India is Lacking in the Amount of Sexual and Violent Crime Cases that Utilize DNA to Link the Accused to the Crime Scene

CA more aggressive DNA approach at crime scene, in the lab and in the court, will increase conviction rates and make India safer for women

New Delhi, Delhi, India

Crime in India is seen to be on an upsurge, especially rape and sexual assault cases where the conviction rate has fallen from 49% to as low as 29% in the last 3 years (between 2012 and 2015) in Delhi alone, and over 1,37,458 rape cases still stand pending for trial across India[1]. The lack of scientific methods in investigations is hampering justice delivery and the need for DNA casework expansion in India is now increasingly critical and urgent to build conviction in such cases.

“India is simply not collecting enough DNA at violent and sexual crime scenes,” said Tim Schellberg, President, Gordon Thomas Honeywell Governmental Affairs (GTH-GA), a legal and policy expert of forensic DNA. “DNA is the world’s greatest crime fighting tool. Consequently, DNA should be aggressively collected, tested and compared to the accused. DNA testing is happening in India, but not nearly enough,” added Schellberg.

GTH-GA estimates that the United Kingdom completes DNA testing on over 60,000 crime scenes annually. India is over 13 times larger in population that the United Kingdom, yet GTH-GA estimates that India’s crime labs collectively complete DNA testing on less than 7,500 cases annually. This is a very low number.

Furthermore, when DNA is collected, it often goes into large backlogs due to India’s lack of DNA testing infrastructure. The pendency of the backlogs for sample testing in the FSL at Rohini is 5661 and for the one at Chanakyapuri are 458[2. GTH estimates that most of the backlog cases mentioned is likely DNA.

As per the statistics available on the website of Directorate of Forensic Science, Himachal Pradesh[3], the pendency of DNA cases has gone up. In January 2017, the pendency of cases was 605 and in June 2017 was 674, whereas, the average collection of DNA cases is around 30 per month and average disposal of 15 cases a month. This shows almost 50 per cent increase in pendency at FSL per month.

As per the NCRB data, more than 34,651 rapes were registered in 2015. On the contrary, the annual report of the Centre for DNA Fingerprinting and Diagnostics (CDFD)[4] available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
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Senior Advocate, Delhi High Court, Vivek Sood agrees that not enough DNA is being utilized in rape cases. “In Delhi, the numbers of rape cases have tripled over the last five years, registering an increase of 277% from 572 in 2011 to 2,155 in 2016. In these cases, I rarely see DNA evidence presented by the prosecutors during trial. This is because DNA is not properly collected at crime scenes on a routine basis, and when it is collected, it is stuck in long backlogs in our underfunded crime laboratories. As a result, there is an over reliance on verbal statements provided by witness/witnesses in the court that can result in wrongly convicting the innocent. We must have more DNA testing to ensure a swift and just result for both the victims and the accused.”

Collection, transportation and storage of DNA forensic evidence are the key factors in rape investigations, which unless well-preserved and transported to FSL result in weak prosecutions and low conviction rate. India currently has approximately 30 FSLs with varied capacity to examine DNA Samples. To strengthen the criminal justice system, it is therefore critical to invest in the much required infrastructure and upgrading the FSLs for DNA – Collect, Test and Compare.

The availability of DNA when at trial to link the accused to the crime is seen throughout the world as the best way to increase charging and conviction of criminal offenders. One study from Denver, Colorado (United States) shows that when DNA is available the prosecutions, ‘charging rate’ was 8 times higher than cases that did not have DNA casework that matched a known suspect. While this data shows prosecution ‘charging’ and not conviction, the point is made showing how the system likes it when DNA is present. A charge rate that is 8 times higher when DNA is present is a big number and obviously will lead to a higher conviction!

EIndia can be a far safer place for women if DNA was collected and tested at all violent and sex crime scenes where the criminal offender leaves DNA. This is a must for all law enforcement authorities, and courts and prosecutors to ensure that the DNA be tested quickly and be used in courts to expedite the judicial process.

