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Delhi Assault Case: Can a 4-Year-Old Be Charged With Rape?

Delhi Assault Case: Can a 4-Year-Old Be Charged With Rape?

"At four years of age, the child is NOT in a position to understand the nature and gravity of what he has done. In my opinion, the child may have either seen something or experienced something that he translated into this act."

The national capital is notorious for the sheer number of sexual crimes that occur. The statistics showing the number of such cases is chilling. However, when the victim and the perpetrator are both about four years of age, you sit up and wonder what is going wrong.

The two children were in a school washroom when the unfortunate incident occurred. The boy allegedly asked the girl to pull down her pants; he then proceeded to put his finger into her vagina. Some reports also suggest that the boy inserted a sharpened pencil into her vagina. When the girl reached home, she complained of pain in her abdomen, and it wasn’t until much later that she revealed the area of her pain.

A First Information Report (FIR) has been filed, and a case of rape has been registered against the boy. However, since The Indian Penal Code (IPC) provides children below seven years of age certain protections against prosecutions, questions arise as to how to view this particular case.

Hridi Motwani Kukreja, Head of Programme, School of Life, commenting on the incident, says, “It is wrong in such a situation to blindly label the act as a sexual one. At four years of age, the child is NOT in a position to understand the nature and gravity of what he has done. In my opinion, the child may have either seen something or experienced something that he translated into this act. Unfortunately, in India schools have no mandate to conduct workshops on ‘good touch, bad touch’, body awareness, sexual health etc. for children. The need of the hour is to be proactive rather than reactive.”

Legally speaking Section 82 of the Indian Penal Code reads as follows:

The act of a child under seven years of age. — Nothing is an offence which is done by a child under seven years of age.

The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines ‘children’ as those aged below 18.

Siddharth Sethi, Partner, J Sagar and Associates says, “There is an absolute exemption in the IPC if the child is under the age of seven. In fact to deal with such situation The Protection of Children From Sexual Offences (POSCO) Act was notified by the government. There have been instances where conflicts have arisen between the IPC and the POSCO.”

“The present case is a glaring example of the how the provisions in these two statutes are at variance. Now if we only look at this case from the IPC standpoint then there is no offence committed, and therefore no prosecution can take place.

Even though the IPC is an old statute which was passed in 1857, enough time has passed, and the world has evolved since then; but to my mind even today a four-year-old is not capable of having the intent of committing an offence of such a nature.”

This is also not the first time where a conflict between the two statues has arisen.

Source: Wikimedia

Earlier this year Nobel laureate Kailash Satyarthi approached the Apex Court asking for the court’s intervention on the matter of the legality of sex with a minor wife.

Advocate Karuna Nundy, says, “If you are a child under the age of 7 then you do not have the mental capacity or mens rea to commit a crime. What is present however is the actus rea, which is the physical act in itself.

This is a peculiar situation and the conflict that exists between the two statues needs to be interpreted by the courts.”

Taniya Dutta, a teacher and a parent from Gurugram shares her view and says, “The only way to a student’s heart or head is through communication. Students at a very tender age are exposed to a lot more than their young shoulders can carry.

Laden with stress, peer pressure, and daunting challenges they often fall prey to the evils; no wonder the juvenile delinquents have become the talk of the town!

It is appalling but true that there is still a dearth of people who can listen to them without judging them.

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Teachers who can take the first step often tend to label their problems while questioning their strength of character. Keeping all channels of healthy communication open could help us nip a lot in their buds so that we don’t wind up getting the short end of the stick.”

What values should we be inculcating in children? How much should we monitor their play and screen time? How much information should we give them about sexual health at this age? These are perhaps just some of the questions that parents are left with.

While this incident is very disturbing, it is important that we keep in mind a few things when we are dealing with children; either as parents or their caretakers.

• Talk to children about their bodies and ensure you name the private parts as is. Referring to the penis or vagina with other names might confuse the child. Be direct.

• Good touch and bad touch are important concepts that must be explained and reiterated from a young age, as early as three years of age. It is important that the child understands and internalises this.

• Children must be empowered to say NO and walk away from potentially disturbing or threatening situations.

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