Opinion

Why death penalty or lowering the juvenile age won't stop rapes of children

If implemented, such measures will actually further deter reporting. We need to focus on what can really make a difference to child safety and help prevent rapes and punish the culprits.

For the past week, the issue of rapes of children has been the subject of intense discussions and protests, following news of three cases reported from Delhi. Public discourse – shaped by political parties, media, and even some of the protestors – on the issue of sexual violence and child sexual abuse, tends to steer far away from the heart of the problem.  It stays focussed on the “safer” terrain of outrage over stranger rape, political control over police, recommendations and promises of closed circuit television surveillance and the question of capital punishment.

While Indian media focuses on the competitive posturing of the Central and Delhi governments over Delhi Police, the international media uses these incidents as a peg to talk about “India’s rape problem”, “Indian culture” and "how things have not changed since December 16".

Meanwhile, the Central government – and now the Delhi government too – is seeking to treat juvenile rape-accused the same as adults and introduce death penalty for child rapes.

Not only do such responses keep the conversation at a very superficial level, such measures will actually further deter reporting of child rapes, particularly if the rapist happens to be a close family member. They also effectively drown out the demands for steps that can really make a difference to child safety and help prevent and punish rapes of children.

In order to address the issue of child sexual abuse and rape seriously, we first need to understand some facts about it and learn from the experience of activists working among child rape survivors.

When 'protectors' are the perpetrators

What we need to admit first about child sexual abuse is that rape by strangers represents a minuscule percentage of a very vast problem.

The perpetrators overwhelmingly tend to be close family members, neighbours, or persons in authority (teachers, religious figures, etc). At 53%, more than half  of children in India have faced some sexual abuse or domestic violence. The slogans and sound bytes against rape by strangers contrast oddly with the ringing silence around the taboo subject of rapes and abuse of children by family members. Is the repeated rape of a two or three-year-old child by her father or uncle for several months, or even years, any less heinous than the gang rape of a child by strangers?

Why, then, is there so much public discussion and outrage on the latter but virtual silence on the former, which is much more widespread?

Flavia Agnes, feminist activist lawyer and founder of Majlis, a group working on sexual violence cases in Mumbai, recently pointed out:
“In the 241 FIRs filed in Mumbai between March 2014 and ’15, 12% cases involved rapes by fathers and stepfathers, while rapes by strangers in public places were 3%. Yet our discussion on girl safety revolves around street lighting and CCTV cameras.”

What is true of Mumbai is equally true of Delhi. Rukmini S, in her study of nearly 600 rape cases in Delhi that came to trial, found that a substantial number involved slum-dwelling men assaulting the minor daughter of his neighbour “either by luring her while she was playing outside or taking her to his house”. One of the recent cases in Delhi also falls in this category. In the majority of such cases, Rukmini S found, the courts tended to convict the accused. But does that mean that most child rapes are reported and punished? Far from it.

The NDTV Truth vs Hype programme titled "The Invisible Reality of Rape in India"  quoted a detailed study by Majils which pointed out that “within the ambit of acquaintance rape, rape by a friend, neighbour or trusted person was nearly double that of rape by a family member. But this may also be because abuse by family is the hardest to report.

The intimate enemy

Child sexual abuse shares the same intimate space that domestic violence does. Most perpetrators of child rapes are not "abnormal", "perverted" strangers who are "animals". They are men we are likely to know, trust and even love. Child rapes happen most in the familiar milieu of the patriarchal household – the kind that demands obedience and subservience from children and women. Another point to remember is that not only girls but also boys are victims of child sexual abuse It is worth quoting Flavia Agnes at length:
Rape has been on our mind since December 2012. We’ve discussed it, protested against it, demanded more stringent laws and even got them. But the focus, the discourse and the concern has been restricted to rape by strangers. We don’t take to the streets when a girl accuses her own father of rape over several years because this threatens to shake the very foundation of our society, the unit held most sacred  – the family.

