Following Protests Over Gang Rape, India Lowers Crime Trial Age to 16

Earlier this week, a man who took part in a brutal gang rape was released after just three years because he was a minor at the time of the attack. Today, the Indian government passed a new law allowing teens as young as 16 to be tried as adults if they...

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Dec 23 2015, 9:55pm

A candlelight vigil for the victim of the Delhi gang rape. Image via Flickr user Ramesh Lalwani

In 2012, six men of varying ages repeatedly raped a 23 year old woman on a bus in New Delhi. The woman's internal organs were so badly injured during the assault that she died in hospital thirteen days later. According to CNN, four of the attackers were sentenced to death for her rape and murder; another died in police custody; and the last, just 17 years old, received the maximum sentence for a juvenile in India: three years imprisonment. That sentence ended last week, and after the young man was released people across India reacted with demands for stronger laws against sexual violence, calling on the government to amend the Juvenile Justice Act, which originally passed into law in 2000.

The proposed amendment for that law was approved on Tuesday. According to The Indian Express, under the updated Juvenile Justice Act, "any person aged between 16 and 18 years and accused of a heinous offense... may be tried under the [Indian Penal Code] and not the [Juvenile Justice Act] if, after a preliminary inquiry, the Juvenile Justice Board feels that the crime was committed with full knowledge and understanding of the consequences."

Read More: How the U.S. Is Hurting Rape Victims Around the World

Dr. Kristine Artello is a professor at the Douglas Wilder School of Government and Public Affairs at the Virginia Commonwealth University. She specializes in sexually aggressive youth, a population she was recruited to work with during her time as a caseworker in child protective services. "[The New Delhi gang rape] is deplorable. It's horrific for the family and the victim," she says. But, according to Dr. Artello, the extreme violence in this case doesn't directly correlate to a need for stronger laws against juvenile offenders. "Juvenile sex offenders have a very different typology of committing crimes than adults. [They] are more likely to succumb to peer pressure, and so are more likely to offend in groups than adults," she says, explaining that the group aspect in this case is significant. "Juvenile sex offenders have a very low recidivism rate... Having worked with this population, the vast majority of kids on my caseload did not sexually recidivate."

In 2015, the Department of Justice released a research brief, the Sex Offender Management, Assessment, and Planning Initiative. According to their report, the recidivism rate for juveniles who commit sex based offenses varied between 7 and 13 percent after 59 months. These rates were found to be "generally lower than those observed for adult sexual offenders," and, "a relatively small percentage of juveniles who commit a sexual offense will sexually reoffend as adults."

But the recent law reform in India increases potential sentencing for juvenile offenders, and many in India have argued that anyone, juvenile or adult, should be severely punished for acts of extreme violence. Simon Singer is a professor of Criminology and Criminal Justice at Northeastern University. "No minor can be tried as an adult, because they are not adults," he explains. "They could be brought into criminal court and given an adult sentence—but the fact of their adolescence at the time of the offense cannot be denied."

Expand the punishment options in juvenile court—make them harsher for those rare cases of serious violence.

Singer agrees with Dr. Artello that part of this issue is about deterrence, the question of whether or not the perpetrator will repeat his crime. "[This is] a difficult question to answer, because they are rare events, [though] there are a few cases of chronic, violent juvenile offenders." He says the solution is to "expand the punishment options in juvenile court—make them harsher for those rare cases of serious violence," which is exactly what lawmakers in India are in the process of doing.

"We forget that the juvenile court system was invented in America," Dr. Artello adds. "It was invented during the progressive era, first founded in 1899 in Chicago, and it was because we viewed children as different than adults." Dr. Artello is referring to the case of an eleven-year-old boy named Henry Campbell. According to the Chicago Tribune, in 1899 Campbell was being tried for larceny in the nation's first juvenile court. He was labeled a delinquent instead of a defendant by Judge Richard Tuthill, who sentenced the boy to live with his grandparents, rather than be imprisoned for his crime.

"[Juveniles] commit crimes for a variety of different reasons than adults, therefore they should be treated differently," Dr. Artello says. "Children have greater capacity to change and conform to the laws, if they're given a chance." The offender in this case was nearly 18 years old at the time of the offense, meaning he was on the cusp of being a legal adult. Where do we draw the line? Dr. Artello says that this factor mirrors the current debate in the United States over how to regulate the prosecution of violent crimes committed by young people.

To her, this issue ultimately comes down to the limits of law reform and sentencing. "Can [the amendment to the Juvenile Justice Act] be perceived as pro-feminist? Of course it can. It can also be perceived as pro-safety and a win for the protection of the family—but you also have to be careful." She questions the idea that harsh sentencing is the best way to protect women and people in general. "Once you go into prison, development stagnates."

According to Business Insider, a 2014 report from the National Research Council found that long sentences are not the most effective deterrent of crime. The lengthy sentences that youth 18 and over face have not produced a statistically significant decrease in crime by that population. According to the report, "The evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure." Instead of longer prison sentences, the National Research Council noted that 'immediate' and 'certain' punishment are indicated as effective crime deterrents. Business Insider notes, "Overall, the report recommends that federal and state officials alter criminal justice policies to reduce nationwide incarceration rates, '[g]iven the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration.'"

Read More: It's Still Legal for a Man to Rape His Wife in India

"When we're talking about sexual crimes and sexual aggression, we need to look at a shift in the culture. No means no," Dr. Artello says. "The message needs to come not only from the women, but also from other men: that [rape] is not viewed as machismo." She says that when women are raped, they're objectified, viewed as property. "Women [must no longer] be viewed as property, and in India that is still very much an issue, with child brides and such."

Law reform and cultural upheaval aren't diametrically opposed. There is a link between confronting underlying issues that enable sexual violence against women and ensuring that the legal system is actually providing justice. If a country is structurally sexist, it's logical to suggest that altering part of its structure to more fiercely prosecute the perpetrators of sexual violence may have a reverberating effect on cultural sexism, but the limitations of sentencing regulation and imprisonment cannot be ignored. According to Singer, the purpose of altering the legal distinction between juvenile and adult prosecution is to serve the community at large. "[Prosecuting a juvenile as an adult] announces to the public that the adolescent has committed a highly serious offense, and that the sanctions in criminal court are not severe enough based on the harm to the the victim and to the community at large."