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In the recent child sexual abuse case where Pascal Mazurier was acquitted on charges of raping his own daughter, the prosecution believes they need to appeal. Here is why.
In a recent judgement, a Sessions Court Judge in Bangalore has acquitted ex-French Diplomat, Pascal Mazurier of raping his daughter, claiming that there was not enough evidence to convict him in the case. Yet, a very cursory perusal of the judgement – regardless of where you stand vis-a-vis legal jargon – will raise eyebrows and raises the question of how the rights of children who have been sexually abused are protected.
The judiciary is meant to act as the custodian of rights, and we rely on it to ensure the enforcement of basic rights when they are violated. Its failing therefore harm not only those directly concerned, but also the larger subset of the law, its interpretation and consequent implementation.
It is a telling fact that convictions under the Protection of Children from Sexual Offences (POCSO) are abysmally low in India, with questions having been raised about the speed of investigations and court procedures, as well as the quality of the same. (POCSO took force from June 2012, after this case was filed).
While Pascal Mazurier expressed satisfaction over the judgment, the prosecution believes that this case has sufficient grounds for appeal.
We therefore spoke to Suja Jones, the prosecutrix and the mother of the girl, and also to a few legal luminaries in the country for their views on the judgment.
I will start by telling you about my history with Pascal. I met him in 1999, and I got married to him in 2001. We decided to take it easy. We loved each other. We decided to get to know each other for some time and waited for four years before having the first baby, and with a gap of three years, the second one, which is my daughter, and then two years later, my son.
When I was pregnant with my third child, my daughter was about a year and nine months old at that time. That was when I started suspecting something. My daughter would voice out something but with a word or two with baby words. I wasn’t sure about what she meant.
I was brought up in a family of three girls and one boy. I was one of a twin. The messages I got from all around me – family, society and everyone – was that I was lucky to have a husband like him.
At that time, with the baby bubble and all that, I wondered if I was imagining things or if I was over-thinking it, so I tended to ignore some of the things she said. I was focusing on my pregnancy at that time. There were times when she was about three-and-a-half, in May and June of 2012, she started articulating in full sentences and I couldn’t ignore it anymore.
She had started going to school. I remember one little thing when she went to school for the first time. After two weeks, the principal called me and said she had a concern. She asked me if my daughter talked. I started laughing – but she didn’t. She thought my child was mute. At home, she used to scream, yell and speak. It was one of the early signs of the abuse. She didn’t say a word at school.
I spoke to two of my best friends in Bangalore, and they told me to take her to a doctor. I must say that in 2010 itself, when I was pregnant, I went to our regular pediatrician, who was my neighbour and a friend. I was embarrassed to tell her about my real worry and told her that I was paranoid because she was a girl and that I left her with the maid at times, and asked her to check if she had been abused. She checked my daughter and said that the hymen was intact. I think today that that was when the abuse was starting, so there were no visible signs then.
In 2012 a friend gave me the number of another friend, who told me to go to Sparsh*. Through them, when they asked me whom I wanted to consult, I agreed to see any counselor. They randomly gave me an appointment with a counsellor. I went to her and she asked me, “Why aren’t you believing your daughter?” I wanted her to speak to my daughter to ascertain what had happened, because I may have misinterpreted it. By the end of the session, I asked her when I could bring my daughter in, and she told me that she didn’t work with children, and recommended someone else
She gave me the number for ENFOLD**, with Dr. Saldanha. On the 6th of June she started talking to my daughter, for about an hour. By the end of it, she told me that my daughter was being sexually abused by her father.
Dr. Saldanha suggested that we go to NIMHANS, and then think about what to do. We were posted to South Africa very soon after. Eventually, I went to Shobha Srinath in NIMHANS, who told me that counseling was a bit of a long-drawn procedure, and through the process, they could bring out if there was any abuse and how much of it had happened. This was on June 12. On June 13, I went to ENFOLD to collect the report.
My husband worked near the house, and would sometimes come home for lunch, and sometimes he wouldn’t. On that day, he had come home for lunch. I didn’t think much of it. The maid was at home, and my baby was at home, as well. He usually ate and went to work immediately. I used to think that if at all, the abuse was happening at night when we were asleep. When I came back with the report, my maid told me that he was eating, but he had stopped halfway and put his food in the fridge, and didn’t eat. She said that he went to put the baby to sleep.
When I returned home, my maid was upset and apologetic about my husband having done what she was supposed to do – she told me in Hindi, “Maine bola main sula dungi baby ko,” meaning, “I told him that I would put the baby to sleep.” She was more upset that he had not eaten and had done what she was tasked to do. I saw my daughter sitting with her brothers, and was cranky. By this time, my baby had been abused for months. She told me again, “Papa hurt me.” I took her to the bedroom and found her privates red. I never saw any blood there, I always assumed that rape meant that there had to be bleeding.
I called Dr. Saldanha to ask where I could take her. She told me to go to Ramaiah or Baptist hospital, because they followed child sensitive procedures and had a collaborative childcare unit. I went to the latter. They examined her and took vaginal swabs. They didn’t give me the report immediately. The next day, I learnt that sperm was found in the Baptist lab report. I decided to file a police complaint. In my mind, till then, none of this was real. I was just going to these places with no clear objective in mind except to take care of my daughter. But when they found sperm, something had broken within; I knew my husband had been abusing my daughter all these months and that I had to file a complaint to protect my child. ENFOLD advised me about a lawyer. I went to Gita Menon, in Pramila Nesargi’s office***. We drafted the complaint that day and went to the police.
