This article has been written by Khushi Ahuja, from Vivekananda Institute of Professional Studies on rape charges and procedure of the court when the act is committed by a juvenile, relevant laws and provisions and prevalent cases.

Introduction 

Rape is one of the most terrible and heinous crimes on earth and it happens every few minutes. It is the crossing of boundaries by a person against the will of the victim. A rape is reported every 15 minutes in India. The severity of the problem keeps on growing but the progress of justice is delayed, denied or always in process. The act of rape is not the only problem that suffocates the fresh breath of acceptance and justice, The problem with groups who deal with rape is that they try to educate women on how to defend and protect themselves. What needs to be done is teaching the accused not to rape, stricter punishments, and timely justice.

Rape is when an act of sexual offence involves the element of lack of consent or consent is obtained through fraud or force. Statutory Rape is where the consent is considered to be invalid. This offence defines the heinous exploitation of the minor by adults. It talks about a punishment being served to an adult if he/she had any kind of physical interaction with a girl who is of 18 years or below the age of 18 even if he/she has voluntarily participated in the act. But what happens when the gruesome act is being committed by a minor, on a minor? In this era of growing cases of the child on child abuse, what are the measures being taken? How can we as a society stop this?

Who is a Juvenile?

A juvenile is a person who is not old enough to be regarded as an adult or held responsible for criminal acts done by them. The word juvenile has originated from the Latin word ‘JUVENIS’ which takes account of any person who is under the age of 18.    

“For kids are innocent and love justice while most of us are evil and naturally prefer mercy” – G. K. Chesterton

Every child is an innocent small creature and a gift of God, that is brought into the world. Due to multiple factors and easily accessible variety of age-inappropriate information, these children have started to indulge in wrong adopted behaviour, reflecting wrong ‘adult’ behaviour and anger eventually getting caught up in acts of conflict with the law.

According to the child rights activist, Yamini Abde “the urge to do something different, daring, extraordinary filled with thrill is one of the driving forces behind the minors getting involved in heinous crimes like rape and murder. Peer pressure, desire for easy money, access to internet videos on crimes, and pornographic material. Increase in aggression and sexual activity in youngsters and the knowledge of the fact that they will not be punished under the criminal system for them being juveniles. This absence of fear with regards to punishment has led to an increase in the crime rate among juveniles.”

Her statement indicates the leverage these minors have over the law and how it is being misused with no appropriate action governing their curious ways of committing offences.

The difference between juvenile and minor is that juvenile is used in reference to a young criminal who commits an offence and minor is related to the legal capacity of a person.

Juvenile and sexual crimes  

Offences against minors are taken as grave and serious and the predators also known as paedophiles are thought of as adult perpetrators of child molestation and violent rape crimes. Society automatically perceives sexual offences as crimes being committed by adult men against women, and especially against children. This is not always the case. In recent years, the committing of these offences have been growing amongst the minors who do not fit the image of the predator.    

Since the late 1980s, there has been growing concern about crimes being committed by young people. News and cases of serious crimes committed by children and adolescents have perpetrated a deep study by criminologists’ who warn of a coming tide of vicious juveniles in conflict with the law.

India has shown high rates of incidence of rape believing that patriarchy and a skewed sex ratio are making the matters worse. The Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child in conflict with the law as a person who is under the age of 18 and is found to have committed an offence.

Sex crimes consist of the crucial element of lack of consent. A sexual act becomes an offence when it is not consented to due to coercion or the person is incapable in the eyes of law to consent due to age of maturity or insanity or diminished mental capacity to give permission.

The age of reaching a stage of full consent is 18 years old in India. At this age, an individual is considered legally old enough to consent and participate in sexual activity.

According to 2017 reports, in India by the National Crime Records Bureau (NCRB)., 1,614 rapes, 1,456 other sexual assault offenders were juveniles in the country, and 1,614 cases of rape were against juveniles.

