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.

Where, in fact, do teenagers learn to rape and kill? They are not born ‘criminal’ or ‘violent’. They learn such behaviour in the environment we, as a society, provide them. 94% of rapes happen inside households or other private places, by trusted persons. 2 out of every 3 children in India face sexual abuse or physical abuse in families and schools. And kids from poor households face even worse violence where they work: as truck drivers’ assistants, in dhabas; and as household help in homes. If and when they come into the hands of the police, these kids from poor, neglected households, face horrendous torture, including rape in police custody. Even inside the juvenile homes, violence, malnutrition, cruelty and rape, even by the care-providers, are rampant. In this backdrop, is it any surprise that teenagers learn violence?

In spite of this, the numbers cited by the Minister for Women and Child Development are false. She claimed that 50% of rapes are committed by juveniles – in fact, NCRB data shows that juveniles are accused of only 1.2% of total IPC crimes. And the NCRB data also shows that rape cases involving juveniles declined from 4.7 per cent in 2012 to 4.1 per cent in 2013. It must also be remembered in looking at this data, that a large percentage of these so-called ‘rape’ cases involving juveniles are actually false cases filed by parents in cases of consensual elopement.

The international experience shows that young offenders retained in the juvenile system were far less prone to repeating crimes than young offenders who were transferred to the adult court and jail system. The US Department of Justice, in a 2011 report, cited six large-scale studies that found youth who were criminally prosecuted in the adult system were generally found to have re-offended “sooner and more frequently.” This report observed that “Poor out­comes like these could be attributable to ...the direct and indirect effects of criminal conviction on the life chances of transferred youth, the lack of access to rehabilitative resources in the adult corrections system, and the hazards of association with older criminal “mentors.”” As a result of this experience, between 2005 and 2010, fifteen US states enacted laws to prevent young people from entering the adult criminal justice system.

Ironically, the NDA Government’s proposed new legislation has actually had to admit the difference between a juvenile offender and an adult offender. The amendments say they will not reduce the age of juvenility, that Juvenile Justice Boards will decide whether or not the young accused are to be transferred to an adult court, and that juveniles below 18 will not get life imprisonment or the death sentence. If this is the case, what is the purpose of jailing some juvenile offenders – i.e exposing them to adult criminal mentors in jails? The JJ Boards will be under unfair pressure in some cases where media coverage is greater, to transfer the accused to an adult court. And the decision to transfer such cases will actually prejudice the adult courts against the accused.

In India, if we want to prevent crimes by young people to increase, we have to invest more attention and funds in the care of the young. We should invest in ensuring that all young people get education, including sex education, and that juvenile correctional homes are properly monitored to ensure that the care and effort needed to transform juvenile offenders is actually being provided.