Opinion: Do not attribute sexual acts among vulnerable juveniles to crime

Children and the youth are exposed-with no caveats-to scandalous material before they are provided sex education. Thanks to highly nutritive food and growth, children attain puberty much early. In their curiosity or due to their exposure and biological needs / compulsions, children under the age of 18 do indulge in sex. This is reality.

Most cases of kidnapping and sexual assault are elopement and voluntary consensual relationship between adolescents. The Protection of Children from Sexual Offences (POCSO) Act, 2012, prescribes a minimum of punishment of seven or ten years’ rigorous imprisonment for some offences under this Act. Now children between the age of 16 and 18 years who commit heinous crimes are tried as adults. We as a society subscribe to criminalising acts that are of deviant nature and insist on stringent punishment. The repercussions of such blame game and criminalisation of what are natural acts of growing in an atmosphere of exposure is creating criminals. Girl victims refuse to go back to their parental home and are sent to institutionalised juvenile homes. The boys are accused, convicted and sent to prison. The system creates hardened criminals, deprives further education and moulding of these youth. In fact, Justice Satyanarayana, sitting in the HCP bench said that most cases of habeas corpus these days are only of voluntary elopement of girls who are either minors or very young. His lordship was pained and expressed his helplessness in these cases where the court had to send the female victims to some institution and the male counterparts remanded to judicial custody. Youth at their prime impressionable age are unnecessarily criminalised and victimised for acts that are biological in nature. Criminal intent ought not to be attributed to these acts. They should be seen with empathy and help be provided for reform and rehabilitation within their families/educational institutions. Prisons and juvenile homes cannot reform.

It is in this context that the landmark judgment passed in the case of Sabari @ Sabarinathan @ Sabarivasan by Justice V. Parthiban of the Madras High Court on 26.04.2019 becomes very important. The Hon’ble Judge has suo moto impleaded The Director General of Police, The State Commission for Protection of Child Rights, The Commissioner of Social Defence and The Secretary, Department of Social Welfare and Noon Meal Programme, and heard their views at length.

Rightly in the said judgment, the judge says that a relationship between a teenage boy or little over the teen-age is the result of “mutual innocence and biological attraction”. It “cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.”

The Hon’ble Judge rightly recommends thus: “On a profound consideration of the ground realities, the definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined, can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teenage relationship after 16 years from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.”

The court has further recommended appointment of a high level committee “comprising persons of eminence from various walks of life, like social auditor, psychologists, social scientist, etc., to investigate and study the malady afflicting the society”. The committee is advised “to study such crimes from various dimensions, including the cultural psyche of the offenders and may come up with suggestions periodically to arrest at least further growth of such crimes in future”.

The landmark judgment also speaks of giving better publicity to the provisions of POCSO as contemplated by the Act, to provide budgetary support to the Commission of Protection of Child Rights, etc. The judgement says that society must collectively introspect “what is it that drives some men to unleash their libidinous rage on hapless children and women of all age.” Lamenting on ‘the society which dominantly comes under the influence of mainstream cinema”, the judge calls for collective expression of concern.

Thus instead of just acquitting the appellant in this case, the court dwelled into the psycho-socio-legal aspects. It impleaded different wings of the State, heard them at length and made suggestions for amendment to the POCSO Act, etc. Not viewing the acts of vulnerable youth as crime, taking necessary steps to counsel, reform and not punish would lead to a less acrimonious society not retributive in nature, but only spreading the wings of love in its natural manner. Hope and wish this compassion permeates into us, works towards a society that forgets, forgives and lends its helping hands to each other without pointing its fingers at one another.