Rich Kids and Fast Cars: Re-aligning Perspectives on Protection and Mental Healthcare of Affluent Children in Conflict with Law

The December 16, 2012 incident of the violent sexual assault acts inflicted upon a young woman in New Delhi (subsequently known as the “Nirbhaya case”) generated an unprecedented and visceral wave of public anger, that as yet has not been forgotten. A repeated media narrative in that case of the 16-year-old perpetrator being the “most brutal” amongst the six accused ¹ particularly led to an intolerant attitude to child offenders, also pitting child rights against public (in this case, women’s) safety issues. ² The Nirbhaya case will also continue to be remembered because it changed the history of juvenile justice in India: shifting from erstwhile reformative approaches, it led us, in 2015, like some North American and European countries, to adopting more retributive approaches by introducing juvenile transfer laws. The Indian Parliament’s amendment to the Juvenile Justice (Care and Protection) 2015 and its introduction of Section 15, makes provisions for adolescents between 16 and 18 years, based on evaluations of the child’s maturity and capacity for committing the crime, to be tried in the adult criminal justice system for “heinous” offenses defined under the law. ³

Over a decade later, India, in recent weeks is in a similar state of public outrage—this time over a juvenile offense (hereafter referred to as the “Pune Porsche case”) in which a 17-year-old boy allegedly, and also under the influence of alcohol, crashed a luxury car into a motorcycle, killing two young people. ⁴ The tragic nature of the victim impact, perhaps even legitimately, invoked high levels of ire against the child, further intensified by the uninformed decisions of the concerned juvenile justice board member, and other family and systems’ actions entailing duplicity and corruption ⁵ —which together resulted in a travesty of justice. In such a context, the paradoxical tensions between child rights and protection, and public safety, are rendered increasingly complex due to the involvement of elements of social class, wealth and privilege—which, according to public perception (“should”) serve as key reasons for adolescents from such backgrounds to not engage in socially inappropriate behaviors. Thus, in a country filled with inequity and contradictions, where wealth and class invariably make way for power and privilege, the context of juvenile crime, may at least sometimes, be an exception—as reflected in the Pune Porsche case. In fact, there seems to be reverse discrimination, with public apathy to the cause of children in conflict with law, being exacerbated by the presence of affluence.

That said, and in full acknowledgement of the fact that mental health professionals also form part of the general public, and inevitably have emotional responses to the incident, it is also important in difficult times such as these, for them to exercise some degree of psychological detachment from reactions of the public. This is because such a detached and dispassionate view is imperative to maintaining a scientific and professional perspective, as required to assist children and families in the situation that the Pune Porsche teen currently finds himself; and indeed, as we subsequently discuss, it is such challenging and emotionally charged social situations, which, by throwing up contemporary issues in child mental health, necessitate professional mental health interventions, emergent from evidence-based practice.

Applying the Vulnerability and Mental Health Lens to Children in Conflict with law… Moving Beyond Socio-economic Stereotypes

Typically, discussions on child protection violations, particularly on neglect and abuse, tend to confine themselves to families from low socio-economic backgrounds, linking neglect to poverty.^6-8 However, contrary to general perception, children from affluent families also suffer from neglect and maltreatment, particularly emotional neglect; but because these adverse childhood experiences (ACEs) in their case may not be overt, in terms of appearing dirty or malnourished, may go unnoticed by child protection service providers,^9,10 also because it is challenging to recognize and respond to the impact of neglect on such children.^11-14

Affluence may be defined by wealth and income, including access to (increased) social, economic, and cultural capital, that serve to create categories of social class. ¹⁵ Interestingly, despite the view that adolescents from high socio-economic status (SES) groups have greater access to protective factors for mental health studies have shown similarities between adolescents at the two extreme ends of the socio-economic spectrum.^16,17 For instance, more externalizing problems and higher rates of depressive disorder are reported amongst adolescents from either low or high SES.^18,19 Similarly, contrary to the belief that socially disadvantaged areas are associated with increased harmful substance use, it has been found that “areas of affluence” may also socialize adolescents into consuming high levels of alcohol, and other substances such as cigarettes and cannabis. ²⁰ In fact, there is also evidence to the effect that adolescents from backgrounds of advantage are more likely engage in substance use than those from disadvantaged backgrounds—explained by factors such as differential effects of parental support and community belonging. ²¹

In continuation of the assumption that economic benefits act as protection from psychological dysfunction is unsupported by scientific evidence, studies show that growing up in affluence can also lead to certain psychosocial risks. Children from such backgrounds may have psychological disturbances relating to substance use, anxiety, and depression; they tend to be vulnerable to excessive parental pressure on achievement, whilst also experiencing isolation as these children feel that their parents as emotionally and physically unavailable, in ways similar to youth living in poverty.^22-26 Evidence has found that boys in affluent neighborhoods have higher levels of delinquency and girls in such neighborhoods report higher levels of anxiety and depression as compared to adolescents in middle-class neighborhoods. ²⁷

