Forensic Psychology is an ‘instrument’ to aid authorities in solving cases which involves the question of a crime being committed, but also the mental state of the perpetrator. Forensic Psychologists perform are “threat assessment for schools, child custody evaluations, competency evaluations of criminal defendants and of the elderly, counselling services to victims of crime, death notification procedures, screening and selection of law enforcement applicants, the assessment of post-traumatic stress disorder and the delivery and evaluation of intervention and treatment programs for juvenile and adult offenders”. The mental state of a person while committing an act is often the deciding factor when it is to be determined whether or not the act in question is an offence at all. In these cases, forensic psychology comes as a rescue.
The relation between one’s mental state, a criminal act and the concomitant punishment was essential in replacing the vengeance-based, old world criminal justice system with an enlightened one which is based on deterrence and reformation. Even though in several cases it has been proven beyond doubt that minors have not only committed a wrongful act but also had full knowledge of the wrongful and illegal nature of such an act. The mere fact that they have not attained maturity acts as a mitigating factor in trials of minors.
The Juvenile Justice System Vs Criminal Justice System
Before delving into the substantial role of ‘Forensic Psychology’ in determining the competency of adolescents to be tried as adults, it is instrumental to understand the key differences between the Juvenile Justice system and the Criminal Justice System. The first, and perhaps the most important, difference between the two systems is that the Juvenile Justice System does not ‘punish’ perpetrators for ‘crimes’, but rather punishes minors for the commission of what are termed as ‘delinquent acts’. The perpetrators of these acts are termed as ‘juvenile delinquents’ and not ‘criminals’.
Delinquent acts are further divided into two categories. The first category simply deals with those acts that would be termed as crimes had an adult committed them. There have been cases where juveniles have been tried as adults for commission of grave offences. The other category of delinquent acts deals with those which would not constitute an offence even if an adult had committed them. They are more commonly referred to as ‘status offences’, and include acts such as “underage drinking, skipping school, and violating a local curfew law” or even underage possession of tobacco and alcohol. Another key difference between the two Justice Systems is the purpose of conducting a trial and determining guilt. In the Criminal Justice System, the goal of the courts has largely been to punish the perpetrator of the crimes in question, whereas the goal of the Juvenile Justice System has been to facilitate the rehabilitation of the delinquents in order to serve minor’s best interest.Upon analysis of the two systems, it becomes apparent that the end goal that each of the systems seek to achieve are fundamentally very different. The Criminal Justice System seeks to punish offenders for the commission of crimes. Particularly, the Criminal Justice System is based on the assumption that a crime committed is not just against the victim in question but also to the larger moral fabric of society. However, the goals of the Juvenile Justice System is to rehabilitate the offender so as to facilitate integration of the offender into the society as a normal, functioning individual.
Forensic Psychology in the Juvenile Justice System
Forensic psychology plays a crucial role in understanding the mind of the offender in both justice systems. The culpability of a juvenile offender, even though the same elements of ‘mens rea’ are proven in court, seems to be mitigated simply on the basis of the fact that he/she is a minor. In a 2014 case, the Supreme Court of India held that “if it is heinous crime of serious nature then it has to be treated as a crime against the society and not against the individual alone”. This case reiterated a long standing legal principle, that crimes are to be taken as not just offences against the individual victim but against society as well. It is partly due to this understanding of crimes that it is the State, and not the victim, that prosecutes criminal offences.
‘Nirbhaya’ Case, 2012
It is severely problematic when the legal principle stands toothless in cases involving minors, even when the act in question is grave and heinous in nature. The landmark decision in the case of Ram Singh v. State of NCT of Delhi, more popularly known as the ‘Nirbhaya’ case, suffers from this very flaw in reasoning. The ‘Nirbhaya’ case rocked the moral fabric of society to such a large extent. In the ‘Nirbhaya’ case, where a young woman was brutally raped and violated, the courts convicted the juvenile offender of rape and murder and he was sentenced to three years in a reform facility. Justice Mishra recommended several amendments to the rape laws during the pendency of this case, one of which included lowering the age of juveniles to 16. This, however, is in violation of the UN Convention on the Rights of the Child which mandates all children under the age of 18 be treated equal. In the light of the amendment to the Juvenile Justice Act that has been legally implemented since 2016, it may be pertinent to look into the impact that such a proposal would have had on the trial of the juvenile in the ‘Nirbhaya’ case.
The standard that prevails with respect to juvenile cases is that a judge reserves the right to ‘waive’ off the protection that is enjoyed by juveniles if the case involves serious crimes or includes minors who have been in trouble before. The attitude of the State in juvenile cases has always been to protect the juvenile offender, and to offer rehabilitation instead of inflicting punishment. The principle of waiver exists within the legal system, to ensure that those offenders who commit grave and serious offences receive the same punishment that an adult may have received if he/she would have committed the offence. The gravity of the offence in the ‘Nirbhaya’ case was not contested by the judiciary when dealing with the case, yet the juvenile in the case, who was only a few months short of 18 years of age, received a punishment of three years in a reform institution. It was a jarring and bizarre decision that was criticized by many among the Indian populace.
