Castration as a punishment has captured the public discourse after the observations of a Madras High Court Judge in an order against a British national. The Judge in question, Justice N Kirubakaran, made recommendations in favour of castration as a punishment for child sexual abuse wherein he observed ‘Barbaric crime should definitely attract barbaric models of punishment’.
By Minakshi Das and Srishti Agnihotri
Castration as a punishment has captured the public
discourse after the observations of a Madras HC Judge in an order against a
British national. The Judge in question, Justice N Kirubakaran, made
recommendations in favour of castration as a punishment for child sexual abuse
wherein, he observed that ‘[b]arbaric crime should definitely attract barbaric models of punishment’.
Image Attribute: Youthkiawaaz.com
Public discourse on the issue has been expectedly
divided.
On one hand, human rights proponents have opposed the suggestion vehemently, while on the other hand,
supporters of castration relying on practices in certain western democracies
have
argued for implementation of the same in India. However,
much of the support for castration is on account of an emotive trigger, which
ignores the fact that replicating western practices may not always yield the
same results in India. Given this, it is suggestive that the absence of robust
implementation mechanisms and a faulty criminal justice system in India will
ensure that such measures are open to horrific abuses.
What is noteworthy is that, in this process there are
two implicit assumptions that have not been challenged. First, there no guarantee that if implemented, chemical
castration will provide justice to victims of child sexual abuse. And secondly, the assumption that symbolic punishment like
castration can deter child sexual abuse, stands questionable. In this context, as far as the first assumption is
concerned, we believe that in order to ensure justice for victims of child
sexual abuse, the criminal justice system needs an overhaul. For proposing
severe and admittedly barbaric forms of punishment would only address the
symptom and not the disease. While regarding the second assumption, it is
important to assess the deterrence value of these measures when compared to a
particular system- one that dispenses justice swiftly and effectively.
Besides, there is also a third normative issue. Where,
if castration were to be an effective remedy to curb child sexual abuse, then
would we as a society want to go down that road? Do we wish to “talibanize” our criminal justice system by initiating such ghastly practices? In
this perspective, a cursory reading of the principles enshrined in our
Constitution and various human rights documents, which we have ratified, would
substantially point otherwise. Thus, in this regard, our analysis stands
limited to the first two issues.
The Protection of Children from Sexual Offences (POCSO Act) was enacted in 2012 with the objective of protecting children from
sexual assault, sexual harassment, and exploitation. However, the provisions of
this excellent legislation haven’t assisted us in tackling the scourge of child sexual
abuse effectively. Criminal trials still end up with a high rate of acquittals
and with victims often turning hostile. The police force continues to be
overworked, and the Courts overburdened. The provision for a speedy trial to be
conducted in the time frame of one year, as mandated under the POCSO Act hasn’t been complied
with in a majority of cases. These and a host of other implementation gaps have
effectively reduced an otherwise comprehensive legislation into a mere paper
tiger. Consequently, the unpleasant experience with the criminal justice system
and the fear of a prolonged trial makes a lot of families reluctant to take a
case forward or causes a victim to turn hostile.
Issues such as mandatory reporting, which obligates
persons to report on-going or future violations of the Act to the Police and
Special Juvenile Police Unit are not known to majority of people because of
inadequate awareness exercises. Given this backdrop, we believe that it is only
through sustained inter stakeholder coordination comprising of NGOs, the legal
community and the political class that we can realize the objects and purpose
of the POCSO Act.
The ‘castration
discourse’ ignores the nuances and gradations of child sexual
abuse by centring in the male genitals. Child sexual abuse can involve
inappropriate touch, harassment, and stalking, as well as penetration. Does it mean if castration fails as a perfect
deterrence to control the deviants, the next measure to prevent CSA cases would
be putting the accused in a straightjacket? On the issue of deterrence value of
such symbolic punishments, let us consider the case of Bernard Madoff. Madoff
was sentenced to 150 years for Ponzi Scheme, who at the time of sentencing was
71 years old. Judge Chin, to address the growing concern of White Collar Crime
wanted to instil fear among the corporate and finance moguls. In doing so, he
vividly mentioned that the idea of punishment sprang from three core attributes
of punishment- “retribution”, deterrence” and a good “measure of justice for the victims”. Clearly, Justice Chin’s reasoning did not yield the intended results as
White Collar Crimes has only risen in the past 50 years. Given this analogy,
could we suggest with absolute certainty that castration of offenders will act
as a silver bullet for eradication of child sexual abuse.
The best measure of a strong contemporary justice
system with progressive ideology should have a blend of both utilitarian (crime
prevention and reduction) and non-utilitarian (retributive method) methods. It
demands for a pragmatic and result oriented approach for a greater good. The
idea of crime reduction in child sexual offences can be secured only if quality
preventive measures are undertaken to cure the situational problems. The law
enforcement body needs to identify the place, hot spots of CSA cases, mapping
high crime rates of CSA cases and providing quality prevention lessons and
guidelines in schools, parents and educating the society at large will help
create a safety net for the children and hence ensure crime reduction. Symbolic
punishment can never be the perfect cure. It might help in generating fear
temporarily but will fail to address the problem in the long run.
Incapacitation and deterrence are older models of punishment and its inhumane
approach can be labelled as regressive. For a contemporary “nyaya” (justice)
system, the idea of crime reduction should be on prevention,
rehabilitation and study of criminal behaviour to ascertain effective counter
measures.
Therefore, given the problems with the implementation
of the law, it becomes evident that ideas such as chemical castration or the
death penalty are intellectual band-aids. That is, they delude us into thinking
that the problem of child sexual abuse can be fixed without hard work and
painstaking effort. Our children, however, need a complete first aid kit and
not simply band aids.
About The Authors:
Minakshi Das (0-1646-2015) and Srishti Agnihotri (O-1436-2015). Both the authors are lawyers and have been working in the field of child rights and the implementation of the Protection of Children from Sexual Offences Act, 2012
About The Authors:
Minakshi Das (0-1646-2015) and Srishti Agnihotri (O-1436-2015). Both the authors are lawyers and have been working in the field of child rights and the implementation of the Protection of Children from Sexual Offences Act, 2012
________________________________
Publication Details:
Minakshi, Das,
and Srishti Agnihotri. "OPINION | Why We Need to Stop Putting a Band-Aid
on Child Sexual Abuse." IndraStra. November 17, 2015. Vol 1, Issue 11,
0439
https://www.indrastra.com/2015/11/OPINION-Why-We-Need-to-Stop-Putting-a-Band-Aid-on-Child-Sexual-Abuse-0439.html.|ISSN
2381-3652|