Relevant to discussions on adolescent (antisocial) behavior is that of assertiveness—also worth considering in the Pune Porsche case, in which the adolescent is reported to have been out with his friends, consuming alcohol and subsequently driving a car, again, with some of his friends in it. Evidence suggests that lower levels of assertiveness are found in adolescents from contexts of lack of parental support, of parental separation or divorce, and poor parent-adolescent relationships. ²⁸ Thus, parenting, essentially a process of interaction by caregivers with children, plays a pivotal role in how children live out their lives. ²⁹ In light of this, the type of role models that parents act as, in terms of the how they set values priorities for their child, and demonstrate these through their own behaviors and interactions with the world, also strongly influence children’s learnt behaviors. Consequently, in families where antisocial behaviors are normalized by the engagement of parents and (adult) family members in illegal activities, and also maintained over time by use of power and privilege, children are socialized to believe that such behaviors are legitimate, and may be engaged in. Thus, as Luthar and Latendresse pertinently point out, “Family wealth does not automatically confer either wisdom in parenting or equanimity of spirit.” ²⁶

For child protection and mental health service providers, in addition to the challenges of identifying child neglect in affluent families, is that of navigating the complex dynamics of power and privilege in intervening in such situations. ³⁰ Parents from such contexts make it challenging for helping systems to gain knowledge of families’ histories and functioning for assessing severity and chronicity of emotional neglect and other concerns, by resisting the requisite level of probing and questioning, and even resorting to the use of lawyers and solicitors to challenge the decisions of systems.^11,31 As a result, and also evidenced by the Pune Porsche case, parental non-compliance, including their lack of adherence to the prevalent laws, exacerbates the challenges for duly assisting an affected child.

Thus, while vulnerability is typically a concept applied to poor and marginalized communities (or children, in our discussion), there is a need to critically (re)examine notions of vulnerability, in order to better understand its applicability to the experiences of affluent communities (and children). ³² In this regard, a more insightful view of vulnerability would then enable us to perceive power and privilege, not only less judgmentally, but as forming serious pathways to vulnerability for children in affluent families. This is because families, particularly one or the other parents/caregivers, as in the Pune Porsche case, embody power and control, also expressed through access to wealth, privilege, including social capital,

Aside from an analysis of parental and familial factors and vulnerabilities, and in the interests of scientific integrity and equity that governs medical practice, including child mental health practice, there is of course a need to employ standard protocols to assess a child for mental health issues. In the Pune teen’s case, this would entail, like in any other child’s case to evaluate the child for mental health concerns, by obtaining a clinical history, that includes information on demographics (including family history), developmental trajectories, emotional and behavioral concerns, existing levels of functioning in various settings, schooling history, strengths, interests; such an assessment uses multiple sources of information, including from families as well as children themselves, and thus also includes observation of children’s mental states and behaviors. ³³ In the case of children with behavioral issues, and those in conflict with law, from privileged backgrounds, and given the evidence on their substance use, it would be useful to conduct subjective assessments that also consider the role of conspicuous consumption, power and prestige, and financial prudence, in the economic socialization of adolescents. ³⁴

Finally, all of the above mental health and vulnerability issues, like in any given case of a child in conflict with the law, or indeed any adolescent with behavioral issues, requires to be understood through a normative adolescent development lens. The life stage of adolescence is associated with increased freedom of choice, in which independent, healthy decision-making is a key issue. ³⁵ In the process of independent decision-making, however, adolescents also tend to engage in risk-taking behaviors, ³⁶ including substance use, high risk inter-personal and sexual behaviors. ³⁷ Furthermore, adolescence as a transitional stage is marked not only be socio- emotional developmental changes, but also by neuro-biological transformations that affect cognitive processes. ³⁸ Different from adult brain physiology, in the adolescent brain, the limbic system, which plays a vital role in controlling various emotional behaviors such as fear, anxiety, anger and pleasure, takes precedence over the as yet developing prefrontal cortex, that is responsible for cognitive and information processing. ³⁹ Consequently, adolescent judgement and decision-making is impaired as it is not assisted much by the rationalization and prudence of the prefrontal cortex, which is over-ridden by the impulsive and emotionally reactive limbic system.^40,41 It is against such normative and neurodevelopmental processes that adolescent risk behavior is characterized by; in combination with the erstwhile mentioned individual and family vulnerabilities, they render children at risk of behaviors that bring them into conflict with the law.

