15/07/2016 4:00 PM IST | Updated 18/07/2016 5:03 PM IST

Child Rape Survivors In India Need More Compensation And Faster

Danish Khan

Shweta (name changed) was four years old when her neighbour raped her. Her mother had left Shweta with her young sisters to visit the bathroom, a 15-minute walk from home. When she returned, Shweta was inside their home with their neighbour, a man in his 20s. Shweta said the man did something bad to her and she hurt. She was bleeding from her private parts. After the neighbour fled, the family reported the incident and police arrested him.

After the rape Shweta had trouble urinating and required multiple surgeries, including a colostomy, where the intestine is pulled through a hole in the abdomen for stool to exit into a bag. The government hospital paid for the operations, but the family had to borrow money to pay for transportation, hospital meals and colostomy bags (₹500 each), which needed daily replacement for eight months.

"What was I supposed to do?" Shweta's father said. "It was an emergency."

Legal Rights For Compensation

Laws exist to provide financial support to victims like Shweta, but trial courts need to grant compensation to more sexual assault victims, and faster.

Interim compensation can be granted to victims before completion of the trial regardless of whether there is a conviction in the case.

Delhi child rape victims like Shweta have a right to financial compensation between ₹2-3 lakh.[i] Interim compensation can be granted to victims before completion of the trial regardless of whether there is a conviction in the case, as long as courts see evidence of loss or injury from the offence.[ii] Interim and final compensation can be granted based on factors such as severity of injuries, loss of employment and loss of educational opportunity due to the assault [see the full list here: Rule 7(3)(i)-(xii)].

Shweta and her family desperately needed monetary compensation as their financial burdens grew. Her father lost his job as a water supplier and several subsequent jobs because he needed time off to shuttle Shweta to doctors, cooperate with police and attend court hearings. The family again borrowed money to pay for hospital admittances[iii] and rent.

From Application to Receipt: An Obstacle Course

The Investigating Officer[iv] in Shweta's case helped the family apply for interim compensation and asked the HAQ Centre for Child Rights and Counsel to Secure Justice (CSJ) to follow up on its disbursement. Unlike final compensation given at judgment, interim compensation is given during trial to relieve immediate needs resulting from the assault. In Delhi, the law gives the Delhi Legal Services Authority (DLSA) 60 days to approve or reject applications and 30 days after the decision to disburse the money to victims. But these deadlines are rarely met. Though the DLSA passed the order for Shweta's compensation relatively quickly, she waited four months to receive the money. Our social worker coordinated with a sub- divisional magistrate five times, simply to ensure he would receive Shweta's name from the police to write the cheque[v].

Some judges are cautious in awarding compensation because they fear victims may lie about abuse to win financial benefits.

The Delhi High Court has more recently insisted that authorities disburse interim compensation to a victim within 24 hours of awarding it. But that deadline is difficult to meet. Most poor families do not have a bank account, much less an account in the child victim's name. In Shweta's case, the family had to procure identity documents before setting up an account for Shweta[vi].

In HAQ/CSJ cases, clients received on average ₹71,000 interim compensation; 70% received ₹50,000 or more. Eventually Shweta received ₹1 lakh as interim compensation. However, this amount is not given all upfront. For minors, the Delhi Victims Compensation Scheme provides 20% upfront and 80% in fixed deposit until the victim turns 18 and for a minimum three years from when deposited. But often, only 20% is insufficient to meet the family's immediate needs. For example, Shweta's father used the ₹20,000 to pay down debt and still owed neighbours nearly ₹14,000[vii].

Table: Interim compensation for HAQ/CSJ child sexual abuse cases (Apr. 2013 – Mar. 2016)

Counsel to Secure Justice

Courts Must Consider Victims' Needs

An amendment to the Delhi Victims Compensation Scheme, 2011[viii] may soon allow courts to grant higher compensation, but this means little if courts rarely grant more than minimal amounts. In fact, often courts fail even to consider whether victims need interim compensation. The Supreme Court has clearly stated this is not an option.

In Suresh v. State of Haryana, a father and son were kidnapped on their commute home from factory work. The family was unable to pay the ransom demanded, and the victims were stabbed and beaten to death. After the trial court dismissed the widow's application for interim compensation the Supreme Court reversed the decision and granted her ₹10 lakh. The court insisted that trial courts should exercise their power to grant interim compensation meant to benefit victims of crime. The award can be interim, and the court's duty continues at all stages of criminal proceedings.

Because many victims and their families live off small daily wages...judges believe parents could misuse money meant for child victims, particularly in incest cases.

Though judges may grant interim compensation at any stage of a trial, often they delay until key witnesses testify. Some judges even delay compensation until all witnesses testify. The problem is that often months pass between hearings and years before a trial concludes. In HAQ/CSJ's experience, the average trial takes much more than the year time-limit from when the court takes cognizance, as mandated in the Protection of Children from Sexual Offences Act, 2012. In Shweta's case, only seven of 21 witnesses have testified nearly three years after her rape.

Some judges are cautious in awarding compensation because they fear victims may lie about abuse to win financial benefits. Because many victims and their families live off small daily wages with no savings, judges believe parents could misuse money meant for child victims, particularly in incest cases.

While these concerns are valid, in HAQ/CSJ's experience families have real needs resulting from the assault that greatly offset these worries. Plus, parents can be held accountable to spend compensation appropriately. For example, the DLSA has provided counsellors and advocates to victims and their families to assess their needs and recommend compensation. Similarly, the competent authority could provide victims and their families training on managing finances and answer questions parents may have.

Restoration vs. Re-Victimization

Like Shweta's father, many parents simply want to give their children a better life. Shweta will routinely require medical consultations as she grows; her ongoing counselling needs would be unaffordable without compensation, as would any school fees to improve her education and earning potential.

"I don't want to use my daughter's money," Shweta's father said. "Whatever I owe, I am working now to pay back. They should give more compensation because for her future, you need more money."

For Shweta and other clients, quick interim compensation is the difference between re-victimization and restoration.

[i]Delhi Victims Compensation Scheme, 2011, Schedule, S. No. 2. An amendment passed in September 2015 (pending Home Ministry approval) would raise compensation for rape victims to 2-5 lakh and for gang rape victims to 3-7 lakh. Currently, every state has its own compensation range, but in February 2016 the Supreme Court praised Goa's upper limit of 10 lakh and pushed for all states to consider and formulate a uniform scheme for rape victims. See Tekan Alias Tekram v. State of Madhya Pradesh (now Chhattisgarh), 2016 (2) SCALE 274; MANU/SC/0156/2016, par. 13.
[ii]See the Protection of Children from Sexual Offences (POCSO) Act, 2012, S. 33(8) read with POCSO Rule 7(1).
[iii]Government hospitals generally waive the doctor's fee when a family arrives with police after a First Information Report of the assault is registered. If victims require subsequent medical attention, families must pay for hospital admittance.
[iv]The Investigating Officer felt compelled to give Shweta's family 2500 from her own pocket.
[v]It is prohibited to publish or make known the identity of a rape victim. Indian Penal Code, 1860, S.228A. Since the note identifying Shweta for compensation would have been a public document, the police officer would only give Shweta's name to the sub-divisional magistrate in person to write the check. To overcome this problem, now the DLSA electronically transfers compensation to child victims' bank accounts.
[vi]Setting up the bank account cost Shweta's family 1000 and was taken from the compensation dispensed.
[vii]That's after a charity provided two months of colostomy bags, worth about 30,000.
[viii]See endnote 1.