Inconsistency of Feminist Jurisprudence with Laws Protecting Children from Sexual Offences

Author:- Anugra Anna Shaju

Feminist Jurisprudence:

Feminist Jurisprudence attempts to identify and study the effects of legal structures and systems on women and women’s lives. The concerns put forward by advocates of feminist jurisprudence are regarding formal equality and equal citizenship, marriage, reproductive rights and commodification of the body, violence against women, and equality in social and economic life. Therefore, the fundamental themes in feminist jurisprudence include the rule of law, equality and difference, reasonableness in law, public life and private life distinction and human rights. But one of the main themes of feminist jurisprudence accepted by all branches is that women’s experience must be revealed and communicated i.e., focusing upon the practical reality of women’s experiences and concerns. Initially, feminist jurisprudence was put forward so that women and their concerns are visible in the legal system and laws of the country. These attempts helped to draw attention to women and put some of women’s concerns on the political agenda to an extent. But these were heard and evaluated by men according to masculine standards. Thus feminist jurisprudence is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.’

There are three major schools of thought within feminist jurisprudence: traditional or liberal feminism, cultural feminism and radical or dominant feminism. Traditional or liberal feminists assert that women are equal to and are as rational as men while cultural feminists point out that there exists differences between men and women. They believe that women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions whereas men emphasize abstract principles of rights and logic, both go hand in hand and should be given equal recognition. Radical or dominant feminists are against traditional approaches and believe that men have always dominated women. They believe equality comes through power.

Feminist Jurisprudence and Adjudication:

Feminist Jurisprudence challenges claims to neutrality as they believe that judges might have negative ideas of women or of their roles in the society. Similarly, feminists are against the usage of precedents as case laws may be derived from cases in which plaintiffs and defendants are men and courts might not look into the circumstances which might have made a women act differently.

Judges often due to social and cultural influence of feminism and feminist jurisprudence are lenient in determining liability and giving sentence to females. In India, male and female criminals and offenders are not treated equally. The Supreme Court has opined in State Of H.P v. Nirmala Devi that though gender is not a mitigating factor in many countries of the world, however, as far as the Indian judiciary is concerned, gender is a relevant circumstance taken into consideration while deciding the quantum of the sentence to be given to a female criminal. Perceptions of women and their likely reactions in certain have also resulted in conviction of women. In Satni Bai v. State of Madhya Pradesh, the mother was found standing next to her son’s dead body with an axe in hand. Court observed that normally a mother would clutch the body of her son and the woman was convicted. Similarly in Lichhamadevi v. State of Rajasthan the mother-in-law was convicted because she had harassed the deceased for dowry, had an ‘overbearing’, ‘barbaric’ attitude, and was the ‘master of the house’.

Women are treated as being less dangerous than men, a lesser threat to society and thus held less responsible for their action. But though low number of women commits crimes, women can also be as violent as dangerous as male criminals. The assassination of former Indian Prime Minister Rajiv Gandhi by a female terrorist of LTTE stands as example. The predominant factors which are found to determine criminal tendencies in Indian women are economic insecurity, social deprivation, emotional disturbances, family and domestic quarrels and destitution. Social environment, deviance and migration from rural areas to urban areas and the imbalance in their adjustment to the new life may also result in an increase of crime among women.

Child Sexual Abuse:

According to the World Health Organization, it is estimated that up to 1 billion children aged 2–17 years, have experienced physical, sexual, or emotional violence or neglect in the past year. Half of India‘s children face some form of sexual abuse, with 21% having faced severe sexual abuse and boys account for around 53% and girls for 47% of all children reporting abuse. The main laws in India against child abuse are Protection of Children from Sexual Offences (POCSO) Act and Juvenile Justice Act.

The Protection of Children from Sexual Offences (POCSO) Act 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children through legal provisions. The main objectives of the POCSO act are to prevent sexual assault, sexual harassment and pornography.

The Juvenile Justice (Care and Protection of Children) Act 2015 provides strengthened provisions for both children in need of care and protection and children in conflict with the law.

Female child sex offenders:

An article called Misconceptions about child sex offenders published by the Australian Institute of Criminology says that nearly 0.9 and 0.8 percent of victims reported to being sexually abused by a female relative or their mother or stepmother. Despite a number of cases of female child sexual abuse, the criminal justice system and society in general often trivialize female sexual abuse. There is a social taboo or societal “culture of denial” surrounding cases of female child sex offenders due to which cases are under reported. Even professionals in the healthcare and justice system have been unable to respond appropriately in cases of child sexual abuse committed by women.  A reason for this could be that female sex offenders often play the role of caregivers to the victim like mothers, relatives, or babysitters. Victims are often unable to recognize the abuse experiences and feel confused. Also women are usually portrayed as victims and as being passive, innocent, and sexually submissive. Like in the case of female criminals, women child sex abusers are more likely than the men to receive less jail time because their personal backgrounds or family situations are considered. A study using a sample of 138,000 offenders arrested for a sexual offence in New York State from 1986 to 2005 showed that Offender gender did, significantly reduce the likelihood of incarceration for offenders convicted of sexual offences. Another research showed that a range of mitigating factors such as mental health problems, substance abuse, and personal experiences of abuse are brought into play when women who offend against children are brought to trial. This is reflected in sentencing comments made by judges and in the sanctions imposed on the offenders, and as a result female offenders are treated differently to male are biased. In an analysis of 29 newspaper articles published in Australian dailies, it was shown that male sexual offenders were strongly criticized in media reports, whereas female sexual offenders were usually described in a more sympathetic way. Furthermore, the articles on female child sexual offenders usually contain excuses to justify or lessen the seriousness of the women’s abusive behavior. All these affect society’s awareness of sexual offences on children committed by women and end up affecting judgments and decisions of the legal systems.

Conclusion

Women are not seen as likely to commit sexual offences due to which cases of child sexual offences are underreported and often victims themselves are unable to and afraid to come forward.

Feminist Jurisprudence has depicted women as sufferers and victims of sexual offences, needing protection. This has whitewashed society making female sexual offenders seem like a taboo. Also the arguments of feminist jurisprudence that the experiences of women must be taken into account affects judgments as they look into difficulties with intimate relationship, male dependence issues, depression, loneliness and anger that the women might have had at the time of offending.

In India, women are seen as the foundation stone of the family. They are considered to be the prime caretakers of the family and are supposed to provide emotional support to their children. This causes judges to be lenient in giving sentences to women in sexual offences against children as well as other crimes.

Awareness that women are also capable of sexually abusing children should be brought about. There should be uniformity in deciding sexual offences and gender should not be a factor in deciding sentence or conviction.