Forensic psychologists play the most instrumental role in determining whether or not a juvenile can be tried as an adult in a given case. As a Forensic psychologist, one does not only evaluate whether the offender had purposeful intent to commit the crime, but also takes into account other factors which indicate the mental and environmental state of the offender.
In 1966, the US case Kent v. the United States established factors that would aid in determining whether or not juveniles should be tried in an adult court. Some of the factors to be taken into account while determining this were “the seriousness of the alleged offense; whether the alleged offence was committed in an aggressive, violent, premeditated or wilful manner”.
Furthermore, a forensic psychologist may also take into account other relevant factors, such as “ the maturity, emotional and developmental stage of the juvenile; attitude, environment, educational background, past criminal history, medical history, mental and overall physical health or disabilities, and the youths overall biopsychosocial and educational background”.
Mercedes Benz Case 2016
In contrast to the ‘Nirbhaya’ verdict, a more recent Indian case seemed to take into account all these various factors laid down in various US cases involving juvenile offenders. In 2016, in Civil Lines area, New Delhi, a juvenile was involved in a hit and run case that caused the death of a 32-year-old man. During the course of investigating the act, the police made a request to the Juvenile Justice Court to assess if the offender was capable of being tried as an adult. Although he was a juvenile at the time of commission of the offence, the courts did not let him avail the protection that the law affords a juvenile, on the basis that he was a repeat offender. In June 2016, the Police’s request to try the juvenile was granted and the juvenile was reprimanded to be tried as an adult in the Sessions Court. Here, the courts observed that the negligent and grave act by the juvenile was not due to any traumatic or adverse environmental factor, but due to ‘bad parenting that allowed a juvenile to drive without a license’. Keeping that in mind, the court decided to try the juvenile as an adult.
Role of a Forensic Psychologist
Although it is clear that the law provides an avenue for juveniles to be tried as adults, it is also a noteworthy trend that the courts in India are reluctant to adopt this particular method in most cases. While the adult offenders in the ‘Nirbhaya’ case received the death penalty, yet the courts refused to try the juvenile offender as an adult, even though the gravity and severity of the crime was unquestionable. The role of forensic psychologists is instrumental but not absolute in swaying the court’s intent on treating juveniles as adults.
The question that arises by virtue of this is, why the courts are reluctant to try juveniles (specifically adolescents) as adults, even when the case often warrants the waiving of juvenile protection? The answer can be found when one revisits the key difference between the Juvenile Justice System and the Criminal Justice System. Although the differences are perhaps archaic in nature, the essence which they represent continue to be true today.
The courts approach law as a body of knowledge and an area of practice that is ever evolving. Law is seen not just as a negative force (that punishes people for wrongful acts and restricts people’s behaviour) but is also seen as a positive force (that is meant to enable and facilitate each individual’s growth and development).
Not only is the aspirational quality of law inseparable from the practice of law, but the positive obligations that the law has is also just as instrumental to law as a growing body of knowledge. Laurence Lavrysen writes how “The European Convention on Human Rights has recognized the Positive Obligations to develop a legal framework to adequately protect the rights guaranteed by the European Convention on Human Rights”.
Forensic Psychology becomes all the more important when one realizes that it seeks to connect human behaviour with the body of law, with the understanding of law as an aspirational body of knowledge. Law is a force not just to regulate society, but to facilitate the growth of the society, and every member in it.
Keeping this understanding of law in mind, it is not difficult to understand that each case that the judiciary has to deal with forms part of a larger body of law that sets the tone of how society is to approach juvenile offenders. In a society such as India, it is perhaps prudent that the courts are reluctant to exercise their discretion and waive off protection guaranteed to juveniles in order to ensure that these individuals have a chance of becoming a responsible and respectable citizens of the country. Forensic psychologists play a critical role not just on a case to case basis, but also have a bearing on what the legal system’s approach to juveniles is going to be. To that effect, the Juvenile Justice Bill of 2014 recognizes the role played by psychologists, whereby it constituted a ‘Juvenile Justice Board’ and a ‘Child Welfare Committee’, and expressly stipulated that “No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for at least seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development”.
Therefore, it can be said that, forensic psychology plays an instrumental role in helping the courts transition from a hard line stance that is reluctant to try adolescents as adults, to a stance that gives more weight to the ‘mens rea’ and intent, as well as the situation and mental state of the juvenile delinquent. The courts have begun to recognize the need to try juveniles as adults, and forensic psychologists play an instrumental role in helping the court decide whether or not an adolescent juvenile delinquent deserves the same treatment as a criminal, or a chance to rehabilitate themselves and reintegrate into the society.
Written by Gautam Bhardwaj ( JGLS ’14)
Edited by Poulomi Bhadra and Prakriti Kapoor