Consensual sex and minors: Court wades into tricky terrain

“I am afraid, if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of state and no individual below 18 years can be allowed to have the pleasures associated with one’s body.” To hear a judge in an Indian court to spell out that the human body is not the property of the state and to speak up for “the pleasures associated with one’s body” is nothing short of astounding. Additional Sessions judge Dharmesh Sharma was ruling on a case under the Protection of Children from Sexual Offences (POCSO) Act. In this particular case Sharma was acquitting a 22-year-old man of charges of kidnapping and statutory rape of a 15-year-old whom he had later married. The court decided that the minor had on her own will gone with the man and got married at a temple in Kolkata and it didn’t want to impose the heavy hand of the state on their married life. Since no assault had taken place and the consent had not been obtained unlawfully, the court found that no offence had been committed under POCSO. The judge did exhort the state and the NGOs to create awareness about the challenges posed by early marriage but it still saw fit to not break up this one. [caption id=“attachment_1063949” align=“alignleft” width=“380”] Image used for representational purposes only. AFP[/caption] There is no one-size-fits-all solution where juveniles and sex is concerned. One person’s consensual affair could be another person’s sexual abuse because the competence of a minor to “consent” is itself a grey area. Both the police and organisations like the Delhi Commission of Women are steadfast in their opposition to the judgement. V K Tikko, member of the National Commission for Protection of Child Rights (NCPCR) told the Business Standard,“This will have a serious impact. On the contrary, the onus of proving rape will be on the victim. The traffickers bring children in the lure of employment and marriage. They rape and abandon them.” A retired Delhi High Court judge said the lower court could not set a precedent and if the victim is a minor it is automatically counted as rape. The judge will no doubt be accused of opening the floodgates of pedophilia, sex abuse and trafficking of minors. But he was also acknowledging something we all know but don’t readily admit. According to UNICEF over 36 percent of Indians are under 18. We would have to be really naïve to assume that just because the law says you cannot do it, no one under 18 is having sex. But in the eyes of the law, age is just a number with very little wiggle room when it comes to some things like sex, drinking and voting. Many countries have struggled with this issue when it comes to defining statutory rape. In Dixon v State in Georgia in the USA a court had to decide whether an 18-year-old high school football player should be charged with statutory rape for having sex with a 15-year-old female schoolmate. He was acquitted. On the other hand, Rachelle Gendron, 27, ironically a sex ed and health teacher in Massachusetts, was just indicted on rape charges for having sex with a 14-year-old male student. And that extends for same-sex relations as well. Even when laws don’t recognise same-sex relationships, they are happy to prosecute them under statutory rape laws. Kaitlyn Hunt, an 18-year-old high school cheerleader from Florida faces 15 years in jail for having sex with a 14-year-old girl after that girl’s parents pressed charges. She could be registered as a sex offender for life and lose her right to vote. Hunt’s supporters claim that the court needs to understand the difference between the letter of the law and the spirit of the law, the precise area where judge Sharma appears to be gingerly treading. Some states in the US take into account the age differential between the two parties. Hunt’s attorney lamented that had the incident occurred 108 days earlier — when Hunt was still 17 — the case would not even exist. Coincidentally this Indian ruling about minors and consensual sex comes at a time when the country is worked up about minors and rape. An editorial in The Telegraph points out that in the last decade, rape and abduction of women by juveniles has gone up 143 and 380 percent respectively. Without going into the question of whether the law should change its definition of juvenility, it poses another question: “When do Indian adults like to regard and treat, say, a 16-year-old as a child, and when does it become inconvenient to do so?” These are all knotty issues without easy answer-by-number solutions and a higher court may well overrule Justice Sharma. But minors and sex aside, it is still extraordinarily refreshing to hear of sex being talked about in the court in terms of pleasure, not procreation or as part of the obligations of a marital contract. Not that long ago, the Indian Supreme Court had to pull up the Karnataka High Court because of it verdict that had observed that “wife-beating is normal facet of married life”. A retired Supreme Court judge okayed a woman marrying her former rapist to save the family from public stigma. The Indian parliament in its overhaul of the rape laws had refused to even countenance the idea of marital rape because doing that had the “ the potential of destroying the institution of marriage” as if one surrenders all rights to one’s body upon crossing the marital threshold. In that context, Sessions judge Sharma’s judgement has ventured into a brave new world striking a blow for something almost taboo in our conversation – one’s own body viewed not just as something to be punished or protected but as a repository of pleasure.