By Priyanka Sham Bhat, Jindal Global Law School
“Editor’s Note: The issue of death penalty for juvenile offenders invites fierce debate and varied opinions. While some say that juveniles are incapable of understanding the consequences of their acts, others insist that the very fact that they have committed a heinous crime, points to their level of maturity. This paper seeks to examine these contradictory opinions in light of three cases across different jurisdictions. It also considers the role that the media has in shaping public opinion in these cases, and whether public outrage can affect the sentence that is awarded to the juvenile offender. The law relating to punishment of juveniles for crimes like murder has been discussed; and in light of this analysis, a solution has been suggested.”
Concerns about juvenile murderers and the punishment for them were articulated more than ever after the verdict of the Delhi Gang Rape was announced by the Delhi Court, in India. The juvenile who was convicted for murder as well as rape was given the maximum sentence that can be imposed on a juvenile – three years in a reformatory. The same concern was raised in England and Wales after the Bulger case which has been discussed below to support the arguments made.
The Bulger Case
On 12 February 1993, in Liverpool, two ten-year-old boys – Robert Thompson and Jon Venables, abducted a helpless two-year-old, James Bulger, from the Strand shopping centre. The two boys then took Bulger to an isolated railway line where they beat him to death with bricks and an iron bar, leaving his partially stripped body on the tracks to be severed late by a train. The boys were both formally charged with murder on the evening of 20 February.
The first appearance the boys made at the South Sefton Magistrates court, a couple of days later, was marked by mob violence as a crown of hundreds showed up to condemn the accused. The boys were assessed by psychiatrists but only to determine if they were mature enough to be tried. They were kept in secure custody for nine months while they awaited trial. The boys were not given psychological treatment of any sort during this time period.
The trial judge, Justice Morland, set the minimum term to be served before parole can be considered, at eight years. The then Lord Chief Justice, Lord Taylor, increased the it to ten years in December 1993. Later, in July 1994, the Home Secretary, Michael Howard, raised it again to fifteen years taking into account ‘the judicial recommendations as well as all other relevant factors including the circumstances of the case, public concern about the case and the need to maintain public confidence in the criminal justice system’. This was because Howard had received a petition with 2,78,300 signatures that demanded that the two boys never be released under any circumstances.
However, in 1997, the English Court of Appeal and a Majority in the House of Lords quashed the Home Secretary’s decision on the grounds that a government minister should be barred from deciding sentences. The European Court of Human Rights later ruled that Thompson and Venables did not get a fair trial and that it was unlawful for government ministers to set the minimum term to be served, as it is a judicial function. No decision about the tariff was made until 26 October 2000 when Lord Chief Justice Woolf set it to expire on 21 February 2001, reflecting the initial eight years set by the trial judge.
The concern catalysed in Bulger Case shaped the Criminal justice and Public Order Act, 1994. It lowered the age at which a child could receive an indeterminate sentence from 14 years to 10 years. It doubled from one year to two years as the maximum sentence in a young offenders’ institution for 15-17 year olds, and created ‘Secure Training Orders’ to make it easier to lock up persistent 12-14 year old juvenile offenders in privately run ‘Secure training Centres’. [i]
The Silje Redergard Case
On 15 October 1994, in Norway’s third largest city of Trondheim, three six-year-old boys killed five-year-old Silje Marie Redergard while they were playing together. The boys took turns to hit and kick her, beat her with stones and, stomp on her. They left her unconscious in the frozen mud, where she died of hypothermia. As the boys were well below the age of criminal prosecution, which is 15 years of age, in Norway, none of the boys were either prosecuted or punished in any way.
There was no mass outpour of anger or outrage from the family, the community, or the press. There were no cries for vigilante justice, and there was no political manoeuvring by any party’s politicians to politicise the incident. Although the case received substantial press coverage, the bulk of it appeared during the first week of the case. The murder of Silje was constructed in the press as a tragic accident, a terrible aberration. It was seen as a non-criminal act in every sense. It was seen as an act perpetrated by innocents on the innocent.
All those involved, from the lead police investigator to the mother of the victim, believed condemnatory punishment was not the right way to go about the situation. They felt that the best course of action would be to try immediately to reintegrate the children back into the community and to do everything possible to avoid stigmatizing them. [ii]
Delhi Gang Rape Case
This case involved the brutal gang rape of a 23-year-old physiotherapy intern in Delhi. The woman and her male companion were heading home on the night of 16 December 2012. Since their preferred choice of transport – autos – were reluctant to drive them to their required destination they boarded an off-duty charter bus. There were six other persons on the bus including the bus driver. Of the six men, one was still a juvenile. He was around six months short of his eighteenth birthday.
The male companion was knocked unconscious with an iron rod after being beaten and gagged. The men then proceeded to beat and rape the woman. Added to the gang rape, the woman was penetrated with an iron rod. The two victims were then thrown off the bus, onto the road, devoid of their clothes.The companion survived, however, after two weeks of intensive care in a hospital in Delhi, and then in Singapore, the young woman passed away.
Section 300 of the Indian Penal Code states –
“Murder.– Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.” [iii]
Therefore, all six offenders were charged with rape and murder, since they all had the mental maturity to know that bodily injury they caused the woman would lead to her death. Medical reports later stated that the young woman had suffered serious injuries to her abdomen, intestines and genitals. The charge sheet stated that the juvenile subjected the 23-year-old woman to sexual abuse twice, once when she was unconscious. He then went on to extract her intestine with his bare hands and suggested she be thrown off the bus along with the companion.
