“Consensual sex among children is not going to be subject matter of investigation”
There is little point in crying oneself hoarse over an imagined calamity.
The Protection of Children against Sexual Offences Bill, 2011 (one would think the title of this extremely crucial bill was self-explanatory), contrary to what self-proclaimed champions of consensual sex between teenagers want others to believe, does not set out to criminalise teenage love.
Speaking to Firstpost, a senior government official who has closely followed the bill emphasized that it was for the protection of children (defined as under 18) from adults. The official, who didn’t want to be named, said the bill did not apply to consensual sex between minors.
Putting the issue sexual offences against children in perspective, the official quoting the national study on child abuse (2007) – which formed the ‘genesis of the bill’ – said that 38 per cent of children who were sexually abused were between 15-18 years. The sexual abuse in this age group was higher than in any other age category. (The study involving 12,447 children from 13 states was conducted by the ministry of women and child development).
Amod Kanth, a former police officer and founder of Prayas Juvenile Aid Centre described as ‘absurd’ debates over the bill’s alleged intention to criminalize consensual sex between minors. Kanth made a presentation on the bill to the Parliamentary Standing Committee, which recommended among other things that the ‘age of consent’ proviso be dropped.
“The proposed bill cannot be used against a child. It can be used against an adult. An adult having sex with a child will be deemed to be abusing the child. If both are less than 18, there can be no legal action taken. Action can only be taken if the child makes a complaint.”
Bear with the legalese for just one minute.
The bill talks about five categories of sexual offences against children – penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault and sexual harassment.
Only in two categories, an ‘age of consent’ proviso had been introduced in the original draft of the bill.
It stated that if the victim (child) of a ‘penetrative sexual assault’ or a ‘sexual assault’ was between 16 and 18, the onus would be on the child to prove that the consent was taken against his or her will or by violence or use of threat, intoxicants, fraud and so on.
The proviso essentially reduced the age of consent for only two categories of sexual assault, from 18 years to 16. It was never applied to the entire bill.
So the current brigade of doomsayers seem to be saying that for sexual harassment it is okay if the age of consent is 18, but for penetrative sexual assault and sexual assault (which are much graver in nature), consent age should be lowered to 16. Whatever.
For reasons unknown, the conclusion being drawn is that to remove ‘age of consent’ proviso from two places in the bill is to make consensual sex between two minors a crime.
Here is one reason why this conclusion is flawed: The crime as defined by the bill is sexual ‘assault’ not sexual ‘act’. To criminalise consensual sex, the act of sex itself will have to be made a crime. ‘Assault’ by definition under the Indian Penal Code (IPC) involves ‘criminal force’.
Therefore, unless a minor complains of sexual assault by another minor and there is evidence of such assault no action can be taken.
Perhaps Kanth, a former police officer, is best suited to respond to questions on the police and legal harassment that is being imagined by many child rights activists.
“Consensual sex among children is not going to be subject matter of investigation and no case can be registered. A case cannot be taken up unless the person who is assaulted complains.”
What if a third party, with the intention to harass, makes a complaint against two minors?
“Even then, the child will have to give a statement. If the child gives a statement that nobody assaulted me, then there is no assault,” says Kanth.
Can police take suo moto action against minors?
“No, there is no question of that.”
“IPC will change”
How did the ‘age of consent’ proviso come to be in the draft version of the bill. It was borrowed from rape law under the IPC which recognises the age of consent for a girl as 16.
Kanth explains. “The question of 16-18 arose in the earlier draft in the case of physical sexual assault of a child because the IPC makes a distinction between 16 and 18, which is totally outdated. IPC is changing. That law will also change.”
The Standing Committee report says that the age of consent proviso “would completely negate our legal commitments under United Nations Convention on the Rights of the Child and the Juvenile Justice Act.” In both enactments the declared age of the child is 18.
A crucial argument that is quoted in the Standing Committee report against the age of consent clause is that for children between 16 and 18 “it would invariably lead to cross-examination of a victim and would make the entire trial process central to the conduct of the victim rather than that of the accused.”
Pinki Virani, a national award winner for her groundbreaking book on child sex abuse in India Bitter Chocolate, questions the broader implication of reducing the age of consent for sexual offences while the Juvenile Justice Act – under which children in conflict with the law are dealt with – defines a child as under 18.
“Does this (referring to the ‘age of consent’ proviso in the bill) mean that the State is punishing them for other acts as juveniles (under the Juvenile Justice Act) and only for the act of sex they are adults?” she said.