by Samyak Sibasish
Over the last few days, we have seen much public angst over the widely publicized rape of a young girl on a bus in Delhi. One wonders to what extent will the protesting masses ride on emotion and sentiment and hold aloft nauseating pictures demanding public hanging, stoning or castration of rapists, without understanding the ground reality of the simmering issue. Creating a uniform new law or modifying an existing one to award harsh punishment to perpetrators of rape, is not at all a feasible solution. Most of the protestors are unaware of the simple statistic that one-third of rape cases in India are filed by parents against boys when their daughter exercises her sexual choice and elopes with him.
In this perspective, the issue of “Age of Consent”, (i.e. the age at which the law should allow children to engage in sexual acts) in the recently enacted Protection of Children from Sexual Offences Act, 2012 assumes a wider importance. Until recently the age of consent to sexual relation was 16, but amid much controversy and debate, the newly passed Act has increased it to 18 years. According to the legislation all individuals under the age of 18 are ‘children’ and engaging in sexual activity with such individuals is a punishable offence. One major criticism that can be leveled against the provision, after the raging debates and deliberations over rape laws in India, is that, such ‘false cases’ of alleged rape will only increase, as all youngsters who indulge in sexual activity are prone to harassment by their families, the police and the authorities. Apart from that, this new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent sex.
It is thus necessary to examine what role and up to what extent, does “age of consent” issue play, while dealing with laws relating to sexual offences.
It has always been a societal aim to regulate inappropriate sexual contact with children. Age of consent laws form a legislative latency period, sexuality held in abeyance until the specified age is reached. The emphasis of such laws is on setting a barrier to sexual conduct with children of a specific age. Fundamental to these age specific laws is the idea of consent. It is generally thought that it is morally and legally permissible to engage in sexual relations if the parties consent to do so. But that is not the case with minors. The very rationale behind age of consent laws is that minors are incapable of giving consent, let alone it being a valid one.
But is it true that minors are incapable of giving consent?
A person’s ability to consent to an act should be evaluated by reference to the mental capacities that are relevant to that decision and there is no reason to think that the relevant mental capacities of many minors are lower than the mental capacities of adults whom we regard as capable of giving morally transformative consent. Minors should have some say in what they do with their own bodies. They should be free to decide, as a matter of right, whether or not they want a sexual relationship. Even the British law accepts that older children have a developing competence to make autonomous decisions and that autonomy and competence doesn’t just appear on a given date in calendar. But the legislators in India have failed to realize that mental maturity and ability to consent is a continuous evolution process which starts right from the onset of puberty and reaches a near constant basic level in the age group of 16-18; we don’t flick our sexual switch to ‘on’ at 18; zoom from 0-60 on our eighteenth birthday and that individuals between the age group of 16-18 have nearly the same level of mental capacities. Equally faulty is the claim by the legislators that the recommendation to make consent “irrelevant” up to the age of 18 was in consonance with the United Nations Convention On The Rights Of The Child (UNCRC). For, nowhere does the UNCRC stipulate that the age of consent for sexual activities should be fixed at 18. This is borne out by the fact that an overwhelming majority of the countries, including advanced democracies, have adopted an age of consent that is below 18. The act in question takes no account of teenagers’ real lives and ignores people’s sexual development. In a social environment where teenagers are becoming increasingly aware about sexuality, the Act can have terrible consequences. It will criminalize hundreds of thousands of young people for normal, natural behavior. It would open floodgates for prosecution of the boys for offence of rape, on the basis of complaints by the parents of the girl, no matter the girl would have been the consenting party and the offer to have sexual intercourse may have come from her side. It may also indirectly promote illegal abortions endangering the life of the girl child in situations where pregnancy is not reported to the appropriate authorities fearing conviction of the girl child’s consensual partner.
What About Sexual Relations Between Married Minors?
Moreover the new legislation has added another chapter to the already wide subject of legal anomalies in India. In rural India where the problem of child marriage is rampant, sex between minors is obvious. Interestingly, while the Prohibition of Child Marriage Act, 2006 prohibits marriage below the age of 18 years for girls and 21 years for boys, it does not make a child marriage invalid or null and void unless either of the parties seeks an annulment. Now, after raising the age of sexual consent to 18 the legislators have clearly allowed sexual relationship between an underage wife and husband to be booked for a criminal act of sexual abuse. An otherwise legally married man can now thus be spending his heydays in detention. Even if the child marriage law is amended in future to automatically nullify a child marriage, young people will continue to enter into pre-marital sexual relationships. Coitus occurring after puberty, willingly undertaken by the youngsters, and representing the fulfillment of normal physiological need is very natural.
In addition to it, little thought appears to have been paid to the implications of contradicting clauses with the Indian Penal Code. How can the age of consent be both 16 and 18 in the same sexual context under two different laws? In its report tabled in Parliament in December, the standing committee addressed this critical question cursorily. All it said was: “Section 375 of IPC would operate in totally different circumstances when compared with provisions in clauses 3 and 7 of the present Bill.” This claim is far from true as one of the clauses in the legislation, clause 3 of the act, dealing with “penetrative sexual assault”, falls squarely under the ambit of Section 375 of IPC, with reference to cases where the victim is a female as rape covered under the said section of the IPC specifically deals with penetrative type of sexual abuse against females. This has created an atmosphere of uncertainty about the outcome in the event of occurrence of such instances.
It is clear that one of the most difficult issues for law is to strike “an appropriate balance between protecting children from sexual abuse and exploitation, on the one hand, and permitting the sexual expression of young persons as they proceed through adolescence into young adulthood, on the other.” But, in the excessive desire to protect their vulnerability, legislators could well be increasing their vulnerability. The present legislation is an example of this sort. It is a regressive and draconian law that tends to criminalize adolescent sex and prohibits sexual activity and expression on the part of teenagers. In the words of Additional session judge of a Delhi court, “the need is to correct the behavior and not punish it.” This can be achieved more effectively by improving the quality of sex education in the country. It has generally been observed world over that the societies which are much more open about these issues, where it is easier for children to talk about such issues to their parents, children tend to delay their first intercourse. The evidences show that the more you talk to young people about sex, the more sensible they are, and the more willing they are to delay.
(Samyak Sibasish is an Assistant Editor with the Journal of Indian Law and Society. A recently published paper in the Journal of Indian Law and Society also discusses this issue elaborately)