President & Group Managing Director: Dr.Shelly Ahmed | Editor in Chief & Group CEO: M H Ahssan

Tuesday, August 02, 2016

Prespective: The Law’s Blindness To Teenage Sexual Consent Is Criminalising Young Boys


By Dr.SHELLY AHMED | INNLIVE

Those working in juvenile justice say they negotiate tricky issues related to consent, caste and parental pressure while dealing with juvenile rape cases.

Six months short of his 18th birthday, Aditya* met a 16-year-old girl from a neighbouring school. The two got into a relationship, but this did not sit well with the girl’s parents, according to Aditya’s mother.

Seething with disapproval they reported the boy to the local police, and an FIR under Section 376 of the Indian Penal Code was filed against Aditya for allegedly having sex with a minor. That day a large van drove up to his small home in a Mumbai suburb where he lived with his mother and brother. At 8 pm he was arrested.

‘It was love, not a crime’
“Such a large vehicle, for my son?” his mother said, laughing at the absurdity. She spoke while waiting outside the Dongri observation home where the Juvenile Justice Board conducts its hearings. Children apprehended by the police are brought before the board and lodged in the observation home pending a final order, or until they get bail.

His mother looked vexed, waiting to catch a brief glimpse of her son as he was called before the board. “It was love,” she said, “not a crime.”

She said that she tried to reason with the young couple, telling them not to get romantically involved at such a young age. But when the girl’s parents got wind of it an adolescent teenage affair turned into something else: a serious crime.

Sunita Ghadge, the advocate for Aditya, and a defence lawyer in Mumbai dealing almost full-time in juvenile matters, said in her estimation 50% of such cases ended in acquittals because the girl said she had consented to sex. In other words, turned hostile before the board.

In Aditya’s case, the enquiry is still at a nascent stage. But in the meantime, he has been shaken by his experience in the home and has no hopes for the future, his mother said. “The girl herself said it wasn’t rape,” she continued. “She said it was mutual. But no one listened because she wasn’t 18.”

Young love
Less than 100 km away, on a Wednesday night, Prakash* was with Sunanda*. The young teenage couple had just reunited for the third time; Sunanda had fled home and gone to Prakash’s place. In the preceding year this had happened twice before – the two had eloped, then been separated by the force of parental disapproval amplified by the backing of the law.

Sunanda’s parents had earlier gone to the police, lodging an FIR under the sections of rape and kidnapping against Prakash. He was apprehended and sent to an observation home. Prakash couldn’t understand what was happening to him and why he had been accused of a crime. “I am not a criminal,” he said.

After he got out on bail, the two got together again, and were separated once more. The night they reunited for the third time, Prakash sounded happy, and even put Sunanda on the phone.

Two days later, Sunanda was whisked away from him once again. This time she was sent to a home for vulnerable girls lest she run away once more.

“I can’t live without her,” said Prakash. “They won’t let me meet her, and if I don’t try and get in touch, she will think I have forgotten her.”

Both Prakash and Aditya are facing charges of rape – neither can comprehend how having a consensual physical relationship brought them to this place.

What the statistics say
“Such cases are difficult for everyone concerned,” said a social worker, who estimated that about 90% of rape cases against juveniles were teenage romances. “The children get quite emotional. The boys feel they have been wronged. They are unable to understand the issue of technical rape.” But the law is blind to teenage consent.

In 2014, the most recent year for which national crime statistics are available, 2,144 cases of rape were registered against juveniles in India, comprising 5.9% of total juvenile crimes (33,526). Of this, 208 rapes were recorded in Maharashtra – the second highest of any state after Madhya Pradesh.

The number of crimes recorded against children has increased although the proportion of juvenile crime with regard to overall crime has remained at 1.2% from 2012 to 2014.

Still, such statistics were brandished as part of a campaign to urge for minors to be tried as adults for offences such as rape and murder.

The new juvenile justice law, effective from January 15, now allows for 16 to 18 year olds accused in cases of rape to be tried in a special court as adults. But the juvenile justice board would have to first conduct a preliminary assessment before proceeding to do so.

It is difficult to say how many of the rapes recorded against minors are actual sexual acts of violence in the absence of consent and how many are like Aditya’s: technical rapes that occupy that awkward space in the ambit of rape because the girl was a minor, regardless of consent.

Juvenile justice board proceedings are not in the public domain making it impossible to analyse orders passed by the boards. However, those working in the system say the true picture of juveniles committing rape is not as horrific as statistics suggest, because so many of these cases are of teenage couples.

Over several days, this reporter spoke to more than 25 people with experience of the system, including lawyers, social workers, researchers as well as juvenile justice board members from seven different districts. While juvenile justice board members from two districts said such “love affairs” comprised 90% of the rape cases heard by them; the other five members put the figures between 30% and 70% in their respective districts.

The common refrain was that a boy and girl might run away, the parents then file a missing complaint, which later turns into an abduction case. When the children return or are traced, a rape case is lodged against the boy. It need not always happen exactly this way, but often both charges of rape and kidnapping are slapped on the boy.

It’s not black and white
Rape is classified as a heinous offence – which means, if convicted, a person faces a term of seven years or more. But by all accounts, charges of rape brought in the juvenile justice system aren’t that simple.

“If it was mutual then why should just the boy suffer?” asked one juvenile justice board member. Another member recalled a case of a girl and boy getting married and declaring their love to the board members even before the matter was disposed of. Another member spoke of a case where the boy was acquitted and later came to meet the board member after marrying the alleged victim and bringing their child along.