Need for stringent provisions  

There is a repeated string of sexual abuse and rape of children being reported, people are taking to streets, there is an outcry for justice, candles are lit, help is demanded from the legal system, and the skies come to a stall as a child goes through the heinousness of the abuse suffered. The child suffers in silence because he/she cannot recount the experiences, the feeling and the betrayal of the presumption of innocence. The trauma traps the mind as they find themselves helpless and voiceless. They did not ask for it, neither they expected it. They were forced to understand the issue, something that made them feel dirty and inhuman as if they had no choice or opinion of their own, clueless of what was happening. All they knew is, it was not right. The family stays shocked, dejected and horrified for they could not protect their child from the unfortunate incident and blame themselves for being irresponsible and careless.

There is no way to escape or cope with the crime. The society plays the blame game and asks for answers while the justice system pulls its strings and applies its rationality. In some cases, it’s a family member that committed the crime and oversteps the boundaries of a relationship that was supposed to be sacred to a child. Not just that, with the growing issue of rape and sexual abuse, children are learning and adapting behaviour that they might have seen somewhere as a tool of power and superiority. They think it is ok to humiliate someone in such a way because someone they know got away with it. We need to prove that these children can be punished for the wrong behaviour and they should be taught to follow the right path. With the age of information and technology taking its roots in our everyday lives, sensitive and age-inappropriate information is just a button away, easily accessible by any child, teen or an adult. Wrong information in the wrong hands can cause major destruction not only in the life of the person responsible but also the victim and the society at large.

The impact of the crime leaves the victim stranded and hopeless, with no support from society or friends or at times, family. The victim needs justice but along with that care, acceptance and rehabilitation and counselling are as much required. We need to come together as a society to bring unity to fight this act of exploitation and prevent it from further spreading on amongst the juveniles.

Cases

Minor Rapist in Bihar 

Juvenile justice board (JJB) in Bihar gave a remarkable decision in a case of raping and impregnating a minor under IPC Section 376 and Protection of Children from Sexual Offences (POCSO) Act. The accused who was 13 years old raped a 12 year old girl while she was carrying food for her father who used to work in an agricultural field. Due to fear, the girl did not inform anybody about the incident. The case came into light when the girl was found to be pregnant with severe pain in her lower abdomen. A case was registered by the girl’s aunt and the accused was arrested. Later, he was taken into custody and sent to a Patna based remand home. The impact on the girl was severe as the family refused to accept her and drove her away. She was shifted to a shelter home where she delivered the baby.

Bharatpur Rape Case 

In 2018, a 14 year old boy was detained under CrPC and Protection of Children from Sexual Offences (POCSO) Act for allegedly raping his 5-year old girl cousin in Bharatpur by luring her to a secluded place by promising to give her 10 rupees for toffees. The little girl’s mother realized the abuse after she found her daughter bleeding.

Juvenile Justice Court in Kairana 

A 15 year old boy on 12 February, 2018 raped a 6 year old girl who was his neighbour in Shamli district by luring her. Juvenile Court at Kairana held the accused to be guilty and sent him to a correction home for 3 years with no imposition of fine as he was below 16 years old, under Section 376 of the Indian Penal Code along with Section 7 of the Protection of Children from Sexual Offences Act.

The Nirbhaya Gang Rape Case, 2012 

The landmark judgement of the NIRBHAYA GANG RAPE CASE, 2012 which shook and left the entire nation speechless was a nail in the coffin of the needed changes in the system of law and delivery of justice related to the crimes committed by minors.

The victim Jyoti, 23 years old and her friend were returning after watching a film in a movie theatre in South Delhi. They were waiting for the bus and when the bus arrived they hopped on realizing that there were 5 adults and 1 minor already present on the bus. The six people ruthlessly and repeatedly gang-raped her and tortured her after beating up her friend. The manner in which she was tortured and raped was heinous and against the concept of humanity.

