JUVENILE INCEST: THE NEED TO MAKE IT A DISTINCT OFFENCE IN INDIA
Updated: Aug 28, 2020
By- Yukta Ambastha & Shreya Srivastava, 2nd Year, B.A., LL.B (Hons.) Students at National University of Study and Research in Law, Ranchi
Incest is defined as sexual intercourse between two persons commonly regarded as too closely related to marry. While many developed countries like Britain, the US, and Germany regard incest as a serious offence and have prescribed strict punishments for it, India does not regard incest as a separate crime. Incest is not defined in the penal provisions of India. If individuals are involved in incest, they may be punished for any other legal ground such as sodomy or rape. If the victim is a minor, it has separate sexual abuse provisions under the Protection of Child from Sexual Offences Act 2012. It has not been made a separate offence per se.
Incest is one of the most dreadful crimes of all, and yet more common than imagined. Even if a female minor child is sexually assaulted often by their close relation, the punishment of outraging the modesty is only two years of imprisonment. Similarly, the punishment of rape is a maximum of ten years. In 1983 the laws against rape were amended to include the policemen, prison, and hospital staff who rape women in their custody. They have been made liable for custodial rape. The issue of incest remains a grey area in the law. Father being the natural custodian, should also be included in this category. An incestuous relationship with a minor can not be justified on any grounds and needs to be addressed. Juvenile incest should be placed under rarest of rare category, and stringent laws should be passed to remove this social stigma from society.
PREVALENCE OF JUVENILE INCEST IN SOCIETY
A stark reality is that the incidents of incest are widely prevalent in society. We usually do not talk about the sexual abuse of children and the incidents of incest, but it is no secret that they exist in society. It is prevalent not only in slums and among the deprived segments of the society, but also in educated, well-educated families. There have been horrible instances of juvenile incest in India. In 2020, a 15-year-old boy raped his own younger sister. In a horrific case of incest in 2017, a man and his son were arrested for sexual assault on their minor family members. While the man abused his elder daughter for nearly a year, the son forced himself on his other sister. In the same year, a 10-year-old victim was raped by her uncle, and she got pregnant.
As per the report of RAHI (Recovering and Healing from Incest), a Delhi based organization, working on the issue of child sexual abuse titled Voices from the Silent Zone had revealed that 76% of respondents to its survey had been abused when they were children — 40% of those by a family member. The findings of a study undertaken by the BBC point out that one out of ten women covered by the study reported some sexual abuse during childhood by known persons, ranging from father and uncles to doctors and counselors.
Boys and girls are both victims of juvenile incest. Victims of incest are usually reluctant to reveal the crime since the abuser is a known person who is trusted and is usually in a position of authority to the victim. In Indian society, the family is more anxious to protect abusive fathers or such perpetrators to protect the family reputation, so most go unnoticed. It is a highly sensitive issue that can destroy the essence of a family; hence, it is often kept hidden in the dark corners of the family. The psychological and physical impact it has upon a child is rarely taken into consideration.
Such incidences are increasing every year in India. Most of the cases are unreported due to the fear of society. Incest is considered a social taboo, and hence stringent laws are required for curbing it from roots in the society.
IMPACT OF JUVENILE INCEST ON THE MENTAL HEALTH OF MINOR
There are severe ramifications of incest on the mental health of the minor. A human being's experiences and relationships with their family members during childhood play a vital role in their well-being for the rest of their lives. The exposure of widespread physical and emotional abuse within the family has been of great concern. Incest is the breach of trust. It is this betrayal of innocence and resultant confusion, along with the loss of control and power over one's behaviour, which leads to the emotional and psychological impact on the victim. Victims often experience the incestuous act and later as adults, a sense of shame, a feeling of powerlessness, and a loss of their childhood. Juvenile incest victims suffer short-term and long-term effects, including eating disorders, vomiting, alcohol abuse, suicidal thoughts, and self-mutilation.
THE NEED TO MAKE IT A SEPARATE OFFENCE
Now there arises a question as to whether such conduct should constitute an entirely separate offence, called "incest," or whether it should simply be treated as an aggravated form of statutory rape. It is typically even more wrongful and harmful for an adult to have sex with a related juvenile than for him to have sex with one who is unrelated. The adult has a special duty of care to the related juvenile. In particular, parents must look out for their minor children's best interests and protect them from harm. When parents (and other related relatives) have sex with juvenile children, they invariably engage in a gross violation of such duties.
Moreover, the harms done to related juveniles are even worse than those done to unrelated ones. The extremely cruel and debased conduct of the father, brother, uncle, and near relatives of the victim within the roof is a more atrocious act than rape by a stranger. Treating incest as an ordinary offence of rape and giving the same punishment will distort the severity of the offence. To impose a severe penalty to the near relations and persons in a position of trust and authority who more often than not commit the offence of sexual assault on the members of the family or on unsuspecting and trusting young person is essential given the enormous number of incest in the country.
Andrew Ashwort stated that "widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signaled by the law, and that offences should be divided and labeled so as to represent fairly the nature and magnitude of the law-breaking." How we choose to label and classify offences sends important signals about why we are criminalizing the conduct, and the priority of wrongs and harms it entails. Criminalizing juvenile incest would send a strong message to the community, and people would fear before committing such heinous crimes. Therefore juvenile incest should be punished more severely and should not be simply treated as an aggravated form of statutory rape.
We need to comprehend and accept incest as a part of our society and realize that closing our eyes and denying it will not solve the problem. The abusive act includes the exploitation of the child's body and the trust associated with the relationship. The victims, especially children, are helpless before the perpetrators of crime; hence, they need to be provided solace and protection, keeping in mind that they have been subjected to sexual abuse of the worst possible nature. The 172nd Law Commission Report also recommended provisions for incest. It proposed to include rape committed by father, grandfather, or brother or any other person being in a position of trust or authority towards the other person within its ambit. Article 19 of the United Nations Convention on the Rights of the Child (1989) states that nations should take all measures to protect children from all forms of abuse including mental violence, negligent treatment, maltreatment, exploitation or sexual abuse by a parent, legal guardian or any other person who is entrusted with the care of the child. India has ratified this convention and therefore is obligated to take whatever action is required to prevent child abuse. The need of the hour to revisit the laws and make the horrific crime of juvenile incest a separate offence under India's penal provisions.
4 SHELDON TRAVIN, JUVENILE PSYCHIATRY AND THE LAW 85( Richard Rosner and Harold I Schwartz ed. 1989)
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 78-80 (6th ed.2009)
 Law Commission, 172nd Report on Review of Rape Laws, 2000
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)