A Legal Perspective

In the Pune Porsche case, after initially registering an FIR against the minor boy under relevant sections of the Indian Penal Code, 1860 (the IPC) and the Motor Vehicles Act, 1988 (the MVA), including causing death by negligence and rash driving, the Police invoked additional sections, the most important of which was culpable homicide not amounting to murder (Note: In cases of culpable homicide not amounting to murder, the offender might either be awarded a sentence of life imprisonment or imprisonment for a term which may extend to ten years. However, there is no minimum sentence prescribed by the law) (section 304 IPC). ⁴ In all probability, given the severity of victim impact and the mounting public pressure thereof, the police have construed the section 304 IPC offense as a heinous offense, thereby moving an application before the Juvenile Justice Board (JJB), for the adolescent to be transferred, and tried in the adult criminal justice system, based on the implementation of a preliminary assessment under Section 15 of the Juvenile Justice Act 2015.^42,43

It is critical to understand, however, that culpable homicide not amounting to murder^a is a serious offense and not a heinous offense. Also, none of the other offenses, such as rash driving, qualify as heinous. Consequently, the Juvenile Justice legislation does not, in fact, allow for the adolescent in this case to be tried as an adult for this offense—and the insistence of law enforcement personnel on the need to consider a juvenile transfer in this instance therefore becomes a subversion of the rule of law. Additionally, adoption of retributive positions by law enforcement and media, and other systems and stakeholders, in the domains of protection and mental health also go against the guiding principles enshrined in the Juvenile Justice Act—namely those pertaining to equality and non-discrimination, presumption of innocence, positive measures, best interest of the child, non-stigmatizing semantics, and privacy and confidentiality ³ —and form the spirit of this law that was enacted essentially to distinguish between the needs and concerns of children versus that of adults.

Accountability, a fundamental concept that underpins much of criminal law, determines the conditions under which people are held responsible for crimes they commit. ⁴⁴ Along with due consideration to the rule of law, including the application of appropriate laws, when attempting to hold an individual accountable, there is also therefore the issue of how to hold a person, particularly a child, accountable. There is a distinction between being accountable for the wrong committed in the past and taking responsibility in the future. As opposed to conventional retributive justice approaches, restorative justice methods shifts the balance towards the latter. ⁴⁵ The Statement of Objects and Reasons of the Juvenile Justice Act, are strongly reflective of restorative justice approaches to children, without, in this regard, creating any distinction between children in need of care and protection and children in conflict with law. Indeed, the Act, makes adequate provisions for a child in conflict with law to account for his/her actions by accessing reformative services, including mental health support and therapy, for behavior transformation. ³ Indeed, it is through such reformative and rehabilitative measures that the tensions between child rights, protection and well-being, and public safety maybe reconciled.

That said, the Juvenile Justice Act also contains provisions that allow for parents and other eco-systems to be accountable, especially for actions that render children vulnerable. Section 75 on willful neglect of the child and Section 77 which makes punishable any act of giving or causing to be given, any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, have been invoked in the Pune Porsche case on the adolescent’s father, and on the bar owners/managers for aiding his problem behaviors. Similarly, the JJB Member who initially passed the bail order in haste, without due evaluation and understanding of the law and of (child and adolescent) psychosocial considerations, is currently being investigated by a committee under the state government, and his/her tenure can be terminated if found guilty of misuse of power. Similarly, the doctors who have been accused of swapping the adolescent’s blood sample may also be tried under Chapter XI of the IPC for a range of offenses pertaining to false evidence. In the light of the potential that the law offers for holding various stakeholders within the child’s eco-system responsible, the accountability for this tragic offense cannot be seen through a myopic lens, largely aimed at seeking retribution against the child—because the law mandates accountability in a restorative perspective for the child, at the same time ensuring that all stakeholders who have “failed” the child are also held accountable.

In the light of the above-discussed mental health and legal perspectives, which contradict much of the collective thinking in the country, it may be worthwhile to re-examine the Pune Porsche case, using alternative lenses, provided by the science of risk and vulnerability, as well as that of the rule of law. Could it perhaps be that underpinning the outrage in this case, and the wrath directed at an adolescent and his family, are notions that we as mental professionals (or child services and systems stakeholders) also tend to subscribe to—that affluence cannot but bring happiness, and that if affluent people are unhappy, they are simply spoilt and self-indulgent ²⁴ ? At any rate, the central, but disconcerting question, that confronts us in the situation at hand, is whether such views may be allowed a space in our professional consciousness and conscience—for, if they are, they also then permit us to shortsightedly and unfairly, scape-goat a child in need of care and protection, depriving him therefore of the mental health and legal assistance that he not only needs but also has a right to access.