“A patriarchal society has to protect the patriarch, whatever the cost. That’s why rape or sexual assault within the family, by a father, is a sure shot conversation killer. Bring it up anywhere and a hush descends, discomfort rises. It’s a story India doesn’t want to hear. But don’t be fooled by the silence around it. It doesn’t mean that these incidents are rare. The silence is a conspiracy ‒ to protect the alleged rakshaks even if they are, in reality, bhakshaks.”

Child sexual abuse within families is hugely under-reported. One reason is that children themselves may be persuaded by such perpetrators that the abuse is "loving", a "special secret" or  "a game" – they may not recognise the abuse as abuse even if they are uncomfortable or in pain. Or they may be intimidated by the perpetrator into silence. The culture that demands children’s absolute obedience to adult authority figures deters the child from reporting unwanted, uncomfortable touch or even prolonged abuse. When children do report violence by a loved, trusted family member, they may be disbelieved and silenced.

In many cases, it is the child’s mother who recognises the abuse and reports it. If the child is older (say, a teenage girl), they may report it themselves. But often mothers and daughters of victims, economically dependent on and socially subordinate to the perpetrators, succumb to the pressure to withdraw the complaints and turn hostile.

A mother who reports the abuse of her child and names her husband or some other male authority figure as a perpetrator also faces the same kind of social hostility that women who report domestic violence do. In other words, mothers are accused of using children to level "false allegations" for property or for "revenge" on husbands.

This is what seems to have happened in the case of the French diplomat in Bengaluru who was accused of raping his three-year-old daughter. In spite of medical evidence that the child had faced prolonged sexual abuse, the dominant media discourse turned his wife into the accused – alleging that she had fabricated charges to frame her husband. This is also true of scores of such cases that are less known.

Police and courts

The Delhi Police chief has claimed that since most perpetrators are known or related to victims, there is nothing the police can do to prevent such crimes. But the police cannot be let off the hook so easily.

The fact that the perpetrators are known or are family members ought to make matters easier for the police. Instead, the police themselves lead the charge of those who disbelieve complainants, delay FIRs and deter reporting.

Let me recount two instances from the experience of the activists of the All India Central Council of Trade Unions who have had to develop a working knowledge of tackling child rape cases. In one such case in Wazirpur, where a man had raped the daughter of a neighbour from his own village, the police, in spite of pressure from activists, could not register the case all night and it took several hours in the day time before the First Information Report could be registered. The reason was that the law requires that the child’s statement be recorded in the presence of a policewoman and an activist from a non-governmental organisation. The police force is short of policewomen and none such was stationed in the local police station – so it too hours to get one from elsewhere. The NGO member also had to be from an NGO recognised by the police. This member took long to arrive, and when she did, she was more inclined to act in tandem with the police rather than as an advocate of the child’s rights and interests.

Finally, the closest hospital had no dedicated space to examine rape survivors – and so the child had to wait hours at the hospital for a room to be cleared for the examination to take place. Meanwhile, the child’s family was under pressure from persons from their village and community – abetted by the police – to withdraw the complaint. Eventually, the man was arrested thanks to the efforts of the activists, but was let off on bail subsequently because the police did not seriously oppose grant of bail.

In another case, a woman worker had complained to the police when she discovered that her father-in-law and brother-in-law had been systematically raping her three young daughters for years. Her husband supported her in this complaint. The children’s grandfather was arrested. But the police refused to act against the uncle, who continued to intimidate the children. The woman and her husband were forced to withdraw the children from school and miss work in order to protect their children. When one of our activists went to speak to the police about the case, the Station House Officer openly told him, “It’s a false case, the woman is lying to get property from her in-laws, and her daughters [children between 5-12 years of age] are prostitutes.”

Pratiksha Baxi’s book, Public Secrets of the Law: Rape Trials In India, in a chapter titled "The Child Witness on Trial", speaks of how courtrooms are hostile to the child rape survivor. The defence lawyers cannot bring in the character or past sexual history of a child rape survivor. But instead, they can – and do – introduce the "character" and past sexual history of the child’s mother – to suggest that the child’s testimony is coached by the mother for some ulterior motive.