 GTH-GA works globally on DNA

Gordon Thomas Honeywell Governmental Affairs is globally recognised public affairs consultancy firm that has expertise with forensic DNA database policy, legislative, and law. For nearly twenty years, consultants at GTH-GA have consulted in over 50 countries and states on legislation and policies to establish or expand criminal offender DNA databases. GTH-GA collaborates closely with governmental officials, crime labs, police and the DNA industry. GTH-GA operates the DNAResource.com website that has been used as the world’s primary source for DNA database policy and legislative information since 2000.

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Law-making Amid Moral Outrage

Editorial Article Published in the Hindu

Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.

law makingThe Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.

Supreme Court sets up social justice bench

THE SC TABLEU IN 2004 REPUBLIC DAY
JUSTICE TO THE PEOPLE

PUBLISHED IN THE MINT

New Delhi: The Supreme Court on Wednesday set up a social justice bench to deliver speedy access to constitutional rights, particularly those relating to women and children. The bench will deal exclusively with social matters, including the right to food and medical assistance. The move is designed to ensure that these cases can move quickly through the apex court and, notably, to encourage deeper deliberation on the rights and responsibilities of the state. The Supreme Court said “several cases relating to the domain of ‘social justice’ have been pending for several years” in the apex court, prompting Chief Justice H.L. Dattu to order “that these cases shall be given a specialized approach for their early disposal so that the masses will realise the fruits of the rights provided to them by the constitutional text”.

The two-judge bench comprising Madan B. Lokur and U.U. Lalit will begin sitting from 12 December. The range of issues identified includes access to food for drought-hit people and prevention of premature deaths caused by lack of nutrition. The right to health figures on the agenda with the mandate to make access to medical care a reality irrespective of people’s financial capacity. The bench will also determine availability of night shelters for the homeless and the destitute. “This is an idea that should have been long implemented. The job of judiciary is not just to deliver justice but also to make people respect and fear the law. Right now, people think they can do anything and get away with it,” said Ranjana Kumari of the Centre for Social Research, a non-governmental organization. “I know of two dowry cases which are pending in the Supreme Court for 22 years.

If this body is formed, hopefully justice wouldn’t be delayed any more,” she added.

While the apex court has routinely set up dedicated benches, these have primarily dealt with economic issues. The “forest bench”, later renamed the “green bench”, has been dealing with environmental cases for nearly two decades. Similarly, the lower judiciary has courts dedicated to crimes against children and offences like sexual assault. Having a dedicated bench for matters of constitutional rights and societal concerns will reduce the pendency of cases arising from such matters. The new bench will take up not only pending matters but also new ones in order to “secure social justice, one of the ideals of the Indian Constitution”, the court said. The release also indicated that secure living conditions for women—in the absence of which many find themselves in sex work—are a part of constitutional goals which must be achieved.

Welcoming the move, Supreme Court lawyer and anti-trafficking activist Ravi Kant said, “I think this move will bring more focus on these issues. Different PILs related to the same matter are pending before different benches. This body will bring in more clarity. It will also expedite the delivery of justice.”

However, some experts said that with only a brief announcement made so far, details about implementation, the number of cases to be transferred to the bench and other such matters were unclear. “Definitional questions as to what qualifies as social justice will arise. It might also encourage forum shopping, as each litigant wants to be heard by a sympathetic bench. The other problem is that the concept of rule of law promises equal treatment of all cases,” Rahul Singh, assistant professor at the National Law School of India University, Bengaluru. “Constituting a special bench for a class of cases is antithetical to this concept.” “It’s important that the apex court is talking about these issues. But this shouldn’t reduce to mere tokenism. We have so many mahila (women’s) courts in the country. Crime against women has become a disease in this country,” lawyer Rebecca John said. “If the bench is a response to recognizing that cases related to women and children are serious, then I welcome the move.”

Read more at: http://www.livemint.com/Politics/vUH4B7kKPH4WcSFbnfhRKP/SC-sets-up-social-justice-bench-to-deal-with-social-issues.html?utm_source=copy

The Protection of Children from Sexual Offences Act, 2012 passed – Children in India get a new Law

The Protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha today, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.

The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.

 Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.

 The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.

