More punishment is not less crime

Delhi Chief Minister Arvind Kejriwal’s efforts to ensure a safer city ignore issues of teenage sexuality and are mired in the rhetoric of extreme punishment.

Updated - April 02, 2016 03:18 pm IST

Published - October 21, 2015 12:08 am IST

Two weeks before Delhi’s Chief Minister Arvind Kejriwal’s press conference on Monday, outlining his proposals to counter sexual crime against minors, a young man was released from jail after four years as an undertrial in Delhi. The charge he had faced was grave: of kidnapping a 16-year-old girl to force her to have sex with him. In court, the judge finally accepted what the girl had said since his arrest in 2011: that she was an adult, that she was in love with him and had run away with him to escape the marriage her father was forcing her into and that her husband be released immediately.

In the last two weeks, Delhi’s district courts have also acquitted four men who were (separately) charged with rape for going back on a promise of marriage and 19 men in cases in which the complainant — some of them minors — denied having charged the accused with rape. The Aam Aadmi Party’s sincerity in wanting a safer city would appear to be beyond question, but the party and its leader are relying on a set of beliefs not grounded in fact, and seem destined to deliver outcomes that are not just sub-optimal, but harmful. Mr. Kejriwal backed jail terms of life imprisonment and death sentences for the rape of minors, as well as a move to try children aged 15 and above as adults if accused of rape. Both propositions are dangerous and misguided.

In 2014, the number of reported rapes in Delhi grew to 2,096, but the rate of increase declined sharply, after the spike between 2012 — the year of the December 16 gang rape — and 2013. Of the 2,102 reported victims, 1,008 (or less than half) were under the age of 18. Among these child victims, over 80 per cent were teenagers. These numbers become important given the way family honour and teenage sexuality play out in India.

Last year, The Hindu > investigated all 600 cases of sexual assault decided by Delhi’s district courts in 2013. The largest proportion — a full third of all completed cases — involved the > parental criminalisation of consenting young couples , many of whom had eloped and were often inter-religious or inter-caste relationships. In the majority of these cases, the FIR mentioned the girl’s age as between 13 and 16, even as the courts invariably found her to be an adult. This is because a girl's consent to sex becomes legally immaterial if she is a minor; to charge and incarcerate her partner with abduction and rape, terming her a minor was essential. A study by the leading feminist lawyer Flavia Agnes in Mumbai found similarly.

The outrage over the December 16, 2012 gang-rape in Delhi led to the passage of a criminal law amendment which, among other things, raised the minimum sentence in the case of sexual assault to ten years. This took discretion away from judges; discretion which though problematic, was also used in cases of statutory rape involving a consenting underage girl, to reduce the sentence of her partner with whom she confessed to being in love, or had often even married and had a child with. By proposing to further extend the sentence to life or even death following the current outrage over the gang-rape of children, Mr. Kejriwal could turn consensual underage sex from a technical crime in the eyes of the law to a crime worthy of hanging.

Missing childcare centres

To ensure that laws to protect children from sexual abuse do not become tools to criminalise teen sexual activity, some countries have age proximity clauses; the difference between the age of the girl and the boy becomes a factor in the case of consensual underage sex or statutory rape. Mr. Kejriwal and his party do not talk about this nor does his party ever acknowledge the reality of young love and sexuality.

Not all sexual assault of minors is statutory rape. In the sub-set of cases that involved sexual assault as it is more commonly understood, I found that men preying upon their neighbours’ children in slums was the most common category. Mr. Kejriwal is right in picking the two recent gang-rapes of extremely young girls as cases deserving of special attention. However, having analysed the circumstances of dozens of these cases and having spoken to the mothers of victims, I believe that what is most needed is childcare support for working parents, better street-lighting, more supervised neighbourhood play areas and community centres, and not more policing.

To be sure, the police and judiciary are not blameless. While registration of sexual assault cases has improved in Delhi, the city’s poorest residents continue to have a hard time negotiating the police machinery without having to pay bribes. Judges are not yet sensitive enough to the trauma faced by a child during a trial. By all accounts, however, both institutions have improved in Delhi, and Mr. Kejriwal is being unfair by placing the entire onus of reform at their door. Some of this criticism is harmful as repeatedly castigating the police for rising reported crime creates an incentive to artificially suppress registration.

Age factor

Mr. Kejriwal’s second proposal, to reduce the age of juvenility from the proposed 16 to 15 is similarly distanced from facts. In 2013, the proportion of reported IPC crimes in which the accused was a juvenile was under two per cent, and fell further in 2014. The fact that one of the accused in the December 16 gang-rape was a juvenile sent some of Delhi’s media and politicians into a tizzy over juveniles in conflict with the law, and the age of juvenility was reduced from 18 to 16 by the Lok Sabha, despite a standing committee’s recommendations to the contrary. Now Mr. Kejriwal is once again reacting to the suspicion that the alleged rapists of the toddler are 16 and 17 by proposing to further reduce the age of juvenility. In combination with his push for tougher sentencing this could, hypothetically, leave a 15-year-old boy who has a consensual sexual relationship with a 17-year-old girl (since the age of consent was raised by the UPA government to 18) eligible for the death penalty. In addition, by ignoring the socio-economic profile of juvenile offenders — the majority come from extremely poor families — Mr. Kejriwal is pushing one of the country’s most marginalised groups further away from the mainstream.

Finally there is the matter of the casualness with which life terms and death sentences are proposed as solutions. In a bid for competitive toughness on crime, Mr. Kejriwal has dismissed 10 and 14 year sentences, jail terms which in India’s sordid prisons, can break a man sooner than reform him, as trifling and raised the stakes for what is to be considered proportionate. In its report on the death penalty, the Law Commission noted that we as a society must help the families of victims of crime not to see the death penalty as the only or the only fair punishment.

Appealing to the latent violence in Indian parents who are truly worried for their daughters’ safety will not be much of a hard sell, but Mr. Kejriwal would do well to take a hard look at his own beliefs on the safety of women and girls and decide whether raising the rhetoric is the best solution, facts and real life consequences be damned.

(The article has been corrected for a factual error. Under 'Age factor' it should have been "from the proposed" 16 to 15 rather than "current". In the following line, it should have been "Lok Sabha passed", not the "Modi government passed".)

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