Victim blaming, in such cases, takes the form of blaming and shaming the mother of the victim.  Such blaming is enabled by a larger milieu and discourse that discourages reporting of domestic violence and brands domestic violence cases as "false cases" filed by greedy women for money or property.

What Needs To Be Done?

 The wrong way to frame this question is to ask, "What punishment do child rapists deserve? What punishment will instil fear and deter such rapes?"

The real problem, as we have seen from the experiences detailed above, is not that punishments are inadequate. The real problem is that the crime is under-reported and rendered invisible – with children suffering in silence for years on end, often in the custody of the rapist. And when such cases are discovered and reported, the system of policing and trials itself can work to deter justice, leaving victims alone to resist the pressures of bribery and intimidation and emotional blackmail.

What we need to ask, then, is: What are the measures that can prevent child rapes and sexual abuse, and encourage reporting of such rapes and punishment?

The first thing to do is to bring the issue of child sexual abuse out of the shadows, and enable children to respect the boundaries of their bodies, tell "good" from "bad" touch, and safely report sexual abuse. The article by Flavia Agnes begins by narrating how a 13-year old girl, following a counselling session on sexual abuse in her school, wrote to her class teacher to tell her that her father had been raping her for six years since she was seven, and her mother was not helping.

Such sessions, in schools and communities, can help enable children to recognise and report sexual abuse. It can’t be stressed enough that be it in families or in schools, the culture of unquestioning obedience to adults and elders needs to be consciously undone – for it is an invitation for abuse of power including physical abuse and sexual abuse.

Children in slums with working-class parents also badly need crèches or child-care centres to ensure that there are safe spaces available for them while their parents are away.

Sexual abuse of children cannot be addressed in isolation from domestic violence faced by women inside their homes. Survivors of such violence need structured support to enable and empower them to approach the police and courts.

Public campaigns are also needed to educate the wider public about consent, autonomy and bodily integrity of women and children. Look around you – have you ever seen advertisements or other campaigns by governments or public institutions that explain concepts of sexual consent and autonomy? Hardly ever, right? Yet, those are the public campaigns that are most needed, not banalities about protecting women and the girl child from stranger-predators.

All the above measures can well be implemented by the Delhi government, with the powers already at its disposal.

What about the police? Certainly, the sensitivity and accountability of the police to child sexual abuse and domestic violence needs to be ensured. As such, bringing the Delhi Police under the purview of the Delhi government will not only promote accountability of the police, but it is also needed in order to be able to hold the Delhi government properly and fully accountable. Delhi government should not be able to evade responsibility and accountability by pleading lack of power over the Delhi Police.

Misguided measures 

The Delhi government has responded to the three recent child rapes by proposing that death penalty be introduced for child rapes and the juvenile justice age be reduced to 15 years to allow trial of rape-accused minors as adults. It is important therefore to address the question: Will death penalty act as a deterrent?

Even in rape in general, death penalty is no deterrent. The December 16 rape convicts have been condemned to hang, as also the Shakti Mills rape convicts – but that has not stemmed the tide of rapes.

But especially in the case of rapes by fathers or relatives, death penalty for rape will only serve to further deter reporting of such rapes. As Flavia Agnes puts it:
“There is also need for concerned citizens to rethink their stock demand of death penalty for rapists after every gruesome case that comes to light. No daughter will come forward if she knows that her father will hang.”

What about lowering the juvenile justice age – a measure on which Central and Delhi governments are in agreement?

