Kerala High Court Issues Directions For Effective & Gender-Neutral Victim Protection Protocol For Sexual Assault Survivors
In a significant development, the Kerala High Court has notified a list of directions to the State authorities to set up a gender-neutral victim protection protocol to ensure that all survivors of sexual abuse are empowered and encouraged to approach law enforcement agencies.Justice Devan Ramachandran issued the directions to secure the effective execution of the mechanisms already...
In a significant development, the Kerala High Court has notified a list of directions to the State authorities to set up a gender-neutral victim protection protocol to ensure that all survivors of sexual abuse are empowered and encouraged to approach law enforcement agencies.
Justice Devan Ramachandran issued the directions to secure the effective execution of the mechanisms already established for the benefit of the survivors such as the toll-free number 112, 24/7 access to crisis centres and legal support. The Judge also commented on the depth and complexity of the distress of a sexual assault survivor, while adding that it is to be defined.
"Hands down, sexual assault is the most traumatic of criminal victimization. While most crime victims find it difficult to discuss their ordeal, sexual assault victims find it particularly painful – because they are intensely traumatized not only by the humiliation of their physical violation, but also the fear of stigmatization, derision and ridicule from the community and society.... Indubitably, survivors have to be treated sensitively, respectfully and ought to be told that they will be believed. The process of recovery is slow and painful."
The judgment also quoted Canadian poet Atticus: "She was powerful not because she was not scared; but she went on strongly despite the fear."
The Court was adjudicating upon a plea filed by a sexual attack survivor alleging harassment from the accused and two police officers. The issue concerned the Court after numerous cases reached the Bench with survivors seeking police protection. The report submitted by the Assistant Commissioner of Police revealed that a victim's liaison officer had been appointed as per existing protocols for the survivor.
Yet she had to visit the police station on numerous occasions without the presence of the said officer. She had approached the police to terminate her pregnancy which was an aftermath of the sexual assault she had to endure. The Court found it rather disappointing that the liaison officer failed to support and guide the survivor when she approached her seeking help.
At this juncture, the Court had accentuated the insufficiency and lack of implementation of the victim protection system intended for sexual-assault survivors in the State. At a later point of the case, the Judge had also made an oral observation as such:
"I can wake up someone who's sleeping but I can't wake one who is pretending to sleep."
The Court added that there was an abundance of guidelines and circulars specifically revolving around the implementation of a victim protection programme in the State, and stressed that the competent authorities must be accountable for their failure to effectively implement the victim protection guidelines.
The Judge had then invited recommendations from all lawyers on how they can be protected from further trauma on account of the investigation process.
The Court incorporated some of these suggestions from the Bar and the State recommended the effective use of three mechanisms already in placely, found favour with the Court and were incorporated into the directions.
- One Stop Crisis Centre
The Ministry of Women and Child Development, Government of India, propounded the 'One Stop Centres' to support women affected by violence in private and public places, within the family, community and the workplace. 'One Stop Centres' have already been established in each district in Kerala. The Centre, in addition to medical assistance, offers succour to women in lodging an FIR/Statement, along with psychological and social support; legal aid and counselling – both psychological and legal.
- Victim Rights Centre (VRC)
The VRC is a service platform conceptualized by the Kerala High Court Legal Services Committee and brought to fruition under the aegis of the Kerala Legal Services Authority (KELSA), to ensure access to justice and fair treatment of victims. It aims at an integrated action with the cooperation of government, inter-governmental and non-governmental organisations, to provide assistance and support in the nature of sociological, psychological and legal aid to the victims to guide them to their available remedies.
Any woman, child or transwoman, who suffered a loss on injury – be it physical, emotional or economic – by reason of an act or omission which is in violation of the laws of the land, will come under the protective umbra of the Centre, if so accessed. The Centre has presently 48 women counsel, including two designated Senior Counsel and the President of the Kerala Federation of Women Lawyers. The KELSA has authorised 10 non-governmental organisations to work for the Centre, which is also assisted by 60 student volunteers, 50 of them law students and the rest psychology students. The VRC can be contacted at 8330035547 and at vrckhclsc@gmail.com.
