Stigma, silence make fertile ground for sex offences

Our selective absorption with cases of brutal child rapes and juvenile sex offenders, coupled with our overwhelming reliance on punitive responses, harm, not protect the rights of the child. Horrific as such cases are, they fail to address the child’s vulnerability to routine forms of sexual abuse.

The focus on the grotesque over the everyday achieves two things. In defining child sexual abuse strictly in terms of exceptionally violent cases, the state and society normalise everyday abuse against children. Our silence around adolescent sexuality diminishes the ability of the already vulnerable child to seek help.

After the Delhi gang rape incident of 2012, the Juvenile Justice Act was amended in 2015 to allow juveniles between the ages of 16 and 18 accused of grave crimes to be subjected to criminal trial and punishment on par with adults. With adolescent consensual sex also criminalised, when apprehended, such boys also fall within the category of juvenile sex offenders.

The Protection of Children from Sexual Offences Act of 2012, (which is expected to be amended after the recent ordinance), recognises a range of sexual offences particular to minors. It increased the age of sexual consent from 16 to 18 years. This move has had farreaching consequences. It meant that those under 18 could no longer lawfully consent to sex or even to the minimal sexual expression such as kissing and embracing, as the law deemed it harmful to do so. What was earlier lawful, turned into an offence overnight.

At Partners for Law in Development, we undertook a study between 2015 and 2016, documenting stories of girls between the ages of 15 and 20, who had approached crisis intervention centres in Jaipur, Delhi, and Mumbai as adolescents in consenting relationships (the report will be published later this year). In all cases, the healthcare providers, counsellors and social workers were, against their better judgement, compelled by the law to report these cases to the police. Underage couples who have eloped or got married are often at risk of retribution by their families. This is particularly so in cases of inter-caste and inter-community marriages.

Instead of supporting them, the law can and is often used by parents as a punitive tool. Another study undertaken by us, this one of judgments from 2008 to 2015 involving the Prohibition of Child Marriage Act, 2006, shows that the vast majority of cases are filed by parents against self-arranged marriages of underage girls.

The result of not distinguishing sexual abuse from positive expressions of sexuality has devastating consequences for the young.

It sends out the message that all sexuality is wrong, leaving them not only guilty about their own desires, but also without adequate vocabulary to identify and report harm. This only makes the youth ill-equipped to make informed choices, particularly so for the less privileged who lack access to quality education and services. It’s little wonder that the boys incarcerated and girls in the shelter homes are mostly from economically weaker sections.

At puberty, when adolescents awaken to sexuality and are most likely to explore and experiment, they stand the highest risk of falling foul of the law. Even as pornography is easy to access, scientific, prejudice-free, sexuality education is not.

I am not suggesting that children of all ages have the capacity to consent to sex. I am, however, questioning the logic of treating all minors from 0 to 18 years as a homogenous group with similar capacities. Even international standards, such as The United Nations Convention on the Rights of the Child, to which India is a signatory, require a recognition of the evolving capacities of the child, including in relation to sexuality, and call for age-appropriate education and information that helps young people understand their bodies, gender and sexuality.

The stigmatisation and silence around sexuality set the conditions that eventually become fertile breeding grounds for commission of juvenile sex offences. Instead of addressing the structural societal causes, the primary response to this has been criminalising the juvenile sex offender. Unless hard questions are asked, the spiral of criminalisation will render the most vulnerable in the young population to a life of harm, abuse and punishments.