As Mrinal Satish and Rukmini S point out, a recent study of rape cases in Delhi’s district courts showed that the largest category of cases – 40% of all cases that were fully tried – "dealt with elopement and consensual sex between young couples, and the girl’s parents filing rape charges against the boy". The cases of rape by strangers or unknown juveniles are minuscule and cannot be assumed to be the norm on the basis of which laws can be framed.  Mrinal Satish and Rukmini S point out:
“What happens if a 17-year-old boy indulges in a consensual sexual act with a 15-and-a-half-year-old girl — a common occurrence especially in rural parts of the country? Under the proposed new JJ Act, if the Board determines that he should be tried as an adult, he will be tried by a sessions court, which has no option but to sentence him to a minimum of ten years in prison.

“Rape is a violation of a woman’s sexual autonomy. Increasing the age of consent and decreasing the age of juvenility does not enhance sexual autonomy but restricts it, since it negates the agency of the woman to choose a partner, by instead facilitating filing of criminal cases against her partner.”

The arguments against lowering the age of juvenility in “heinous” criminal cases are summarised by me in an article written when the Modi Government first proposed it.

Lip Service to Justice Verma recommendations

It is indeed unfortunate and ironic that the Aam Aadmi Party's Delhi government claims to “be the first to implement the Justice Verma Committee recommendations” but in fact flouts its specific recommendation rejecting  both death penalty and lowering of the juvenile justice age.

The AAP's Ashish Khetan, in a television debate, claimed to have read the Verma Committee report carefully and misinformed the viewers that the report had recommended death penalty for repeat offenders. In fact, the Justice Verma Committee report categorically concluded, after detailed and patient deliberations,:
“In  our  considered view,  taking  into  account  the views  expressed  on  the  subject  by  an overwhelming  majority  of  scholars,  leaders  of women’s’  organisations,  and  other stakeholders, there is a strong submission that the seeking of death penalty would be a regressive step in the field of sentencing and reformation. We, having bestowed considerable thought on the subject, and having provided for enhanced sentences (short of death) in respect  of  the  above-noted  aggravated forms of sexual assault, in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also  to  avoid  the  argument  of  any  sentencing arbitrariness, we are not inclined to recommend the death penalty.”…

Based on a detailed study of international covenants as well as experiences of other countries, the Committee stated: “we do take note of the argument that introduction of death penalty for  rape  may  not  have  a  deterrent  effect.”

On the question of amending the Juvenile Justice Act to lower the age of juvenility in rape cases, too, the Justice Verma Committee report’s observations are worth quoting:
“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 have viewed this incident both  in  the  criminological  as  well  as  societal perspective humbles us.

Quoting extensively from international experience, the Justice Verma report concludes, "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.”

For Ashish Khetan to claim that the Kejriwal government is committed to implementing the Justice Verma recommendations but is preparing merely to “add” something to those recommendations is rather misleading in this context. In fact, the Justice Verma report categorically rejects both these draconian proposals. It does not do so lightly, but comes to this conclusion after careful expert appraisal of all available facts and experiences. We hope that the Kejriwal government will show the same maturity that the Justice Verma report admired in women’s organisations and other concerned citizens on this subject.

Stop the blame game

So what should be blamed for this problem? "Culture" and "mindset"’? Or socio-economic structures that discipline and control women and children?

Finally, it is important to challenge the glib manner in which child sexual abuse and rape in India are blamed by both Indian and international media on "Indian culture" and backward "mindsets".

In fact, we need to recognise that Indian families and Indian state are no different from global capital and market in so far as they all demand disciplined, docile and obedient bodies of women and children. Indian families as well as the Indian state seek to control women’s sexuality, reproduction, and household labour. The global market also wants obedient women and child labourers for providing docile labour in multi-national corporations factories and reproductive supplies and services for the global industry of commercial surrogacy, and for allowing their bodies to be subjected to large-scale violence in the name of sterilisation and population control.

We have seen, again and again, how the moral policing, violence and restrictions on women’s autonomy inside homes is reproduced in schools, colleges/universities and factories/workplaces too. Women and children who learn to defy patriarchal authority and speak out against domestic violence, "honour" crimes and child abuse are also likely to be rebellious in educational institutions and in factories. If families discourage and punish the assertion of autonomy by women and girls, so do schools/colleges and factories/workplaces.