The Supreme Court upheld the capital punishment for the four convicts – Akshay Thakur, Vinay Sharma, Pawan Gupta, and Mukesh labelling the act as barbaric and devilish. The fifth accused member of the gangrape accused, Ram Singh was found hanging in his cell in Tihar jail in 2013 while the sixth minor member was just sent to the reformation facility for 3 years. The question that arose was whether a juvenile was also liable for Capital Punishment or not especially in such cases of grave nature like rape. Mohammad Afroz, the juvenile convict, left home at the age of 11 years and started working with Ram Singh as a cleaner of his bus. He was sent to a correction home for three years in North Delhi’s Majnu Ka Tila instead of punishment with the others due to his minor age after he was found guilty in the infamous Delhi Gangrape Case. Despite, accusations of being the most brutal out of the six and attacking the victim severely with an iron rod, he was relieved of capital punishment and the allegations were brushed away by the Juvenile Justice board.

There had been many questions pointing to the excessive blanket of protection provided to a child who committed a heinous crime like rape and murder. The juvenile’s punishment was the most debated topic with outrageous protests to conduct the trial of the juvenile as that of an adult due to the seriousness of the nature of the crime. Even a massive public outcry could not prevent the release of the juvenile who according to reports did not improve, from the correction home after he completed three years.

                 

Relevant provisions and laws 

Indian Penal Code, 1860

The offence of rape has long been considered a crime under the Indian Penal Code, 1860. 

• Section 375 defines Rape as an act by a man who has sexual intercourse with a woman under circumstances falling under the description provided by the law i.e.-

1. 1. Against the will of the woman 
   2. Without her permission/consent 
   3. With her consent by instilling a fear of death or hurt by putting her or any person in whom she is interested in danger
   4. With consent on a presumption that the accused is her husband while the accused knows that he is not her husband and that her consent is given on a false presumption
   5. Consent that has been given despite unsoundness of mind or intoxication or the administration by him personally or through another of any substance making her unable to understand the nature and consequences of the act.
   6. Irrespective of consent when the girl is under 16 years of age.

• Explanation to the law says that penetration would be sufficient to constitute the sexual intercourse necessary to the offence of rape
• In The Indian Penal Code (1960), children under the age of 7 years were exempted from criminal responsibility. It also exempted children between the ages of seven to 12 years as they had not attained sufficient maturity
• Up till 2012, Statutory Rape was the only law that protected minor victims against rape and sexual exploitation. Due to the rise of crimes of sexual nature against minors, the shortcomings of IPC were realized. Children were often sexually assaulted by their family or people they knew and were left traumatized. To overcome, the Protection of Children from Sexual Offences Act (POCSO Act), 2012 was created to protect minors from sexual exploitation which led to the creation of special courts, the involvement of trained personnel to take care of the minors in relation to their mental and emotional state during the trial.

Protection of Children from Sexual Offences Act, 2012   

• The Parliament passed the Protection of Children against Sexual Offences Act, 2012 (POCSO) on 22 May 2012. It came into force on 14 November 2012.
• This law was implemented to protect children from offences of sexual assault, sexual harassment and pornography against persons below the age of 18 years. Even after the excessive need for its provisions and regulation, this law remains largely unimplemented and unknown.
• It aims to provide relief and rehabilitation as soon as the complaint is made.
• Committing an offence, abetting or aiding the sexual abuse of a child is also punishable under POCSO. The trial has to be conducted in special children’s courts to aid speedy disposal with the establishment of special procedures to avoid children not seeing the accused at the time of testifying. 

Criminal law (Amendment Act), 2013 

• The juvenile convict in the 2012 Delhi Gang Rape was tried as a minor and escaped the full burden of the law despite being 17 years old. An uproar to change the law gathered momentum after the youngest convict of the 2012 Delhi gang rape was released from detention. The parents of the victim campaigned to fight for justice for their daughter.
• To avoid such cases in future the Indian parliament in 2015 had passed a bill which allowed the trial of juveniles between 16 and 18 years of age as adults for serious crimes like rape or murder. Before the bill, those under 18 could only be sentenced to a maximum of three years in a reform facility. The Legislation confirmed that if children within the age of 16 to 18 undertake gruesome and violent murders and rapes, they would be tried and punished as adults. Thus, Criminal law (Amendment Act) 2013 commonly known as “Anti Rape Bill” was passed on 19 March 2013. 

