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How Treating 16-18 Year Olds Like Adult Criminals, Can Backfire

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By Arati Nair:

In Hyderabad, an 8-year-old girl was raped by a minor who was her neighbour. The case was reported days after the incident as parents were reluctant to come out with the complaint.

A 16-year-old girl returning from a marriage function was gang-raped by five minor boys in Gujarat.

A 6-year-old, visiting her grandmother in Bannerghatta was raped by two of her cousins while playing outside the house.

juvenile justice

The national discourse surrounding rape in India, when it broke the shackles of taboo, snowballed into an affair of incessant debates, thanks to the persistent media glare. The civil society, NGOs, legislators, police officials and the aam aadmi have all been quick to point fingers and distance themselves from a system that breeds such reprehensible elements of perversity.

It all came to a head with the infamous Nirbhaya case of December 2012 in which one of the accused, a minor, was convicted and tried by the Juvenile Justice Board, earning a sentence of three years- a punishment which was deemed by a large section of people as far too lenient for such an inhuman act. Subsequent reportage of cases of sexual assaults or rapes perpetrated by minors has only aggravated public discontent.

True, the incidents mentioned at the beginning of this article warrant a strict handling of wrongdoers, irrespective of age. However, retributive justice has backfired in countries where a stringent juvenile justice system is already prevalent. In her book, Burning Down the House: The End of Juvenile Prison, Nell Bernstein explains how juvenile incarceration facilities in the US become breeding grounds for crime and sexual exploitation. Serving a sentence in prison would traumatise the child, making him/her vulnerable to drugs, criminal gang-culture and sexual abuse. The juvenile homes are hardly an improvement over prisons. These centres are ill-equipped with actuarial risk assessment tools that could identify repeat offenders or rehabilitate them.

Numerous scientific studies show that in adolescents, the part of the brain that controls the ability to take decisions or correctly assess risks is not fully developed and so, these youngsters sometimes become reckless thrill-seekers, ignorant of the consequences of their actions.

The scenario in India is complex. Here, more than ninety percent of rapes occur within the household or familiar places, committed by trusted persons. Most children accused of rape have themselves been victims of sexual and physical abuse in the past.

The incestuous rape of two sisters by their brothers in Wadala, with their mother as the abettor, portrays the degradation of moral standards and the catastrophe unleashed by the deep-entrenched, skewed ideals of patriarchy. Corporal punishment is still rampant in many schools in India, which fuels resentment and bitterness among children. A section of the RTE Act which strives to negate this practice has been shoddily implemented at best. The National Policy on Child Labour and the Child Labour (Prohibition and Regulation) Act, the Protection of Children from Sexual Offences Act have remained mere archived documents with inefficient execution.

Enough has been said about the proposed amendments to the Juvenile Justice Act which, if enforced, would treat children aged 16-18 at par with adult criminals. Playing to a frenzied gallery, the government, in an unprecedented show of assertiveness, pronounced a law that would dole out punishment to the perpetrators of ‘heinous crimes’ (rape, murder etc.) – starting with children. With the ex-UPA Minister for Women and Child Development, Krishna Tirath having suggested similar changes in the existing law in 2013, Shashi Tharoor’s condemnation on the floor of the house reeks of opportunism and hypocrisy. None of the political dispensations in India have sincerely embraced the problems of our children or looked for long-term solutions.

The government, in its infinite wisdom, must first peruse the causes of failure of these wide-ranging legislations. Our oversight in this regard is glaring. As a family, as a society, as a nation we have failed to nurture the happiness of our children.

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  1. Monistaf

    @Arati, I like it that you are a humanist and I think you bring up a very important point about the dangers of criminalizing young minds. I read the story of the 17 year old accused in the Nirbhaya case. He made a living on the streets of Delhi from the ripe age of 12. I can only imagine what happens to a 12 year old boy living on the streets. Even though it absolutely does not justify what he did, you cannot help but try to analyze and understand where so much anger and cruelty comes from. Analyzing the reasons for such brutality does not mean we are trying to justify the crime, it is the first step in an attempt to prevent repetition in the future. He was most likely brutalized, beaten, raped and abused himself but had no where to go. Unfortunately, the public and government it seems, does not have the patience or the courage to be rational in cases like these. They often have a knee jerk reaction due to overwhelming public sentiment and never bother to look at the reasons for his behavior and thanks to feminists, any such discussion is considered as being a rape apologist. We have to remind ourselves that injustice anywhere, is a threat to justice everywhere.

  2. B

    It is funny that girls, regardless of age, walk away free after falsely accusing men of rape, even when the men end up committing suicide. Why are women not punished who destroy men’s lives with false charges of dowry, molestation, rape, assault, battery, etc?

  3. Batman

    Thanks for stealing my pic.

  4. Batman

    Where is women empowerment when mothers, wives, sisters, and daughters suffer due to false cases under 498A, 125CRPC, DV act and fake rape cases on husbands, brothers, fathers, and sons?

  5. B

    Any comment which does not favour women is either deleted or held back for over 24 hours….very unethical.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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