Until the Protection of Children from Sexual Offences (POCSO) Act came into being in 2012, there was no law that addressed the issue of ‘rape’ of boys as the Indian Penal Code (IPC) Section 375 dealing with rape defines it as an offence committed by a male on a female.?
The year 2007 was a turning point for the discourse on child abuse in India. Contrary to the prevalent belief that only girls and women are sexually abused, a report published by the Ministry of Women and Child Development found that not only are boys abused sexually but they outnumbered?girls. ?
“Out of the total child respondents, 53.22 per cent reported having faced one or more forms of sexual abuse that included severe and other forms. Among them 52.94 per cent were boys and 47.06 per cent girls,” said the report. ?
A total of 12,447 children were surveyed for the purpose of the report across five categories—children in family environments, children in schools, children in institutions, children at work, and street children.?
While sexual abuse—and sex in general—remains a taboo subject in India, and reporting of incidents is widely believed to be lesser than the actual number of incidents, the reporting of abuse of boys is believed to be even lower. ?
Sexual abuse of young boys remains not just a socially neglected topic?but is not even covered by the ambit of rape laws in India which only consider acts of rape committed against women as rape. This lacuna was filled to some extent in 2012 when the Protection of Children from Sexual Offences (POCSO) Act came into force, which addressed the abuse of boys and made it a gender-neutral offence.
Rape is universally defined as a sexual assault involving penetration. ?
In 2012, the United States amended the definition of rape to make it a gender-neutral offence. The 2003 British law governing sexual offences also makes rape a gender-neutral law. ?
“Rape is a crime that is committed primarily by men against women. However, it is also perpetrated against men and boys...because penetrative offences are gender-neutral,” says a top British official in a 2019 government report.?
Indian law, however, continues to maintain rape as a gendered offence, one that’s perpetrated by a male against a female.?
Section 375 of the Indian Penal Code (IPC) states that a man commits ‘rape’ when he penetrates a woman, including orally, digitally (by hands), and any foreign object. If a man is subjected to the same, the alleged perpetrator cannot be charged with IPC Section 375 because of the gendered definition. ?
POCSO addressed this critical gap in the law with respect to children. Section 3 of POCSO covers ‘penetrative sexual assault’ —rape— and Section 4 lays out the punishment for the same, which is at par with the punishment for ‘rape’ laid out in IPC Section 376. ?
“It’s a misconception that only girls are sexually abused and that POCSO only covers girls. POCSO is actually a gender-neutral law which addresses the gender-neutrality of sexual offences,” says Supreme Court Advocate Rishi Malhotra. ?
Under POCSO Section 4, a convict of ‘penetrative sexual assault’ will be punished for at least 10 years, extendable to life imprisonment, and a convict who wronged a child under 16 years of age will be punished for at least 20 years extendable to life imprisonment “which shall mean imprisonment for the remainder of natural life of that person”. ?
An incident in Delhi last month brought?to the fore yet another issue concerning children that often goes unnoticed—crimes by minors, specifically sexual crimes among minors. The case brings together all aspects concerning minors that need to be addressed. ?
A 10-year-old died in a Delhi hospital in October weeks after he was sexually assaulted by three other children, one of whom was his relative. As per reports, the boy was assaulted on September 18 but it was only on September 22 that he was taken to a hospital and it was only on September 24 that his family gave a statement to the police after much counselling and the intervention of the Delhi Commission of Women (DCW), which intervened at the request of the child’s mother. ?
The mother told the media that her son lied about his injuries for days and only narrated when she pushed him after he fell sick. She said he told her that he was sodomised, tortured with bricks and rods, and that they even inserted a rod in his private parts. She added he was scared?to tell the truth. She wondered why the accused did what they did as her son was cordial with all of them. After losing her son, she wants justice for him.
Two of the three accused minors—called juveniles in legal parlance—were apprehended and subsequently released. The Delhi Police said the case against them is further weakened by the fact that the victim could not give a statement to the magistrate and appropriate medical evidence in the case is lacking. ?
“There is a degree of shame attached to a boy or man being sexually abused, so many cases of abuse of boys are not reported out of this shame factor,” says Delhi-based lawyer and criminal psychologist Anuja Kapur.?
Under POCSO, the punishment for the boy’s sexual assault would be at least 20 years and IPC Section 303 lists life imprisonment and death sentence as punishment for murder. But even if the accused boys are convicted for the sexual assault and death of the boys, they will not face these punishments as the law governing crimes committed by minors—the Juvenile Justice Act, commonly called the JJ Act— states that a child could only be punished for a maximum period of three years. ?
There have been calls for amending the JJ Act, and the law was amended in 2015, but broader issues still remain largely unaddressed when it comes to children and crimes, with the principal concern being a lack of understanding of offenders’ actions. ?
Criminal psychologist Anuja Kapur says it’s critical to understand the mindset of a child—or an adult for that matter—who has committed a crime. She emphasises that the driving force of the justice system is not retributive but reformative. ?