Since he was six months away from his eighteenth birthday according to his school leaving certificate, on the basis of which the police treated him, the juvenile offender walked away with a sentence of three years in a reformatory home which is the maximum punishment under the law governing minors. The eight months he had already spent in custody was deducted from the sentence. Keeping with the juvenile protection laws of India, the name of the juvenile murder was not revealed to the public. [iv]
Explaining the Difference
There are several explanations for the stark contrast in the responses to the Bulger and the Redergard cases. One difference in the two cases was the age of the killers. One argument states that since the age of Silje’s murderers were only six years old, this made the intense response that England gave to the ten-year old offenders less likely. This is because, most people would consider ten-year-olds to be at least somewhat more culpable for their acts than six-year-olds could possibly be. In the case of the Delhi gang rape, however, offender barely came under the definition of juvenile. This sparked demands to lower the age of juvenility to 16 from 18.
There is also a difference in the Bugler case and the Delhi gang-rape case. The reaction of the public actually affected the Bulger sentence, where as it didn’t affect the sentence. The volatile public, press and political reactions to the murder of James Bulger were strongly influenced by tabloid newspapers struggling to attract and retain consumers in a media market that is probably unprecedented in its competitiveness. A continuing tendency on the part of English politicians to defer to the media, and what is loosely conceived as public opinion, helped these strong media forces retain their powerful role in shaping political and public agenda.
Mental Maturity of the Juvenile
Developmental paediatrician Dr. Leena Deshpande says that it’s simply not possible that a juvenile is incapable of understanding what he is doing. ‘A normal child’s thoughts usually become more organised in the 11-16 years phase. By the time he/she reaches the age of 16, the person is perfectly capable of understanding the ramifications of their actions and what they’re doing,’ she says. So from a medical and psychological point of view, 16 is the age where a person reaches a level of maturity. Dr Deshpande also adds that considering the current social climate and the things children are being exposed to, more and more children are behaving and talking like adults; and there is a need to re-think the juvenile age.
The Women and Child (WCD) Ministry has taken the view that young adults in the 16-18 age group shouldn’t be protected by the Juvenile Justice Act (JJA). There is an increasing trend of offenders arrested for crimes like gang-rape and murder seeking lower punishments on the plea that they have not yet reached 18 years of age. However, Amod Kanth, founder member of child rights NGO ‘Prayas’ said, “Rehabilitation and reform is the aim of the Juvenile Justice Act. Such a knee-jerk reaction based on one single incident will have dangerous consequence on lakhs of other juveniles.”[v]
The punishment for juvenile murderers is different in different countries based on their laws. The laws of United Kingdom in the case of juvenile murders and sexual offenders prescribe that a person under the age of 17 years (the age of mental maturity in the United Kingdom) can be tried as an adult in the case of serious offences, especially if the mental maturity of the offender can be established. This is the case in several developed countries like the United States of America and France. On the other hand, countries that follow the Sharia law do not take into consideration the age of the juvenile murder. They treat the juvenile as an adult regardless of the mental maturity and sentence him/her to death. [vi]
Most countries around the world do not treat juvenile offenders the same way they treat adult offenders. This is because children below a certain age – that differs from country to country – are said to not have the mental maturity to fully understand the consequences of what they are doing. It is considered premature, excessive and unfair to sentence the juvenile to imprisonment without parole as the juvenile may very well be rehabilitated. Since the age for mental maturity cannot be determined accurately, several countries have framed their laws so that in cases of extremely serious offences committed by juveniles they can still be tried as adults.
Depending on how the laws of the country are framed and the role the media plays, the public opinion becomes an important factor in deciding the sentence for the juvenile. The most effective way it the Norwegian way; however, not all communities are developed. Many communities would want the deaths of their loved ones avenged and the only way to achieve that, while maintaining law and order, is to impose a stringent punishment. The question is whether the juvenile should be penalised or whether he should be rehabilitated. The answer to the question lies in where the crime has been committed, the perceived maturity of the juvenile in that community, and the public opinion.
Edited by Kudrat Agrawal
[i] Children who kill children: 6 high-profile cases, CBC World News, http://www.cbc.ca/news/world/children-who-kill-children-6-high-profile-cases-1.1322603.
[ii] DAVID A GREEN, WHEN CHILDREN KILL CHILDREN, 2008, OXFORD UNIVERSITY PRESS INC, NEW YORK.
[iii] Indian Penal Code, Section 300.
[iv] Delhi rape: juvenile raped woman twice and ripped off her intestine, Hindustan Times, Jatin Anand, http://www.hindustantimes.com/india-news/chunk-ht-ui-indiasectionpage-delhigangrape/delhi-rape-juvenile-raped-woman-twice-and-ripped-off-her-intestine/article1-984188.aspx.
[v] Will juvenile rapists and murderers be tried as adults?, Nirmalya Dutta, http://health.india.com/news/will-juvenile-rapists-and-murderers-be-tried-as-adults/.
[vi] Iran says juvenile killers still face gallows, Google News, http://www.google.com/hostednews/afp/article/ALeqM5jBsM3neWwt1adabXenyexZWoagyw.