Juvenile Justice (Care and Protection of Child) Act, 2015

• The Juvenile Justice Act, 2000 handling the issue of children in conflict with law besides talking about children in need of care and protection, was amended twice in 2006 and 2011,  replacing the Indian juvenile justice delinquency law, Juvenile Justice (Care and Protection of Child) Act 2015 was made. On closer inspection with its provisions has created a group of juvenile offenders between 16-18 years of age who may be tried as an adult for offences which are considered to be grave and heinous. Psychologists and Sociologists should decide on the matter  
• The Act aims to cater to the developmental needs of the child through proper care, protection and treatment.
• It establishes a child-friendly approach for adjudication and disposal to prioritize the best interests of a child with rehabilitation and other benefits.  
• The Act also prohibits the media from disclosing the identity of children in conflict with the law which are to be treated as confidential.     
• Section 18(3) says that if after a preliminary assessment of the accused minor’s mental and physical capacity to commit such offence along with the ability to understand the consequences and the circumstances of committing a heinous crime, who above the age of 16 years then the Juvenile Board can transfer the case to a Children’s Court. The child may be sent to a place of safety and after the attainment of 21 years, he shall be transferred to the jail.
• According to Section 47(4) “Every child alleged to be in conflict with the law who is not placed under the charge of parent or guardian and is sent to an observation home shall be segregated according to the child’s age and gender, after giving due consideration to physical and mental status of the child and degree of the offence committed.’’ 
• Section 2 clause (21) says that child under 18 years cannot be awarded death penalty or life imprisonment.

Criminal Law (Amendment) Ordinance, 2018 

In 2018, the Criminal Law (Amendment) Ordinance, 2018 was introduced. It increasing the maximum punishment to the death penalty. It was considered unwelcome at large due to discrimination between male and female minor victims as it was rushed without proper application of mind and was challenged.

International Law

• Beijing Rule 17.2 and Article 37(3) of Convention on the Rights of the Child say that any child under 18 years cannot be awarded death penalty or life imprisonment
• The General Comment No. 10 under Point 71 of Convention on the Rights of the Child says that the punishment for an offence should be in proportion not only to the circumstances and the gravity of the offence along with the age, circumstances and needs of the child along with society.

Who is to be blamed?

Today, children recognise their sexuality way earlier than an appropriate age because of the unlimited access to information, getting phones at a young age and exposure to the internet. The society as a whole fears this conversation and shies away from it due to the stigmas revolving around the concept. There is a need to talk to children and make them understand the use of these tools and the information they receive. There is little conversation about sexuality within homes and schools. Nobody is ready to own up and talk about the issues and problems being faced by the child, while a lot of information is accessible through television, media, websites and articles. This pushes the child through misappropriation of the information, as they cannot talk about it to anyone and end up exploiting the data.

When we as a society are not yet ready to talk about it, inculcate the right views or talk about the concept of sex and sexuality to the children, then how can we blame them totally when they behave inappropriately? They do not carry the full burden on their shoulders, but we all are in it together.

Other common causes of crimes like rape being committed by juveniles are: 

• Poverty 
• Drug Abuse 
• Child sexual abuse
• Illiteracy 
• Anti-social Peer Group
• Abusive parents 
• Family Violence

Suggestions 

The Acts and laws provide for the concept of intelligible differentia which provides a  different treatment to children who have committed petty offences against those children who have committed heinous offences.

Children under the age of 18 years have different mental capabilities due to the development of the brain in different stages. The severity of the crime committed by a child may differ indicating different levels of maturity. In the case of Roper v. Simmons, the Supreme Court said that all juveniles should be given individual consideration varying from case to case while being evaluated based on their maturity level, education, life experiences, background history, and feelings of moral responsibility.

As per the Hindustan Times, “a preventive strategy to control crimes by juveniles, Delhi Police has started the scheme ‘Yuva’ for young adults and street children of the society. Under this scheme, workshops, sports activities, and vocational training etc, are being organized to channelise the energy of young adults and children to make them productive members of the society and prevent them from moving towards crime and drugs at an early age.”

