Does ‘age’ encompass mental age?

A recent case has exposed a lacuna in the Protection of Children from Sexual Offences (POCSO) Act of 2012, which defines a ‘child’ as a person under 18 years of age.

The case, which came up before the Supreme Court, concerns a sexual assault victim whose biological age is 40 but whose mental age is six. The court has to decide on whether such a person is a ‘child’ under the POCSO Act.

Cerebral palsy victim

The victim was a woman suffering from cerebral palsy since birth. A detailed medical report shows that her Intelligence Quotient (IQ) and mental age on eight social adaptive domains specify her overall mental age to be six years.

Her 68-year-old mother wants the criminal case to be transferred to a Special Court designated under the POCSO Act. The Supreme Court has reserved the case for judgment and is determined to interpret the 2012 Act in a verdict, despite the fact that the sole accused died in judicial custody. Section 2(d) of the Act brackets victims as those whose biological age is under 18 years. The aspect of “mental age” of victims has not been considered by Parliament.

This is despite the fact that the Preamble and the Statement of Objects and Reasons of the POSCO Act, as also United Nations Convention on the Rights of the Child, make it abundantly clear that the clear purpose of the Act is to “protect children from offences of sexual assault” and “to secure the best interests of the child”.

Advocate Aishwarya Bhati, who represents the victim in the case, argues that the failure to take into consideration the mental age of victims is an attack on the very purpose of the 2012 Act. Ms. Bhati submitted before the Supreme Court that a purposive construction to compositely include biological and mental age rather than singularly biological age alone will be a natural extension of the protective umbrella of POSCO Act.

A precedent

Among the international cases quoted in the Supreme Court, the South African case law of Daniel Johannes Stephanus Van Der Bank v The State (2008) involving the rape of 19-year-old woman who had a mental age of an 8.5 gains significance. The High Court held that the term ‘age’ also includes the mental age of the victim while granting her protection and justice. The Supreme Court of Appeal of South Africa upheld the finding as reported in 2016.