Kalpana Purushothaman, Senior Consultant – Counseling & Research, Juvenile Justice Program, Centre for Child and the Law National Law School of India University
I am a counsellor working with juveniles in conflict with law, most of whom are boys. Some of them have committed heinous crimes like rape, murder, etc. In the wake of the Lok Sabha passing the Juvenile Justice (Care and Protection of Children) Bill, 2014, (which defines such crimes as ‘heinous’) there have been a series of articles in the media supporting and condemning the move in equal measure. The debate on the Bill has raised many important questions which needed to be asked. Should juveniles alleged to have committed ‘heinous’ offences be tried and punished as adults? Would punishing juveniles who commit such heinous crimes deter others from committing similar acts? Would our society, especially women and children, be safer if juveniles are sent to prison instead of reformatory/ correctional institutions?
A few more equally important questions also need to be asked and answers sought. Juveniles have often been portrayed in the media as cold, brutal, remorseless, testosterone-driven young men who are a danger to our society, waiting to kill, plunder and rape. That is because the one juvenile who gets involved in a high profile case gets all the media attention. What about the hundreds of them who are unwittingly caught in the web of crime? Who are these juveniles who commit such heinous crimes? What kind of educational, social, family backgrounds do they come from? What is it that happened to them at such a young age that made them do the terrible things they’ve done? What have their families, schools and society done to help them cope with their problems and the challenges of growing up so that they don’t end up committing these heinous crimes or any crime for that matter? Has the Juvenile Justice Act in its current form been implemented properly or effectively to ensure reform in juveniles? Have models of ‘what works’ around the world been incorporated into our juvenile justice system so that there is healing and justice for both offender and victim? How can young juveniles be taught and enabled to take accountability for their actions and make some amends for their actions to their victims and society?
As I hear the various debates raging for and against whether juveniles should be tried and punished as adults, many of the juveniles who were charged with heinous crimes or actually committed heinous crimes that I had the opportunity of working with over the last few years come to my mind.
Mohan*, a 17 year old charged with rape told me about his recurring nightmares of a gang rape that he had witnessed. He was the ‘lookout’ outside the door while a group of 4 local rowdies raped a middle-aged woman whose husband owed them money. The local rowdies had challenged him saying he was not ‘man enough’ for this and so he desperately wanted to prove them wrong. After they finished raping the woman, he was asked to clean up and he offered the lady a glass of water. She identified him in the line-up.Was Mohan guilty? Yes, he was. Should he be punished? Yes, he should. What should the form of that punishment be – should it be imprisonment that will inevitably expose him to brutal violence and sexual abuse and trigger further anger, or developmentally appropriate correctional methods that actually lead to change in his behavior while also enabling healing, solace and a sense of justice to the victim?
Will Mohan reform if he is sent to jail where adult convicts and offenders are most likely to groom him for further crime? Is there a possibility of Mohan taking responsibility for the damage and anguish caused to the victim and her family through a process or a correctional program that he is put through that teaches him to make amends for his behavior to the victim and society, behave responsibly in the future and actually understand his responsibilities? Mohan repeatedly told me and demonstrated through his behavior that he was remorseful and willing to do whatever it took to do this. But do we have such programs for juveniles in India? No.
Then there was Joseph*, a 17 year old with floppy hair and sad eyes. He would sit quietly in a corner and burst quickly into tears when I first met him at an Observation Home where he was kept. He was charged with the rape of Leena*, a 16 year old Hindu girl. It has hard for me to believe this of the gentle boy sitting in front of me. But how could I not believe the medical reports that showed that the girl was a few weeks pregnant. Joseph had been apprehended while trying to board an inter-state bus along with Leena two days after she had been missing from her home. As I worked with Joseph and learnt his story, a different truth emerged.
Joseph had known Leena for the last 2 years and both were in love with each other. A year before the incident, Leena’s father had caught Joseph taking Leena on his bike and warned him to stay away from his daughter. A few months later, Leena told Joseph she was seeing another boy and they broke up. Joseph had not met her since then. Three days before his apprehension, Leena had turned up at Joseph’s house and told him that she had decided to commit suicide as she was being harassed by her parents. She also admitted to him that she had got pregnant by her boyfriend (who was related to her father’s family) and her parents would kill her if they came to know of it. She asked for his help in aborting the child. Joseph stole money from his elder sister and decided to take her to a nearby city, where he was apprehended by the police. Leena’s parents filed a case of rape and kidnapping against Joseph.
Many of the cases of ‘rape’ by juveniles are cases where there has either been consensual sex between the parties or false cases filed against the boy (usually by the girl’s parents), especially where the boy and the girl are from different castes, religions or strata of society.