Hanging a handful of rapists or jailing a few juveniles won’t do a thing to promote the autonomy of women, girls and all children. In fact, by bolstering the myth that violence against women and children are perpetrated by "evil strangers" outside the "safe haven of the home", such measures help tighten the restrictions on autonomy inside homes – and in all other arenas as well.

The Delhi government has a real opportunity to make a difference and introduce effective measures that can actually make women and children safer. Will it show maturity and do so? Or will it choose to play with emotions and push draconian laws and surveillance while avoiding the measures that are actually needed?

Kavita Krishnan is a politburo member of the Communist Party of India (Marxist-Leninist) Liberation and secretary, All India Progressive Women Association.

Support our journalism by subscribing to Scroll+ here. We welcome your comments at letters@scroll.in.
Sponsored Content BY 

Do you really need to use that plastic straw?

The hazards of single-use plastic items, and what to use instead.

In June 2018, a distressed whale in Thailand made headlines around the world. After an autopsy it’s cause of death was determined to be more than 80 plastic bags it had ingested. The pictures caused great concern and brought into focus the urgency of the fight against single-use plastic. This term refers to use-and-throw plastic products that are designed for one-time use, such as takeaway spoons and forks, polythene bags styrofoam cups etc. In its report on single-use plastics, the United Nations Environment Programme (UNEP) has described how single-use plastics have a far-reaching impact in the environment.

Dense quantity of plastic litter means sights such as the distressed whale in Thailand aren’t uncommon. Plastic products have been found in the airways and stomachs of hundreds of marine and land species. Plastic bags, especially, confuse turtles who mistake them for jellyfish - their food. They can even exacerbate health crises, such as a malarial outbreak, by clogging sewers and creating ideal conditions for vector-borne diseases to thrive. In 1988, poor drainage made worse by plastic clogging contributed to the devastating Bangladesh floods in which two-thirds of the country was submerged.

Plastic litter can, moreover, cause physiological harm. Burning plastic waste for cooking fuel and in open air pits releases harmful gases in the air, contributing to poor air quality especially in poorer countries where these practices are common. But plastic needn’t even be burned to cause physiological harm. The toxic chemical additives in the manufacturing process of plastics remain in animal tissue, which is then consumed by humans. These highly toxic and carcinogenic substances (benzene, styrene etc.) can cause damage to nervous systems, lungs and reproductive organs.

The European Commission recently released a list of top 10 single-use plastic items that it plans to ban in the near future. These items are ubiquitous as trash across the world’s beaches, even the pristine, seemingly untouched ones. Some of them, such as styrofoam cups, take up to a 1,000 years to photodegrade (the breakdown of substances by exposure to UV and infrared rays from sunlight), disintegrating into microplastics, another health hazard.

More than 60 countries have introduced levies and bans to discourage the use of single-use plastics. Morocco and Rwanda have emerged as inspiring success stories of such policies. Rwanda, in fact, is now among the cleanest countries on Earth. In India, Maharashtra became the 18th state to effect a ban on disposable plastic items in March 2018. Now India plans to replicate the decision on a national level, aiming to eliminate single-use plastics entirely by 2022. While government efforts are important to encourage industries to redesign their production methods, individuals too can take steps to minimise their consumption, and littering, of single-use plastics. Most of these actions are low on effort, but can cause a significant reduction in plastic waste in the environment, if the return of Olive Ridley turtles to a Mumbai beach are anything to go by.

To know more about the single-use plastics problem, visit Planet or Plastic portal, National Geographic’s multi-year effort to raise awareness about the global plastic trash crisis. From microplastics in cosmetics to haunting art on plastic pollution, Planet or Plastic is a comprehensive resource on the problem. You can take the pledge to reduce your use of single-use plastics, here.

This article was produced by the Scroll marketing team on behalf of National Geographic, and not by the Scroll editorial team.