Bring rape of mentally challenged under POCSO

The issue is back in focus after the plight of 23-year-old Priya Devi (name changed), a rape victim, who is mentally challenged. Clinical psychologists have declared her mental age to be that of a four-year-old. While activists have been fighting to include her and others like her under the Prevention of Children from Sexual Offences (POCSO) Act, advocates continue to refrain from doing so.

Stating that disability groups and activists had contested this in the court earlier this year, Andrew Sesuraj, a renowned Child’s Rights’ Activist said, “They said that you cannot look at a person based on their mental age and want to go with the real age itself.”

Pointing out that it is unfair to the victims, Sesurai added, “Under the regular Act, the victim, who is an adult, has the responsibility of proving that she was abused or raped. However, under the POCSO Act, the onus is on the perpetrator to prove his innocence. As the mentally unstable have the mindset of a child, they are unable to prove it. Ideally, the court should consider including them under the POCSO Act.”

When a request to consider Priya’s mental age was made, not only was it not considered, but the accused was also reportedly released on bail. “Priya’s case is a good example of the need for inclusion under the POCSO Act, but advocates state that they have to follow the law, which does not permit inclusion,” said activist Sheba Menon.

N Lalitha, an advocate in the Madras High Court is of the view that, “When it comes to issues pertaining to women, the courts are very insensitive. It is high time courts became more sensitive when they adjudicate such cases. We have a long way to go when it comes to such issues and we need to sensitise people, and the Parliamentary Standing Committee, which is responsible for making such recommendations. Also, sensitising the statutory commissions - that play a big role because they can lobby with the government for such issues – is important.”

The National Policy for Children, 2013, recognises every person below the age of 18 as a child and covers all children within the territory and jurisdiction of India

POCSO Act, seeks to penalise any person who commits offences such as sexual harassment or sexual assault on children.

The Supreme Court had, in July, refused to grant these protection to adults whose mental age might that be of child.

Lack of impetus from the government to extend protection to mentally retarded people

Mental age is seen as a criteria in Juvenile protection Act but not in POCSO Act. This goes against the premise of equality under Article 14