Castration, Prohibition, and Sex Ed – Read the Madras HC’s suggestions on fighting sexual abuse

The Madras High Court is in the news again, and this time it is because a judge has recommended castration as punishment for perpetrators of child sexual abuse. Justice Kirubakaran was hearing a writ to quash the proceedings against a British national accused of sexually abusing a minor in 2011..In light of the growing incidence of child sexual abuse in India, Justice Kirubakaran, in an impassioned order, suggests that the Centre incorporate “castration as additional punishment instead of shying away from taking a decision in the name of ‘Human Rights’.”.And quite a few people seem to be in consonance with this notion, including women and child rights lawyer, Senior Advocate Pramila Nesargi..Nesargi believes that chemical castration should be introduced as a punishment on an experimental basis..“I am of the view that fear is not there in the minds of offenders, and children are being taken for a ride. Unless some serious punishment is prescribed, it won’t stop. What the judge has recommended must be experimented..In criminal law, when an offence is committed, the weapon is confiscated. Similarly, in a rape case, the weapon used is the part of the person which should be chemically taken away.”.A similar sentiment is echoed in Justice Kirubakaran’s order. He justifies his stance by saying that “barbaric crimes should definitely attract barbaric mode of punishment”..So, does the fact that the number of child sexual abuse cases have gone up from 22,5000 in 2008 to 89, 423 in 2014 call for extreme measures to be taken?.Swagata Raha from NLSIU’s Centre for Child and Law, says that the skyrocketing figures do not necessarily spell doom..“If we are seeing a spike in reporting of these cases, there are two ways of looking at it – one is that the awareness levels are going up, and secondly, the POCSO Act raised the age of consent from 16 to 18 years..If you analyse all the judgments passed by special courts in Delhi, most of the cases involve victims in the category of 16-18 years and most of these cases are of elopement. When they run away, the parents file a case under the POCSO Act. The figures have to be interpreted in this light; not everything is necessarily negative..The court should have expressed more concern about the rate of conviction, instead on dwelling on why the number of reported cases are increasing.”.In fact, this is not the first time castration has been discussed as a punishment for sexual offenders..In the aftermath of the December 2012 Delhi gang rape, the UPA government had suggested to the Justice Verma Committee that chemical castration be considered as additional punishment for rape cases..However, in its final report, the Committee stated that the practice was unconstitutional..“We note that it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason we do not recommend mandatory chemical castration of any type as a punishment for sex offenders…”.Another valid point made by the Committee is the fact that rape, or in this case, child rape, very often is a crime of power and not merely a result of uncontrollable libido..“We are further of the opinion that chemical castration fails to treat the social foundations of rape which is about power and sexually deviant behaviour. We therefore to hold that mandatory chemical castration as a punishment contradicts human rights standards.”.These are findings that Justice Kirubakaran clearly disagrees with. In a paragraph dealing with the need for sex education, the judge holds that,.“…youngsters naturally are curious to know about the sex and they tend to see pornesites leading to sexual arousal and commission of sexual offence against the children.”.In order to tackle the issue, Justice Kirubakaran has even suggested a ban on alcohol..“Since liquor is one of the basic main reasons for commission of more and more crimes especially child sexual abuses affecting the entire society day by day, the Central Government and State Governments may consider “introduction prohibition” in consonance with Article 47 of the Constitution…”.In the midst of all the extreme suggestions and conclusions, the order recommends compulsory sex education in schools to help children recognize what constitutes abuse. However, what Justice Kirubakaran suggests to be taught is again problematic. The proposed syllabus for the course would also include “disadvantages of nuclear family system” and “correct marriage age”..Justice Kirubakaran had earlier courted controversy when he recommended the dissolution of the Bar Council of India and the abolition of the 3-year law course..HT to @SauravDatta29 for sharing the judgment..(Read the complete judgment below)