Articles

AGE OF CONSENT V. SEXUAL AGENCY: A CRITICAL ANALYSIS OF THE POCSO ACT

-By Shravani Shendye* & Kinjal Sharma**

Indian law criminalises consensual sexual relations between adolescents belonging to the age group of sixteen to eighteen years. This legal issue regained focus when recently, the Madras High Court suggested decriminalising such consensual sexual relations via appropriate amendments to the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). This is the first time that the judiciary has taken a liberal approach in interpreting this law while taking into account the nuances between sexual agency and the age of consent. In this socio-legal context, this article aims to further contribute to the discourse on sexual and reproductive rights of adolescents in the country.

Section 2 of the POCSO Act defines a “child” as anyone under the age of eighteen years and considers a child incapable of giving informed consent. As a result, the law criminalises sexual intercourse between two adolescents or between an adolescent and an adult under the provisions of the POCSO Act. No exception is provided that legalises consensual sexual intercourse by adolescents, irrespective of the gender, marital status and age of the victim or the accused. However, the Report of The Committee on Rights of the Child notes that the age restriction while protecting adolescents must not lead to over-criminalization. Thus, there is a need to explore legal reforms to develop a just and equitable legislation for child protection in India to avoid such over-criminalisation.

CHALLENGES

A challenge that arises is that defining the age of consent as eighteen years compromises the sexual agency of adolescents. Statistics reveal that 19.7 million young Indians aged between 15-19 years, either married or unmarried, are sexually active. The National Family Health Survey showed that among adolescents who had sex before age 20, the average age at first sex for girls is 16.2 years and for boys 17.2 years. In such a scenario, criminalisation of consensual intercourse between adolescents curbs autonomy and scope for sexual experimentation in the sexually active years of adolescents. It reinforces the lack of freedom stemming from the stigma in the Indian society against pre-marital sexual relationships.

Such a legal provision is likely to become a weapon controlling the expression of sexuality while simultaneously augmenting parental power. This can be illustrated using the example of cases involving elopement marriages between adolescents.  When caste, class and religion intersect with the patriarchal norms of the Indian society, there emerge situations of marriages without the consent of the parents. In cases of a minor couple, or when a minor girl elopes with an older boy, when the parents file a complaint, the boy is culpable for rape despite the existing consent of the girl. This also opens floodgates for “false” elopement and rape cases filed by the parents or guardians against the boys with whom their adolescent daughters have run away. As per statistics, a third of rape cases in India are filed by parents against boys with whom their daughters have eloped. Thus, even though prima facie, these provisions aim to protect young women, in implication, they secure the rights of the parents or guardians over those of the young adults.

Moreover, the severity of the minimum period of imprisonment awarded when a minor boy is convicted has a detrimental impact on the lives of these young adolescents. At present, under Section 4 of the POCSO Act, a minimum 10 years of imprisonment is prescribed for the rape of a minor girl above sixteen years of age, despite the consensual nature of the act. Furthermore, keeping in mind the societal arrangement and prevalent patriarchy, such a law increases the exposure of young couples to harassment by the police. 

It is also to be noted here that the Juvenile Justice Act, 2015 after a judicial determination of the mental capacity of the accused, requires any such accused over the age of sixteen years to be tried as an adult for heinous crimes like rape. This brings forth the assumption of developed mental capacity to rape but not to consent to sexual acts, which might lead to conviction despite existing consent from the adolescents and irrespective of her opinion on the same. This is ironical as though the law does not recognise the capability of adolescents under eighteen years of age to consent to sexual intercourse, it considers adolescent boys capable of committing heinous crimes and thereby being subjected to rigorous punishment for the commission of rape.

Thus, the provision becomes problematic because in a rigidly stratified society, marred with prejudices against the marginalised minorities, young couples who violate parental diktat and caste or community norms are persecuted to maintain the social order. Therefore, there is a pressing need to re-evaluate the law and the age of consent taking into account the aforementioned concerns.

SCOPE FOR REFORMS

Legal reforms can be derived from comparative jurisdictions which have addressed this anomaly by reducing the age of consent for statutory rape, and have used age proximity clauses that protect young adults engaging in consensual sexual contact from the severity of the legal provisions.

A solution proposed in this regard is a reduction in the age of consent to sixteen years. Most countries require children to be between the age of fourteen to sixteen years to be able to give valid consent to sexual intercourse. Many young couples rush into marriage as it is commonly considered to be a sanction for having ‘legal’ sex making synonymous sexual intercourse and marriage. Hence, if the age of consent is lowered to sixteen but the age of marriage is kept at eighteen, it should not be a concern as it would decriminalize consensual sexual intercourse between young adults yet not abet child marriages.

Another suggestion is prescribing an age differential, like the laws in UK or the Romeo-and-Juliet laws in the US. Under such laws, where the age differential between the couple is either three or four years, penalty is reduced or eliminated when the sexual relations are consensual in nature. This would help in assessment of the balance of power in order to determine the validity of consent. The High Court of Madras suggested the age of consent to be fixed at sixteen years along with a provision that the partner should not be more than 5 years older. This differential should not only look at the age gap but the power differential, arising out of patriarchy and existing hierarchies. This would also be instrumental in ensuring that impressionable minds are not taken advantage of.

Moreover, it is important that while trying cases, the judges adopt a liberal interpretation of this social welfare statute. A realism-based approach should be adopted that takes into account the realities of the Indian society where young adolescents are sexually experimenting and facing prosecution despite participating in consensual sexual intercourse. The law for unmarried adolescent partners having sexual relations can draw inspiration from the original Bill of the POCSO Act under which the consent of the minor was taken into consideration in cases of sexual assault or penetrative sexual assault of a minor between sixteen and eighteen years of age. Reference can also be drawn from the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, whichwhile defining a child as any person below the age of eighteen years, criminalises intentional sexual intercourse if non-consensual.

Taking everything into account, the most important step that is necessary is to increase societal awareness about sexual intercourse, the meaning of consent and the available legal recourse in case of any violations. For this, efficacious and holistic sex education must be imparted to both parents and children about sexual contact and its implications. It is pertinent to normalise the discourse on safe and consensual sexual intercourse within households and society at large. This will help in raising awareness, stimulating discussions and improving understanding of the consequences of indulging in sexual activities. The criminalisation of consensual intercourse does not serve this purpose. Instead, it curbs autonomy and scope for experimentation in the sexually active years of adolescents. Thus, this grey area of the POCSO Act,needs urgent reform to prevent misconceived criminalisation of unmarried partners participating in consensual sexual activities as well as young married couples who elope to escape parental and societal persecution.

The author* and the co-author** are 3rd year students at NALSAR University of Law, Hyderabad.

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