by Akshita Tiwary 22 July 2020
Incest is defined as the sexual relationship between close blood relatives who are forbidden by law to marry. While many developed nations around the world have criminalised incest, the Indian Penal Code contains no specific provision against this crime. This article aims to analyse why it is imperative to have a law against incest in India, in keeping with the principles of criminal law, especially with regards to child sexual abuse within the family. It also discusses some past bills related to criminalisation of incest, and argues why there is a need to implement a new bill particularly related to criminalising juvenile incest.
The idea of incest is considered to be a social taboo in many cultures and societies.[i] However, lately the criminalisation of incest between consenting adults is being questioned by some people. Nevertheless, incestuous relationships with children cannot be justified on any grounds and require criminal redressal on an urgent basis.
Existence of Juvenile Incest in India
Several horrific instances of juvenile incest have been reported in India. In 2009, a father was exposed for sexually abusing his daughter for nine years. In 2014, the Delhi Police reported that out of 1,704 rape cases lodged in the capital in the first 10 months of the year, 215 were cases of incest. In 43 of these cases, the father was the perpetrator, and in 27 cases it was the brother.
Juvenile incest is an ugly reality which is flagrant in our nation. A 2007 study conducted by the Ministry of Women and Child Development revealed that 53.22% of children faced sexual abuse and in almost half of these cases, the abusers were known to them.[ii] In 1998, another study was conducted by an Indian NGO, Recovery and Healing from Incest (RAHI), which showed that 76% of 600 English-speaking middle and upper-class women were abused in childhood or adolescence, and 40% were abused by at least one family member.[iii]
Both boys and girls are victims of juvenile incest. More often than not, they are unable to speak up against their abusers (who are traditionally in a position of power) so as to preserve the family honour. They suffer in silence while the abuse has serious ramifications on their physical, mental, emotional and psychological health. Criminalisation of juvenile incest is imperative to increase awareness about this crime and protect millions of innocent children from undergoing such a traumatic experience.
Rationale for Criminalisation of Juvenile Incest
The “harm principle” under criminal law clearly states that when an action undertaken causes harm to another person, then it results in a wrong which should be corrected through a remedy. Often, this remedy is provided through the criminal justice system which seeks to punish the offender under existing criminal laws. Theorists of criminal law widely agree that a conduct may be criminalised only when it is wrongful. It is not difficult to prove how juvenile incest is a wrongful act, and should be made a penal offence under Indian law.
Sexual relations with a minor are already illegal according to relevant laws like POCSO. The idea behind setting a minimum age of consent for minors is that they are considered to be “incapable” of fully analysing the consequences of such an act and may be forced to indulge in it by adults. Thus, it is designated as a wrongful act which is adequately punished under criminal laws.
A corollary can be drawn here with respect to juvenile incest also. Sexual relations with a minor within the family ought to be criminalised as well. In fact, juvenile incest is more wrongful than rape of an unrelated minor. When a minor is sexually abused by a relative, he/she suffers a trauma which is greater than the one experienced by a minor who is harassed by an unknown person. This is because the family is supposed to be a safe and nurturing space for juveniles. Elders within the family have a duty to take care of them. Violation of this duty by indulging in heinous acts like juvenile incest should not go unpunished. Therefore, incest with a juvenile should be punished more severely than rape of an unrelated minor since the degree of harm and wrongfulness in the former is higher.
Why should juvenile incest be made a separate offence?
Several laws already exist which criminalise sexual relations with a minor. The question which then comes to mind is whether juvenile incest should be made a separate offence, or whether it should be treated as an aggravated form of statutory rape of a minor?
In the words of Andrew Ashworth, “widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences should be divided and labelled so as to represent fairly the nature and magnitude of the law-breaking.”[iv] The classification of offences sends an important message about why a particular conduct is criminalised, based on the priority of harms and wrongs that it entails.
As discussed in the above section, having sexual relations with a related minor is more harmful and wrongful than having sexual relations with a non-related minor. As a result, it is only logical to make juvenile incest a separate offence under the Indian legal system because of the aggravating consequences that the minor has to face in such a situation. Additionally, potential offenders often indulge in juvenile incest due to the lack of fear of prosecution. This makes juvenile incest more widespread in our society. Thus, classifying it as a separate crime will increase the fear of getting caught, and hence, deter individuals from participating in such monstrous acts.
Indian Bills related to Incest
Certain bills related to the criminalisation of incest have previously been introduced in the Parliament of India. These include The Incest Offences Bill, 2009, The Incest and Sexual Abuse in Family (Offences) Bill, 2010 and The Incest Offences Bill, 2012. Barring some minor differences, all these bills provide strict punishments for abusers who would be charged with incest. They also define the close family members who could legally be guilty of incest, and the burden of proof is put on the accused with trials to be carried out under the provisions of the Code of Criminal Procedure, 1973. In cases of incest with a minor, the 2009 and 2012 bills subject the offender to life imprisonment while the 2010 bill subjects the offender to death.
The striking feature of these bills is the effort to criminalise incest in India which is often unreported because there is no law against it. This allows abusers to escape criminal prosecution as the legal system refuses to believe that a child can be molested by a family member. The ‘Statement of Objects and Reasons’ of all these three bills asserts the importance of having a law against incest in India in keeping with other developed nations like the United Kingdom, Canada, Germany, United States and others. Unfortunately, none of these bills have been enacted by the Parliament till date. In view of increasing incidents of child sexual abuse within the family, the legislature needs to revisit these bills so as to frame a law against juvenile incest once and for all.
Social denial to recognize the existence of juvenile incest acts as a huge impediment in the protection of child rights within the country. Article 19 of the United Nations Convention on the Rights of the Child (1989) explicitly directs nations to take all measures to protect children from 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 criminalisation of juvenile incest is important for India’s fulfilment of obligations under this treaty, especially in view of the rampant child sexual abuse within the family. Hence, creation of a new law to punish those accused of juvenile incest is necessary to help in the eradication of this social evil and provide proper justice to the victims of such an abuse.
[i] Jonathan H. Turner and Alexandra Maryanski, Incest: Origins of the Taboo (Paradigm, 2005), 3-25.
[ii] Ministry of Women and Child Development, Government of India, National Study on Child Abuse: India 2007, (2007), 1.
[iii] Recovery and Healing from Incest, Voices from the Silent Zone (New Delhi: RAHI, 1998), 14.
[iv] Andrew Ashworth, Principles of Criminal Law (Oxford, 6th ed. 2009), 78-80.
This article was first published on the Criminal Law Blog by National Law University, Jodhpur on 21st July, 2020. Here is the link for the same: https://criminallawstudiesnluj.wordpress.com/2020/07/21/the-need-to-criminalize-juvenile-incest-in-india/