In the spirit of anger & revenge

The Juvenile Justice Act has been amended in the wake of the outcry over the release of the juvenile convict in the December 16, 2012, case, after serving his sentence. There are many reasons why this is unfortunate and misguided. Policy decisions must not be made in the spirit of anger or revenge. The Delhi Commission for Women and our politicians know that law cannot be applied in retrospect to an older case. Creating a lynch mob outcry in the December 16 gangrape case is highly irresponsible on the part of the media.

We strongly oppose moves that are not in the interest of justice for women. We don’t need severe punishment in extraordinary cases. The real deterrent will be the surety of just and timely punishment of every single rapist. Jailing juveniles in adult jails has not worked in other countries, and studies in the US have concluded the same.

We must all consider the facts and recognise the real issues that confront the struggles for justice in rape cases. The Justice Verma Committee, set up to respond to the cry for justice that followed the rape and murder of the paramedic, rejected both death penalty and sending juveniles into the adult courts and jails. The committee, quoting extensively from international studies, and praising the maturity of women’s organisations on the issue, noted: “We have heard experts on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being tried for offences under various laws of the country. We must confess that the degree of maturity displayed by all the women’s organisations, the academics and a large body of thinking people who have viewed this incident both in the criminological as well as societal perspective humbles us... We are of the view that the material before is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years.”

A false hype has been created that rape by juveniles is “increasing”. The fact is that juveniles are accused in a very small percentage of total rape cases. And of those cases, a very large proportion comprises cases of consensual love among teenagers, in which parents of the girls have falsely filed “rape” charges. Many such boys tend to be from the oppressed castes.

The “common sense” logic is “rape is an adult crime”, and if anyone is mature enough to rape, he should be mature enough to be punished.

This is a mistaken understanding of the concept of “maturity”. Sexual impulses and the ability to commit a murder or a rape can develop in children as young as 10 years of age. But the fact is that this ability does not signify “maturity”. Based on scientific studies, it is now internationally accepted that in adolescents, the frontal cortex of the brain — called the CEO of the brain — that controls the ability to plan, take decisions, correctly assess risks and set long-term goals, is not fully developed. This is why young persons must not be treated as adults.

Neither the rape victim nor her friend in their statements on the crime said the juvenile was the “most brutal” — this is a lie concocted by the police and fed to the media.In any case, any changed law in future cannot be applied with retrospective effect to past cases.

Sadly, an argument has been constructed that we need a change in the law to allow us to selectively punish juveniles in some cases, i.e. the cases which receive media hype and selective outrage. The fact is that treating some rapes as “extraordinary” allows us to treat most rapes as “ordinary”.

We teach young boys in our society that “real” rapes are committed by “animals” who deserve brutal punishment. But at the same time, the same young boys learn from adults that rape is no big deal. When police in Bastar rape a 14-year-old, they see no media or political outrage. They see that the rapists of dalit girls in Bhagana have escaped. They see how the rapists of Muzaffarnagar are treated as heroes and openly defended by a minister (Sanjeev Balyan) in the Modi government. They see how witnesses in the Asaram rape case are killed and how thousands of his supporters openly propagate that the rape laws “break society”.

They see how the women who came forward to complain against Tarun Tejpal or R.K. Pachauri are blamed and shamed, while the men they accused remain untouched by the law.

So our young boys do not learn that rape is morally wrong and is a crime followed surely by punishment. Instead they learn that “some rapists are animals” who deserve to be punished, while most rape complainants are liars; and most responsibility to prevent rape lies with women and not men. As long as our system and our society teaches these lessons, we cannot deter rape and sexual harassment.

The system has failed to deliver justice for most complainants who came forward to seek justice under the new rape laws. Yet those who rule the system — instead of implementing existing laws and ensuring justice in each case — prefer to divert attention towards yet another new “severe” law.

Between 2005 and 2010, 15 US states enacted laws to prevent young people from entering the adult criminal justice system.

The existing Juvenile Justice (Care and Protection of Children) Act, 2000, does not “allow juvenile offenders to go free”. The juvenile rapist in the December 16 case has not, unlike many adult offenders named above, gone free. He has been punished and has served his sentence in a juvenile justice home as per the law. What’s needed is better reform and rehabilitation measures both for juvenile and adult offenders. Only such measures will make our society safer. Not the reduction of the age of juvenile criminals from 16 to 18 years.

Kavita Krishnan is secretary of the All-India Progressive Women’s Association