Madras HC's suggestion on excluding consensual sex between people older than 16 from POCSO Act reflects ground reality
The suggestion of the Madras High Court with respect to the POCSO Act acknowledges the vast reality of sexual relationships amongst young persons in India.
The Madras HC has noted the increasing number of teenagers and young adults unwittingly coming under the radar of child sexual abuse laws for engaging in consensual sexual acts.
Protectionary provisions drafted to protect children from sexual predators and child sexual exploitation are increasingly being used to penalise consensual sexual relationships amongst adolescents.
These laws, enacted for the protection of children, betray a paternalistic approach.
Instead of criminalising adolescents and young persons, the focus must instead be on ensuring that they are able to navigate their exploratory period in a safe and informed manner.
The Madras High Court in a recent judgment has noted the increasing number of teenagers and young adults unwittingly coming under the radar of child sexual abuse laws for engaging in consensual sexual acts. The High Court had occasion to look into a case of a consensual sexual relationship between a minor girl aged 17 years and a young man who eloped and eventually got married. When the girl’s family discovered their relationship, the boy was charged with kidnapping under the Indian Penal Code and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The young man was tried and sentenced by a Special Court under the POCSO Act to 10 years of rigorous imprisonment.
The Madras High Court's decision turned down the conviction for lack of evidence and also proceeded to suggest that, in consideration of ground realities, the age of consent should be brought down to 16 years. The court further opined that an exception to statutory rape should be created where the offender is not more than five years older to her in order to ensure that “the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and has crossed the age of presumable infatuation or innocence.”
The recommendation of the Madras High Court comes in less than two years of the Supreme Court’s decision in Independent Thought v. Union of India where the court ruled that the POCSO Act’s provisions would also apply in case of marital relationships and marriage would not be a defence to charges under the POCSO Act.
The POCSO Act was passed at a time when a specific statute to address child sexual abuse was critical. It made important strides in addressing the vacuum in law, most importantly the lack of any criminal framework to deal with sexual abuse against boys. The Act also introduced child-friendly methods of investigation, medical examination, and trial in child sexual abuse cases.
These protectionary provisions drafted to protect children from sexual predators and child sexual exploitation are increasingly being used to penalise consensual sexual relationships amongst adolescents or between an adolescent and an adult. Both the POCSO Act and the Indian Penal Code set the age of consent at 18 years and deem minors incapable of giving consent. Where two minors engage in a consensual sexual relationship, in a paradox, they stand both as victims and perpetrators vis-à-vis each other, although ground-level reality results in boys being overwhelmingly treated as perpetrators and girls as victims.
The punishment for having sex with a minor is minimum 10 years imprisonment under the POCSO Act and the mandatory minimum sentences under the law provides absolutely no discretion to judges to consider mitigating factors and impose a lesser sentence.
Read together with the Juvenile Justice (Care and Protection of Children) Act, 2015, which allows the trial of 16 and 17-year-old children as adults in respect of heinous offences, a child above 16 years can now be prosecuted and punished for engaging in consensual sex with a minor and be punished for a minimum 10 years in jail, which can extend to life imprisonment. Pursuant to the Criminal Law Amendment Act of 2018, for having sexual intercourse with a child younger than 16 years, the punishment is a minimum of 20 years imprisonment which may be extended to imprisonment for the remainder of the life of the offender.
These laws, enacted for the protection of children, betray a paternalistic approach under complete ignorance of the increasing sexual exploration among adolescents; a trend that is both healthy and part of the normal development of older children.
According to the National Family Health Survey (2015-16), more than one in four women (26.8 percent) aged 20 to 24 years in India were married off before the age of 18 years and 7.9 percent of 15-19 years old girls were mothers at the time of the survey. Consensual cases are also seen to clog courts meant to address cases of abuse.
A 5-state study conducted by the Centre for Child and the Law, National Law School of India University in the states of Delhi, Assam, Karnataka, Andhra Pradesh, and Maharashtra on the functioning of the Special Courts under the POCSO Act reveal that a significant number of cases under the POCSO Act are cases of consensual sexual relationships. The study revealed that cases in which the prosecutrix admitted to a relationship with the accused amounted to 21.2 percent in Andhra Pradesh, 15.6 percent in Assam, 23 percent in Delhi, 21.8 percent in Karnataka (in 3 districts), and 20.5 percent in Maharashtra.
Another study conducted by The Hindu on 600 cases of sexual assault in the state of Delhi in 2013 (on both minors and adults) showed that amongst the cases fully tried, 40 percent dealt with consensual sex typically involving elopement of young couples and criminal complaints filed by the girls’ parents who object to such a union.
Child marriage still enjoys a vast degree of social acceptance and elopements of young persons are frequent. In several cases of consensual sex, and more particularly where the victim and accused have married, the victim turns hostile and refuses to testify against the accused, leaving courts with no option but to acquit the offender. However, in a few cases where other evidence (such as where the relationship has ended in a pregnancy) is available, young men have been sentenced to long periods of imprisonment. The appeals before the high courts in several cases have been turned down where the judges have refused to set aside the conviction acknowledging the lack of legal discretion to do so. (See here, here, here, here)
Such legal provisions, apart from penalising adolescent sexuality, also prevent adolescents from accessing sexual and reproductive health services. The mandatory reporting provisions of the POCSO Act obligate all persons to report when they have the knowledge or reasons to suspect that a child has been sexually abused or is likely to be sexually abused. These provisions often hinder children from seeking critical services and information in relation to family planning, contraception, pregnancy or protection form sexually transmitted diseases, in the fear of inadvertently triggering the criminal justice system.
Apart from being outrageously unfair, these laws penalising consensual sexual relationships under the ambit of statutory rape laws also gravely violate India’s obligations under the United Nations Convention for the Rights of the Child (UNCRC). The instrument providing the primary international legal framework in respect of child rights does not view children only as a subject of protection but repeatedly recognises the developing and transitional status of childhood and emphasises the need to not only recognize the evolving capacities, and developing maturities but also mandates that state parties respect their autonomy and their need to make decisions that affect their lives.
The treaty body of the UNCRC, the Committee on the Rights of the Child has also addressed the concerns relating to the statutory rape laws around the world and has categorically stated that:
“States parties should take into account the need to balance protection and evolving capacities and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity.”
Balancing adolescent autonomy whilst ensuring protection of children from sexual exploitation is being grappled with world over. In the United States of America, age of consent is decided by the applicable states' laws and varies between 16-18 years. Sexual intercourse with a person below this age is considered statutory rape. To address the increasing number of adolescents and young persons being punished for consensual sex, states additionally enacted laws termed as ‘Romeo and Juliet laws’ which provide for a defence in such cases. Romeo and Juliet laws provide some degree of protection to offenders of statutory rape laws where the minor has consented to the sexual intercourse, and where the age difference between the minor and the alleged offender is less (in many states, the permissible age gap is set at three years).
The suggestion of the Madras High Court not only acknowledges the vast reality of sexual relationships amongst young persons in India, but also calls for law and policy makers to develop a better understanding of adolescent sexuality. The overly protectionist arm of the law fails to consider children’s developing autonomy and the normalcy of sexual maturity amongst teenagers. Instead of criminalising adolescents and young persons, the focus must instead be on ensuring that they are able to navigate this exploratory period in a safe and informed manner.
Shruthi Ramakrishnan is an independent legal researcher in the field of human rights. She has published extensively on child rights law and can be contacted at firstname.lastname@example.org
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