“Such matters are difficult to handle,” said one member. “The statistics tell one story but genuine rape cases are few.”

But since the law deems that no consent can be given by those below the age of 18, the police have no choice but to lodge complaints. “We can’t do anything,” said one police officer who has dealt extensively with children.

And yet, when the juvenile justice machinery rolls on and the matter comes before the board, it is up to the board’s discretion. Board members said they sought to take a holistic view of the matter, trying to understand background and circumstances involved, parental pressure if any and whether a girl was changing her statement. In some cases matters are further complicated if the girl is pregnant.

Some said instead of punishment, they tried to counsel the children in such situations, telling them to focus on college and education rather than love and marriage. “When it appears that it is a love affair, we have to consider that,” said another board member. “You have to be a bit liberal about this.”

Age of consent
Since it is impossible to ascertain conviction rates in such matters, perhaps we can look to a recent study from the National Law School of India University in Bengaluru for an indicative picture.

The researchers analysed 667 judgements under the Protection of Children from Sexual Offences Act in cases of sexual offences committed by adult men against minor girls. The conviction rate was “a measly 16.8%” and in 67.5% of the cases, the victim turned hostile.

Of these, the victim turned hostile in 99% of the cases where the girl and man were married and 96.07% of cases where they were in a relationship. This suggests that when minor girls willingly enter a relationship with someone who is above 18, it could result in the man being accused and convicted.

It is possible then that these findings can be extrapolated to cases where both the accused and the victim are minors.

While victims in cases of Juvenile Justice Board proceedings often turn hostile before the board, making statements like “this never happened”, or “I don’t know this person”, on some occasions they face parental pressure to change their statement, said experts. “But if we speak to the girl alone, we usually get the truth,” said a board member. This member said some cases might have involved consensual sex where the boy promised marriage, but when he didn’t follow through, the girl sought to book him.

In India, sexual consent given by a woman based on the promise of marriage that later turns out to be false, is recognised as rape. However, with minors the issue of consent does not even arise.

Lower age of consent?
Some child rights groups have been arguing that the age of consent be lowered to 16. “We’ve been advocating that for a long time,” said Bharti Ali, co-director of the Haq Centre for Child Rights. “You cannot criminalise young people for sexual acts that are consensual. By criminalising young people how are you protecting them?”

The broad conundrum is this then: a child can now be tried as an adult at 16, but cannot lawfully give sexual consent or have sex at that same age.

Often it is a question of what is referred to as the girl’s honour being at stake.

“What we hear from the field is that such love cases, arise out of concern over the family’s honour,” said Nicole Rangel, co-founder of Leher, a child rights group. “Unfortunately none of the official data will tell you this. It’s perplexing to workers how this is a rapidly increasing phenomenon.”

Those working in the field say that going by anecdotal evidence, Section 376 is an easy tool to break up young couples transgressing boundary lines of caste or religion.

Most such love affair cases involve children in the 16 to 18 year age group, according to conversations with various experts.

“As a society we do not approve of children exercising their choices and the right to their bodies,” said Shahbaz Khan, a social worker with Haq. “There might be resistance from parents because they believe children should follow what they say. Of course, there are also issues of religion, caste and class that might play a role.”

Rape is a serious crime and it is no one’s argument that offenders be protected, but in these so-called love cases, many believe that both the boys and the girls can be considered equal participants and thus, equally qualify as victims.

Those who have counselled the offenders – the boys – find them confused, troubled and despairing. One boy’s family claimed they were constantly getting demands for money to settle the case, and they feared for their safety, a situation that social workers said they had seen before.

“I would say below the age of 18 both are victims, both should be treated with compassion,” said Harish Shetty, a psychiatrist who has deep experience of the juvenile justice system. “The boys feel extremely traumatised,” he said. “And need a lot of support.”

Shetty deals with boys involved in such love cases about three to four times a year.

In the eyes of the law they are possible rapists, but they also happen to be children. “They might continue to harbour that emotional attachment or some develop bitter feelings,” said Khan. “The families may then not allow them out of the house, or feel ashamed about their reputation.”

Prakash, for instance, said he contemplated suicide the night his girlfriend was taken away once again.

Not far away, Arun* has lapsed into sadness and refuses to speak to anyone since he emerged on bail following a similar case. His girlfriend’s parents disapproved of the relationship and he was arrested. Arun spent a few days in the observation home, terrified and dispirited. “He spent a whole month just crying,” said a relative.

Unable to appear for his school exams, Arun is now trying to find a normal routine after this unforeseen brush with law enforcement. “We had never seen the inside of a police station,” said the relative, “until now.”

Arun and the girl became friends on Facebook and then got into a relationship. “Of course rapists deserve punishment,” the relative continued. “But this is not rape.”

No single solution
And yet, some say, even though a minor girl might give consent for sex, she might do so without comprehending the full consequences, and thus be in need of legal protection. She might expect marriage, and find that the boy doesn’t want that. She might suddenly find herself shunned, cast out of her home or reviled in her neighbourhood. “So she can still end up as the victim,” said one social worker. “A girl might be stigmatised. There might be future implications.”

Which is why, the broad view remains that such matters be taken on a case-by-case basis. Juvenile Justice Board members and social workers say this is what they are largely trying to do, as there can be no one-size-fits-all solution in these matters.
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