Where the question of women’s rights is concerned, ‘common sense’ often tends to be wrong. What we need to cultivate is uncommon good sense.
Nowhere is this more true than in the discussion on rape.
Take the recent move by the Modi Cabinet to amend the Juvenile Justice Act to allow young people between the ages of 16-18 to be prosecuted in adult courts and serve time in adult jails if convicted of heinous crimes. According to the Modi Government, this is a measure that will make women safer because it will deter juveniles from committing rape. The fact is that this measure will actually fuel rather than curb crimes against women.
Undoubtedly, any rape is equally heinous. A rape or murder committed by a 12 year-old or 16 year-old is no less heinous than committed by an adult. The trauma experienced by the victim is as terrible. There is no doubt whatsoever that howsoever young the perpetrator, he should be punished. But the question is: what manner of punishment can actually correct criminal behaviour in young people? And what kind of punishment might actually reinforce and promote criminal behaviour?
The existing JJ Act, in keeping with the UN Convention on Child Rights, holds those under the age of 18 to be children. It is a fallacy that the JJ Act now prevents such young people who commit crimes, from being punished. What the JJ Act ensures is that such young people who are accused of crimes, will not be tried in adult courts, or jailed in adult jails. If convicted, they will serve punishment in juvenile correctional homes. This is important – because housing young offenders with adult criminals will only further expose them to crime, rather than wean them away from crime.
The ‘common sense’ logic is: ‘rape is an adult crime’, and if anyone is mature enough to rape, he should be mature enough to be punished. This is a mistaken understanding of the concept of ‘maturity’. Sexual impulses, and the ability to commit a murder or a rape, can develop in children as young as 10 years old. But the fact is that this ability does not signify ‘maturity.’ Based on scientific studies, it is now internationally accepted that in adolescents, the frontal cortex of the brain – called the CEO of the brain – that controls the ability to plan, take decisions, correctly assess risks and set long term goals, is not fully developed. In fact this development continues till the age of 25. Any parent of a teenager will know that youngsters between 16-18 are especially vulnerable to peer pressure, and prone to risky, impulsive behaviour with little care for consequences. This being the case, ‘stern laws’ that fail to deter even adults from committing rape or murder, will certainly not deter young people in whom the ability to assess the consequences is weak.