- Victim Liaison Officer
With the aim of strengthening the concept of a Victim Liaison Officer (VLO), as part of providing comprehensive justice to the victims of crimes and protection of witnesses, the State Police Chief issued a circular in November 2012, introducing the concept of VLO in the State Police. The primary role of the VLO was conceptualized to maintain regular communication with the family of the victim/deceased and to establish a meaningful link between them and the investigating officer.
The circular ordered the deployment of a VLO in the rank of a senior police officer/police officer in homicide cases and a woman senior police officer/police officer in rape cases/molestation of minor children or when minor girls go missing. The circular further stipulated that VLO will be designated within 48 hours of commencement of the investigation.
Apart from this, the Single Judge found that though these services are available, they are seldom accessed. The Court issued the following directions to ensure that the policing systems and investigating mechanisms work in synergy:
- The government will, in addition to the steps taken earlier by it, continually publicize the toll free number '112' as an emergency support system to be known to every citizen, so that the survivors of child abuse or sexual assault can access it whenever required;
- Every survivor must be encouraged to access the aforesaid toll free number or the police control room number '100'; and on such intimation being received, it will be fed into a digital system, to be then brought to the notice of the jurisdictional police station, for necessary steps under Section 154 of the CrPC. In this regard, the Court recorded the undertaking of the State that a system as above-mentioned has already been put in place under the Emergency Response Support System (ERSS) project.
- The Court recorded the further undertaking of the State that calls made to the toll free numbers of '112' and '100' will only be attended and responded to by well sensitized and trained personnel, who will make sure that the victim is given sufficient support from the inception, until the time she/he requires it thereafter.
- On intimation of a sexual assault or child abuse being received by the toll free numbers, the police control room or the jurisdictional police station, will take immediate steps to contact the survivor either personally or through phone without, however, summoning him/her to the Police Station;
- While taking the statement of the survivor, mandatory provisions of Section 157(1) of the CrPC, namely, that same be recorded at his/her residence or in the place of his/her choice and as far as practical, by a police officer in the presence of his/her parents/guardian/near relatives or social worker, should be scrupulously complied with;
- On the FIR being so registered, the investigating officer should immediately assign a 'Victim Liaison Officer' in terms of the applicable circulars issued by the State police chief, who shall then contact the victim immediately so that he/she will feel safe and protected, being sure of such support;
- Simultaneous to the registration of the FIR or at the time when the Victim Liaison Officer is so assigned, the investigating officer will disclose to the victim the numbers of the 'One Stop Crisis Centre' and that of the 'VRC', so that they can involve themselves and ensure that the victim suffers no further traumatisation and obtains the best psychological support and succor which, indubitably, is the sine qua non for the reparatory process of the victim's psychological trauma;
- The authorities concerned will ensure that the victim has constant access to the Victim Liaison Officer and to the 'One Stop Crisis Centre/VRC' and that this is made available 24 hours a day, at any time the victim requires it during his/her most difficult times;
- The 'One Stop Crisis Centre'/'VRC' should offer not merely psychological assistance to the victim, but also legal support as may be required and will actively promote his/her return to normal life, through every possible facilitation as may be warranted. This shall continue as long as the victim requires, or until such time as the trial is completed;
- The Victim Liaison Officer and the 'One Stop Crisis Centre'/'VRC', should make available every assistance necessary to the survivor for the processes under Section 164A of the CrPC, and must actively guide and instruct, advising her/him of her/his rights under it, thus being able to exercise it diligently and with confidence.
It was clarified that these directions are not exhaustive and remain open to suggestions.
Advocates Dheeraj Rajan, V.P Seemanthini, Parvathy Menon, Ajit Joy, Ambika Devi, R. Renjith, and M.T Sureshkumar appeared in the matter.
Case Title: X v. State of Kerala
Citation: 2022 LiveLaw (Ker) 370