• POCSO should be given publicity so that people can know about the provisions and laws relating to children.
• A strict application of laws should be seriously considered to hinder the progress of juvenile rape and criminal cases.
• Any delay or insensitive handling of the rights of children must be paid attention too and handled. 
• The punishment should focus on the rehabilitation of the juvenile into society and should reflect what is best for both the society as well as the juvenile.
• Though mens rea is still difficult to be proved in such cases as the human brain keeps developing until the age of 18 years. But by the age of 5 years, the human brain cultivates 85% of their personality, skill and intellectual capability. Thus the brain easily recognises anti-social behaviour and develops cognitive faculty.
• Thus the law cannot be stopped from treating minors as adults in severe cases and punishing them to set an example for forbidding any future crimes and offences. 
• It is important to understand the reasons behind the commitment of offences by a juvenile. Many reasons might compel a child to fall prey to such behaviour like they might have been a victim to sexual abuse or might have got their hands on inappropriate information that confuses them and they apply it out of curiosity. It is important to consider all factors to recognize the needs of the child and keep in mind the best interests of the juvenile.
• It is also important to analyze the situation and look out for any false accusations. 
• Parents should teach their child about gender equality and how to respect women. They should not support male children over the female child.

                 

Conclusion

As Kiran Bedi said – “This means we need to pass on this awareness to families and explain to them that they cannot just keep their sons loose…meaning thereby boys without rules of discipline, acquiring bad habits, missing from homes without parents knowing their whereabouts, drinking away, dropping out of school, abusing drugs, and being vagabonds.” There is an emphasis on the importance and role of family support. The family is responsible for crimes done by children as they must care, protect and teach the children the right values and punish for wrongdoings. Kids these days see and hear about sex everywhere being exposed to sexual images not only through television but popular songs, movies and through video games. The age of inappropriate information makes them confused and unknown to the use of such information.

They have not yet attained the maturity to understand the content or apply its processes thus leading to confusion and inappropriate behaviour. They begin with acts done out of curiosity and experimentation which lead to bad decisions and inappropriate behaviour making them stand against the law in charge of sexual offences. A law needs to depict the desires and aspirations of a society. Although, this is a very sad yet disturbing discussion about minors affiliated to crimes like rape, it is the need of the hour to talk about the issue before it is too late to make amends. The family, society and State have equal responsibility towards the care of children so that they do not lose the right path. They should be provided with opportunities to grow up in a healthy socio-cultural environment. They need to be raised right and properly in order to make them the future and responsible citizens of the nation.

References

1. https://www.wksexcrimes.com/practice-areas/child-on-child-sexual-abuse/
2. https://www.bbc.com/news/world-asia-india-35161193
3. http://www.legalserviceindia.com/legal/article-240-the-juvenile-rape-case.html
4. https://thelogicalindian.com/story-feed/awareness/sexualt-assault-laws/?infinitescroll=1
5. https://www.theweek.in/news/india/2020/01/17/Minor-boy-sent-to-correction-home-for-3-yrs-for-raping-6-yr-old.html
6. https://www.bbc.com/news/world-asia-india-43782471
7. http://www.legalserviceindia.com/legal/article-240-the-juvenile-rape-case.html
8. http://www.aimjf.org/download/Documentation_EN/JUVENILE_JUSTICE_LAW_AND_POCSO__A_CHILD_LAW_IN_THE_MAKI_NG-13.01.2016.pdf
9. https://www.scconline.com/blog/post/2018/01/31/adult-time-adult-crime-road-juvenile-justice/#_ftn15
10. http://www.micheleshawlaw.com/juvenile-sex-offenses.php
11. https://www.hindustantimes.com/jaipur/14-year-old-boy-detained-for-raping-5-year-old-cousin/story-1laMAtvO6kkrjaF5oaX5gM.html
12. https://youthaction.in/2016/09/juvenile-crimes-in-india/
13. https://www.business-standard.com/article/pti-stories/over-40k-juveniles-caught-in-2017-72-pc-in-16-18-age-group-ncrb-119102201492_1.html
14. https://www.hindustantimes.com/delhi-news/155-rapes-in-delhi-committed-by-minors-govt-says-juvenile-crime-up-by-5-in-2016/story-DYGQkUFz2CyhZ7YKWIIEjI.html

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