“We don’t have an understanding of crimes. The situation is that we end up hating the criminal, not the crime, and that leads to calls for an ‘eye for an eye’ kind of system. But we need to understand why a crime is being committed—whether it’s a situational crime, an environmental crime, etc,” says Kapur. ?
She goes on to flag the shortage of professionals dedicated to criminology — the study of crime and criminal behaviour. When she began practising in 2007, says Kapur to Outlook, the perception was that criminologists are “mental doctors”. ?
When we come across an accused, or a convicted juvenile—called “juvenile in conflict with the law (JCL)” in legal parlance, we need to understand whether it’s a serial offender, a first-time offender, or a habitual offender, and we need to assess whether the child would commit the crime again if given parole, says Kapur, emphasising that understanding the psyche of the child is very difficult but equally important. ?
But what drives a child as young as ten or 11-year-old to commit a crime as heinous as sexual assault and murder, such as in the case from Delhi reported last month? Kapur says there are several factors. ?
“There are hereditary reasons at times, such as when a child grows up with criminal-minded parents. Peer pressure is a great factor too,” says Kapoor, noting that the juvenile involved in the 2012 Delhi gangrape case—known as the Nirbhaya case—was in the company of criminal-minded adults. ?
She further says, “In around 50 per cent of cases, genetic and hereditary factors are at play, psychotic disorders are present in around 25 per cent of cases in which brain functions are affected either by damage during the time in mother’s womb or because of an injury later affecting the prefrontal cortex area of the brain, and socio-economic factors are at play in another 25 per cent of cases.”?
In the context of sexual offences, Kapur says it’s essential to see how much kick a child gets from the act or the idea of an act. The more the kick, the more the child is likely to go ahead with the act. Then watching porn and intoxication are also factors affecting their behaviour.? “Children living on the streets, as young as five or six, are consuming cigarettes and liquor. They could also be exposed to pornography and peers who influence their minds and actions,” says Kapur. ?
Socioeconomic reasons, such as poverty, unemployment, and the home the child grows up in, are key to understanding the behaviour of a child along with the peer group that the child is in and whether they are exposed to intoxicants and porn which might leave deep impressions on a young mind. A child living on the streets and consuming porn, often in the company of older peers, could very easily come to believe the content on the screen is how it is in real life and, in that case, the notions of consent or safe sex could be hard to grasp, or the understanding of consequences of making unsolicited sexual advances on a person. ?
Kapur stresses that while class can be a factor, it’s not the case that upper classes don’t see such acts. ?
“In urban areas, the influence of people and money can hush a complaint but that’s not a tool that the accused in rural areas or accused from poorer sections have, so cases from among them come to light, but it’s not that crimes among children are limited to poorer sections alone,” says Kapur. ?
The Juvenile Justice (Care and Protection) Act, 2015 —commonly called the JJ Act— governs the subject of children in conflict with the law. ?
Supreme Court Advocate Rishi Malhotra says the law, originally enacted in 1986 and amended in 2015, can be classified in the pre- and post-Nirbhaya periods. ?
The ‘Nirbhaya Case’ refers to the gangrape and murder of a physiotherapist in Delhi in 2012, the brutal details of which led to nationwide outrage and massive street protests in Delhi. ?One of the accused was found to be a minor and he was said to have been the most brutal of all rapists involved. Despite that, he was sent to three years in a reform centre under the provisions of the JJ Act. This led to great outrage and this is believed to have been behind a key amendment to the law. ?
The JJ Act was amended to state that a minor aged 16-18 could be tried as an adult if the Juvenile Justice Board (JJB) is satisfied that the mental state of the accused allowed them to understand the consequences of their crimes.?
The law states, “In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.”?
If the JJB is satisfied, it can “pass an order that there is a need for a trial of the said child as an adult, then the Board may order the transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences”.?
Even then, highlights Malhotra, a child is not sentenced as an adult after conviction. ?
“Even when a juvenile aged 16-18 is convicted as an adult for a heinous offence, the juvenile is not sentenced in a manner similar to an adult. For the same offence, an adult could be sentenced to death or life, but a juvenile even when being tried and convicted as an adult is not sentenced to life imprisonment or death. A punishment short of these two punishments is handed to them,” says Malhotra, who specialises in criminal law. ?
When asked about the idea behind setting the age of 16 as the criteria for trial as an adult even when children as young as 10 or 12 are committing what would otherwise be heinous offences, Malhotra says only the drafters of the law would know the intention, but he goes on to flag an “absurdity” in the 2015 amendment. ?
“In the original JJ Act, enacted in 1986, a child was defined as a person up to the age of 16 if it’s a boy and up to the age of 18 if it’s a girl. The 2015 amendment pushed the age to 18 irrespective of gender and then inserted the provision that children aged 16-18 could be tried as adults in case of heinous offences,” says Malhotra, explaining that ‘heinous offences’ are those crimes for which the punishment exceeds seven years of imprisonment. ?
The general perception is that the provision to try a juvenile as an adult was borne out of the outrage over the juvenile involved in the Nirbhaya case.?
Malhotra tells Outlook, “Ideally, the age to consider a minor should have been reduced since children get mature much quicker nowadays. But the amended law absurdly increased the age to 18.”?