Speaking of murder, there was 16 year old Sathish* who was charged with killing his father in a fit of rage. Sathish’s father, a chronic alcoholic used to regularly beat him, his mother and his younger sister. He was forced to drop out of school despite being academically bright and work at a local hotel washing dishes while his father’s bouts of drinking and violence continued unabated. However, one day Sathish had had enough and during one such drunken brawl when his father attacked him, he hit back and slashed his father’s throat with a razor. He was found guilty of murdering his father and his mother was also sent to jail as an accomplice, although she had no role in it.
However, unlike other juveniles who simply languish in the system without any intervention or rehabilitative services, Sathish received intensive counseling from me and psychiatric treatment from the Department of Child and Adolescent Psychiatry, NIMHANS during his time in the juvenile justice system. With help from an NGO willing to take him in and support his education, he went on to write his 10th standard exams and later on enrolled in an evening college and is slowly but surely trying to reclaim his life. His mother and sister are also receiving counselling and support in piecing their lives together.
These are examples of just some of the juveniles charged with having committed heinous offences and subsequently found guilty by the JJB, but not every juvenile charged with a heinous offence is actually found guilty. However, the JJ Bill 2014, proposes a very arbitrary assessment of the child’s ‘mental and ‘physical capacity to commit the crime’ based on which he/she could be transferred to the adult criminal justice system for a trial, and potentially a jail sentence. As to the Juvenile Justice Board assessing the maturity of juveniles charged with heinous crime to decide whether they should be tried under the juvenile justice system or the adult criminal justice system, at the present in time, there is simply no way psychologists or psychiatrists or other experts can make a scientifically sound determination of whether the crime was committed in an ‘adult frame of mind’ or a ‘childish frame of mind.’
This is not to say that juveniles do not or are incapable of committing heinous crimes like rape or murder. They can and they do. However, what they are incapable of many a time is the ability to resist peer pressure to indulge in risky behaviors that often create or lead to such situations. Research by neuroscientists and psychologists show that adolescents – especially in the 16 to 18 year age group, are highly susceptible to peer influences, have poor impulse control and often their decision making abilities in high pressure situations may often fail them in a critical situation. This is because that part of the brain called the pre-frontal cortex which is responsible for controlling these aspects – namely impulse control, behavior regulation and future orientation – is still in the process of developing.
Also, in my experience, very often juveniles who do commit heinous crimes are very often themselves victims of violence, neglect, emotional deprivation, sexual abuse, broken families, poverty, substance abuse and so on. All of these factors are known to also influence and impede healthy brain development. No, this does not make their actions right or take away the pain and damage to the victims and their families. But it does give us a certain perspective in which to understand why and how adolescents who should be in school or college, exploring and enjoying the wonders and beauty of youth – end up committing rape or murder.
Almost every juvenile that I have worked with has expressed remorse and sadness for their actions when they feel safe to do so in a therapeutic environment. Many of them have often spoken of a deep desire to make amends to their victims and their families. I even had a young 17 year old charged with murder, who wanted to give his monthly earnings to the family of his victim as he felt he had deprived the family of an earning member.
For all those believe that juveniles committing heinous crimes get off lightly or easily, my experience has been that they don’t. They are traumatized by their experiences, haunted by their actions and the pain of their victims. Depression, post-traumatic stress, nightmares, psycho-somatic disorders and a host of other mental health problems continue to dog them for years. They are cut off from their families, have to give up their schooling and are removed from all that they hold dear. To a young person, that is often the harshest punishment one can give. Besides, the conditions at the reformatory institutions – whether Observation Homes, Special Homes or Places of Safety – are not exactly idyllic. There is nothing ‘special’ about Special Homes and all these are just euphemisms for prison or prison-like conditions. Physical violence, neglect, sexual abuse, drug /substance abuse, etc., is usually rampant coupled with over-worked, ill-trained, poorly rewarded staff who are not oriented to care giving or working professionally in a correctional setting for children/adolescents.
I believe that transferring adolescents in the 16 to 18 years age group to the adult criminal justice system and incarcerating them in adult prisons will only lead to a situation where these youngsters will come out of jail a few years later – thoroughly groomed and trained as career criminals. Instead, investing in strengthening the existing juvenile justice system – where they still have a chance to reform themselves and helping them take responsibility for their actions, teaching them to make amends to their victims and to society in appropriate ways – is the way to help prevent further crime and actually bring about some measure of healing and justice for all concerned. Restorative justice is an approach that is a possibility, it has the potential to bring together the juvenile, the victim and society in a meaningful way and some countries are already trying it, with varying and encouraging degrees of success.
Juvenile justice is a complex issue and there are no easy answers that will satisfy all. There is a need to balance the rights and interests of the juvenile, the victim and the society. Debate, discussion and engagement with young adolescents at risk and understanding and addressing their concerns before they commit a crime would be a positive step forward. Shutting them away in prisons after would help no one.
*Names and some case details have been changed to protect identity.