 Punishments for Offences covered in the Act are:

  1. Penetrative Sexual Assault (Section 3) –  Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
  2.  Aggravated Penetrative Sexual Assault (Section 5) –­ Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
  3. Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine  (Section 8 )
  4. Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
  5. Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
  6. Use of Child for Pornographic Purposes (Section 13) –  Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:

  1. Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
  2. No child to be detained in the police station in the night for any reason.
  3. Police officer to not be in uniform while recording the statement of the child
  4. The statement of the child to be recorded as spoken by the child
  5. Assistance of an interpreter or translator or an expert as per the need of the child
  6. Assistance of special educator or any person familiar with the manner of communication  of the child in case child is disabled
  7. Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  8. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
  9. Frequent breaks for the child during trial
  10. Child not to be called repeatedly to testify
  11. No aggressive questioning or character assassination of the child
  12. In-camera trial of cases

The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.

For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

  1.  SCR summary-Protection of Children from Sexual Offences Bill
  2. SCR Protection of Children from Sexual Offences Bill 2011
  3. Children  sexual offences
  4. Bill Summary – The Protection of children from sexual harassment Bill, 2011

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women.  Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.

Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs.  These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.

 The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult.  Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.

NATIONAL LEGAL RESEARCH DESK

Panel clears Bill to save kids from sex crimes

THE TRIBUNE / New Delhi, December 21

The landmark law on protection of children from sexual assault and pornography crossed the first big hurdle today as the Parliamentary committee reviewing its provisions cleared the Bill with one major rider. The committee rejected the government’s proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years.

Though the Ministry of Child Development, piloting the law, argued for the age of consent saying sexual awareness of children couldn’t be overlooked, the committee said once the law had defined everyone up to 18 years as children, the element of consent should be treated as irrelevant. The ministry’s contention that not having the element of consent would lead to criminalisation of consensual action by 16 to 18-year olds didn’t go down well with the committee which said in its report to the Parliament today, “By having the element of consent, the focus will be on the victim, leading to his or her re-victimisation. Children can’t be exposed to lengthy cross examinations on issues of consent.”

The committee has further asked the government to cover religious institutions like muths, madrasas and monasteries under the law. It accordingly sought amendment to the clause – “Whoever being on the management or staff of an educational institution commits penetrative sexual assault on a child in that institution…would be punished” – to include religious institutions where young boys go to study. The law also covers households, hospitals, schools and juvenile homes.

The parliamentary panel has, however, sought the word “shared household” defined as “a household where the person charged with the offence lives or has at any stage lived in a domestic relationship with the child”. The existing definition is a bit limiting. This clause will protect children from family and is historic considering the 2007 government study which revealed that 53 per cent children had suffered sexual abuse and half of these were at the hands of persons in the position of trust.

The Protection of Children from Sexual Offences Bill 2011 (introduced in the Rajya Sabha on March 23 and referred to the committee) further allows children and anyone from the public to report the offence and its apprehension to the local police or special juvenile police unit. It covers sexual offences against children at the time of communal violence and provides for special courts to deliver justice in a child-friendly environment.

Its landmark features are – definition of sexual assault for the clarity of victims and law enforcers and the presumption that those who committed the offence are accused unless proved otherwise. Though the law has safeguards to prevent false complaints, it ensures that cases don’t fall through for want of evidence which is difficult to collect.

With this law, India seeks to fulfil its commitment to the UN Convention for Rights of the Child that it ratified in December 1992. The law is path-breaking considering 24 per cent rapes in India involve children (11 per cent of these involve those under 14 years). Government data further shows that conviction in rapes fell from 38.7 per cent in 2001 to 30 per cent in 2009; in matters where minors were procured for prostitution, conviction rate fell sharply from 39.1 per cent to 18.9 per cent over the same period.

A STEP FORWARD

Parliamentary Committee rejects government proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years

http://www.tribuneindia.com/2011/20111222/main5.htm 

Protection of Children from Sexual Offences Bill,2011

Juvenile officer at every police station must: court

J VENKATESAN IN THE HINDU

“He shall take care of safety, food and basic amenities of the child”

The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”

According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.

He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.

Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.

Monitoring to continue

The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.

http://www.thehindu.com/news/national/article2562888.ece