Trying young offenders as adults won’t fix India’s child sexual abuse problem

According to recent news reports, a committee constituted to suggest measures to curb sexual violence against children recommended to the Union government that offenders above the age of 16 years under the Protection of Children from Sexual Offences (POCSO) Act should be tried as adults. It has also been reported that these recommendations will soon be tabled in Parliament. The presumption that incarcerating young men will prevent sexual offenses against children is at odds with the realities of child sexual abuse in India. It also ignores the empirical fact that a significant proportion of POCSO cases involving young offenders are an outcome of non-exploitative consensual sexual relationships between adolescent persons.

One of the main reasons for the committee’s recommendation is the fact that there has been an increase in POCSO cases by nearly 45% — from 32,608 to 47,325 — between 2017 and 2019. However, these figures hide more than they reveal. As per the Crime in India 2019 statistics released by the National Crime Records Bureau, nearly 40% of POCSO cases involved offenders who were friends (online or otherwise) on the pretext of marriage. Research in five states by the Centre for the Child and the Law (CCL) at the National Law School of India University, Bangalore revealed that more than 20% of the judgments under the POCSO Act involved romantic relationships between the victims and the offenders. In my ethnographic research of rape trials in Lucknow’s Fast Track Court in 2015 (published in the Indian Journal of Gender Studies), I found that nearly 50% of the trials I observed involved runaway marriages of minors. In these cases, the girl’s family is opposed to the marriage and lodges a complaint of kidnapping against the male partner stating that their daughter is a minor. A kidnapping case converts into one of kidnapping and rape when the police hunt down the couple and the girl is sent for medical examination. Since the consent of a minor to a sexual act is immaterial in law, charges of rape are included at the stage of the charge sheet based on the doctor’s remarks about the condition of the girl’s hymen in the medico-legal certificate. Most trials I observed corresponded to complaints filed before the POCSO Act was enacted in 2012 when the age of consent was 16 years. The POCSO Act raised the age of consent to 18 years increasing the chances of criminalisation of consensual relationships between young people. The existing research necessitates a closer examination of POCSO cases rather than just relying on the increased numbers to suggest drastic measures that are in contravention to the objectives of the Juvenile Justice Act and the UN Convention on the Rights of the Child.

Despite the above-stated empirical evidence, the Juvenile Justice Act was amended in 2015 to allow for the possibility of children in conflict with the law between the age of 16-18 years being treated as an adult in heinous cases. The amendment was a result of the massive public outrage against the juvenile offender in the Delhi gang rape and murder case serving ‘only’ three years in detention. Adolescent boys can now be treated as adult offenders and sentenced to harsh sentences. The recommendation to treat all offenders above 16 years as adults will further exacerbate these concerns. Questions of consent and sexuality of adolescents constitute a contentious and complicated terrain that cannot be addressed by penal measures. Suggestions by child rights group to include a ‘proximity in age’ clause as an exception to the offences under the POCSO Act need serious consideration.

Sexual offences against children are massively under-reported due to the culture of shame and silence which is further intensified by the fact that nearly 95% of cases involve known perpetrators. Over-criminalising and over-punishing these offences is counter-intuitive and likely to deter reporting. Severe gaps in the implementation of the POCSO Act highlighted by the comprehensive research undertaken by CCL need to be plugged. Curbing sexual violence against children requires broader social reforms that are beyond the realm of the law.

In the last decade, we have seen a consistent move towards harsher criminal laws including the introduction of the death penalty for sexual offences against women and children. The recent recommendation to treat offenders above 16 years under the POCSO Act as adults follows a similar vein. However, the effectiveness of penal measures in addressing sexual offences remains doubtful. Just over a year after the execution of Pawan Kumar, Akshay Kumar Singh, Vinay Sharma and Mukesh in the Delhi gangrape and murder case on March 20, 2020, it is perhaps a timely reminder for us to reassess the potential of criminal law in addressing sexual violence.

Neetika Vishwanath, is with Project 39A at the National Law University, Delhi. The views expressed are personal. This article first appeared in The Times of India and can be accessed here.