The famous quote, commonly attributed to Mark Twain, goes, “Age is an issue of mind over matter. If you don’t mind, it doesn’t matter”. According to the following statistics and perspectives of sexual violence, age is and should be kept in mind by both parties involved in the act: victim(s) and perpetrator(s) or actor(s).
Perspectives:
Legal
Sexual violence is an act of sexual overture, including the attempt or commission of sexual intercourse with a person of a different sex without consent and may include force. Thus, as per the definition, the key considerations are sex and age, which form part of the mental and physical elements of the act.
The above perspective can be analysed from the statutory definition given to sexual offences like rape (s.63(vi) & Exception 2 to s.63 of BNS, 2023), chapter II of POCSO Act, 2012
Social
For children, society is the victim-centric, whereas, for adolescent girls, it is accused-centric unless there are some aggravating factors besides age.
Statistics:
1 in 5 of the girls and women present globally have experienced some form of sexual violence, including online sexual abuse. From the perspective of South Asia, the percentage stands at 9%.
From the Indian perspective, crimes against children have increased at a rate of 16.2% since 2020, with sexual offences accounting for 38.1%, according to the NCRB’s 2022 report.
From the perspective of age, girls, especially of the age group of 16-18 years, are more vulnerable.
Thus, as per the deduction of the quote, age does matter.
So, to prevent sexual violence, the intersection between age and sex should be carefully understood not only from a theoretical perspective but also from a practical perspective (by incorporating other intersectional factors).
- In the case of Jarnail Singh v. State of Haryana, the Supreme Court upheld that the said rule can be applied in the case of victims of sexual offences under the POCSO Act, 2012.
- In the case of State v. Varun, the Delhi High Court observed that the legal stance about a case under POCSO is that the juvenility of the victim should be given preference.
Though the caste system is intrinsic to the base of Indian societies, it is more prevalent in rural areas, like the dominance of upper caste land owners to commit sexual violence against Dalit girls who work as agricultural labourers. The outcomes like dereliction of duty further aggravate the commission of the sexual act. The following two incidents highlight the breach of duty by various enforcement agencies:
Sneha:
The local police made every effort not to report the incident of gang rape against Sneha, a 15-year-old Dalit girl, committed by security personnel, including offering a bribe, mental harassment, forge for a medical examination. The police failed at last because she wrote about the incident in her suicide note.
Aanya:
The District Child Welfare Commission, after taking note of repeated rapes committed on Aanya, a 14-year-old Dalit girl, answered to it by just keeping her in an observation home. Finally, she died due to this delay in the investigation.
With the increase in the use of digital devices like smartphones and easy data accessibility, another dimension of sexual violence has opened up. This necessitates a revisit of the existing legal framework regarding the prevention of online sexual abuse.
The Ministry of Home Affairs has launched various initiatives and agencies which specifically focus on the enforcement of the legal provisions like:
Emergency response support helpline number 112
National cyber-crime reporting portal and cyber cells for reporting and investigation of cyber crimes
Indian Cybercrime Coordination Centre
National Automated Fingerprint Identification System
The analysis indicates that existing laws are effective during the remedial stage rather than the prevention stage. This issue has been emphasised through the enactment of statutes but not through the development of personnel in enforcement agencies.
According to NFHS-5, child marriage has decreased to 16.3% in 2019-21 for the age group of women 18-19 years in India (except in states like Manipur). The main causal factors for the occurrence of child marriages are low levels of education and economics. The incidence is more prevalent in communities of Scheduled Tribes.
According to the report of UNICEF in 2023, one in four children aged 18 years were married.
Legally, the concept of marriage holds no significance until a woman turns 18, as stated in Exception 2 of Section 65 of the BNS, 2023. This highlights the law's emphasis on age and maturity in personal rights and decisions.
However, the age at which a girl can marry varies widely across cultures and legal systems. While there is a minimum age for enforcing a marriage (18 years as per the Prevention of Child Marriage Act of 2006), personal laws often allow for earlier marriages, prompting essential conversations about children's rights and education.
Religion:
An 8-year-old girl child who belonged to Muslim and nomadic Bakarwal communities was gang raped and murdered by more than 5 persons who were Hindu in Kathua, Jammu & Kashmir on 16 April 2018. To highlight the importance of religion and not sexual violence, party officials and members of the Special Investigation Team tried to allegedly suppress the Muslim community, besides other forms of systemic violence.
This highlights the blatant violation and oversight of statutory provisions like section 72 BNS, 2023, and section 23 of the POCSO Act, 2012 (which obliges the media not to publicise the victim's identity).
Sex exploitation, which is one of the acts of sexual violence, is one of the factors involved in child trafficking.
The process generally involves using undue advantage of power or position or inducement against children who belong to an economically poor family background and are illiterate. The family may treat the girl children, especially those who seem disabled, as a burden. The children also include those who are victims of natural disasters: orphaned and abandoned.
- Sarita: She was raped when she went to the field to defecate due to lack of proper sanitation. In this incident, the family of the victim was threatened by the accused when he was released on bail. The police warned the accused after taking notice of it.
- Masoom: She was raped by a 27-year-old man in the broad daylight. According to her mother, the incident had caused mental distress and anxiety, due to which she fears her father.
- Specifying women's safety as one of the focal points for smart cities.
- Punishment for delinquency on the part of Child Marriage Prevention Officers, similar to that laid down in the POCSO Act, 2012
- Use of artificial technology in the enforcement of legal provisions and investigation of incidents of sexual violence
- The laws legislated should not just be a reaction to appease the public sentiment and outcry after a heinous sexual offence but rather should be more reformative and inclusive to inculcate the various dimensions that may arise in the present as well as in the future.
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