We went to the police, who didn’t want to accept the complaint. They claimed that he was working for the consulate and he couldn’t be arrested or brought in for questioning. But we kept reinforcing that they had to take the complaint. When I came home that day with the police to identify him, I broke down.
They took him in for questioning and then the case followed.
My daughter who was just 3 and a half years old then, was taken by the police the next day after my complaint to the Government Hospital, where she had a two-finger test done. That report said that she was an individual accustomed to sexual abuse and another medical report said her hymen was attenuated.
It took me time to come to terms with all of this. A lot of times, people ask me why I didn’t go to the police in the first place. In the early stages I did not want to file a complaint against my husband. He was my husband and the father of my 3 children. I only wanted to know what was happening with my daughter.
At court they cross-examined my daughter without letting me inside the chamber. They sent me out of the room and sent him into the room, facing her directly. I was crying outside, and told the clerk that she would have nightmares. I reminded them about the law that my child should not face her abuser and at least a screen should be put and the clerk went in to tell them this. They just told him to turn away from my daughter but he still sat in front of her. During the cross-examination he faced her directly. She came out of the chamber after the approximately one hour of cross-examination, crying. His lawyer had yelled at her and asked her questions, and she told me that the he had called her and her mother a liar. I don’t understand why my daughter was put through such aggressive cross-examination with her abuser in front of her. She is only 8 years old.
The accused and his lawyers have accepted that there was sexual abuse, but they filed a complaint with the police saying they wanted to find the one who sexually abused her – but that case was closed for lack of evidence.
In all of this, I want justice for my daughter. I am a bold person, and people have told me to keep quiet. I made the mistake of going against many of the atrocities silently thinking that justice will be on our side because we certainly did the right thing. I now know, silence is not necessarily a sign of strength. Silence is dangerous for my children and me.
I still hope and pray that my child gets justice.
Justice M N Kannan Krishnamoorthy, (Former Judge, Punjab and Haryana High Court; currently the Chairman of Railways Claims Tribunal, Principal Bench at Delhi and the Revising Editor of Modi’s Medical Jurisprudence and Toxicology (25th edn):
I read the judgment and it is shockingly insensitive. There is enough evidence to suggest that the child had been sexually abused – redness of her private parts, difficulties in urination, swabs of the private parts proving to contain the presence of semen that corresponded with the sample from the accused, the child’s narration about the father expressing love but at the same time saying that he should not hurt her, the identification of images of phallus from the diagrams that caused her hurt, absence of the hymen and the child psychologist’s assessment of the child as having been sexually abused, among several other corroborating evidence.
The appreciation of various aspects of evidence by the judge is woefully bad…the conjoint effect of the evidence must have been taken and versions of various persons ought to have been seen as bringing out a credible whole. The judge was wrong in truncating each part of evidence and holding that each one of the details could be caused by other means which was asexual. The case is lost from the first few paragraphs themselves, when the presiding officer makes an attempt to paint the mother as a party-going, high spending woman leading a wayward life.
The case is a telling example of how the evidence of witnesses ought not to analysed and how the court ought not allow for character assassination to be made against the principal prosecutrix, the mother. The judgment makes sad reading.
Pragati (name changed on request), Advocate, Madras High Court
Everything about the judgment is horribly wrong – and holds up a mirror to everything that’s wrong with the way we handle these cases. There is evidence as clear as day that shows that the child was sexually abused, and the child’s interrogation has been done without any care for the trauma she might have been through.
I can see clearly that the judge has taken up irrelevant elements of the evidence to throw out the case – relying on such absurdities that the couple had a decent sex life, and portraying the child’s mother as promiscuous to taint the case and obscure all reason.
What grabbed me tremendously was this irrational evaluation: “If at all she being a dutiful mother she ought not to have left the home by leaving the responsibility of the children on her husband for shopping.” This is troublesome. It reflects that the judge has already determined a prejudiced point of view in assessing the mother, and is exporting that prejudice to justify everything about the acquittal.
This is a child we are talking about, and her hymen is missing. The elaborate desperation with which the judgment suggests that the accused had “…intercourse with the accused on the previous night as alleged by the accused and she might have collected the spermatozoa and spread on the clothes and the articles…” is reminiscent of an Ekta Kapoor serial, and not a judgment from an institution that is responsible for being the guardian of fundamental human rights.
It shocks me that the life, truth and integrity of a child are being so brazenly and shamelessly sacrificed at the altar of reason. I hope the case will proceed on appeal to the upper echelons of the judiciary, and that justice will be served with due regard to remedying the fractures in the lower rungs of the judiciary.
*Sparsh is an NGO that works with special children
**ENFOLD is an NGO that works to support victims of child sexual abuse. The Dr. Saldanha that Suja refers to is Dr. Shaibya Saldanha, one of the founders of the NGO.
***Pramila Nesargi is a noted lawyer in Karnataka as well as a past member of the Karnataka Legislative Assembly
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