many organisations worldwide have “victim offender reconciliation programmes” or “sentencing circles”. These involve trained facilitators who make the parties discuss possible solutions by driving the offenders to own up to their offence.
The current justice system often ignores the need to restore relationships that were broken, because family members blamed victims and failed to support them. The aim of the criminal justice process ought to be the creation of peace and, more importantly, enabling the community to deal with the effects of crime — as well as preventing it.
The writer is chairperson, Centre for Criminology & Victimology, National Law University Delhi
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