The Author, Umang Arya is a final year law student at the National Law School of India University (NLSIU), Bangalore.
Introduction
Society needs to accept the sexuality of adolescents. In the process of growing up from child to adult, an adolescent gathers a lot of information, starts taking decisions that involve sexual decisions as well. The puritanical and paternal attitude of dismissing sexuality has done a great deal of harm to society.
This attitude is perfectly represented in the Protection of Children from Sexual Offences Act, 2012 ("POCSO"). The law does not recognize the evolving capacities of adolescents as it strictly lays down the definition of ‘child’ to be any person below the age of 18 years and it doesn’t recognize consent given by such person. Therefore, in effect, any consensual sexual relationship between two adolescents, howsoever natural it may be, is a criminal act liable to be punished under strict provisions of POCSO.
This post aims to argue that in the name of the duty of the state to protect adolescents from exploitation by adults, the state must not neglect the need of respecting and recognizing the evolving capacities of adolescents.
What is the Age of consent?
The Age of consent varies across jurisdictions and also differs as per the activity. For instance, for driving, it is 18 years; for voting, it is 18; for marrying, a boy needs to be 21 while a girl needs to be 18; for having sex the age is 18 years; for drinking alcohol, the age varies across the states[1] Further, while driving age in India is 18 years, in the USA, it is 16 years. Thus, we see that there is also variation across jurisdictions.
Thus, it can be understood as the age at which the law recognizes the individual to have acquired the agency and capacity to reason to make certain decisions and exercise certain rights. However, there exist vast differences between the legal age of consent and the actual age at which a person really acquires the capacity to consent and reason.[2]
As per the United Nations Committee on Rights of Child ("UNCRC"), ‘child’ is defined as a person below the age of 18 years unless the domestic law of the nation has defined it differently.[3] Since the UNCRC provides for variation across jurisdictions to occur, there have been variations across countries as to when a person can be said to have turned from child to adult. For example, in India it is 18 years, in the USA it is 18 and in Mexico, it is merely 12 years. While variation from the suggested age of UNCRC has been justified in the language of variations in geography, psychology, culture, society, etc., but the truth remains that the law has not been able to do justification to this aspect. Every strict age set up by the law in this regard tends to have some problems. This is because the transformation of a child, who is immature and lacks reasoning power to take decisions, to an adult with agency and reasoning power, is not a one-time event. It is not that at the age of 18 years, suddenly the person turns into an adult and all the reasoning powers and agency just come to him.[4] The reality is that this is a gradual process and starts early in the adolescent stage and continues until after the age of 18 even. This concept has also been recognized by UNCRC.
Concept of evolving capacity
In its General Comment no. 7 on ‘Implementing Child Rights in Early Childhood’, the Committee accepts that children go through a process of maturation, and in this process, they learn continuously.[5] This continuous process, then, eventually leads them to acquire competencies that help them in the future when they turn into adults. The role of parents also acquires importance in this stage as they should help the adolescents by guiding them but not dictating them. The parents should accept that adolescents are gradually acquiring the capacity to reason and taking decisions. Therefore they must only guide and help them arrive at their own decisions. Furthermore, studies show that in this age of digital revolution when children are exposed to adult material and information at an early age, then the beginning of this process has also started earlier now. The UNCRC General Comment no. 12 (Right of the Child to be Heard) also recognizes the right of the adolescents to make decisions and the duty of parents to act as a catalyst in helping and guiding the adolescents in arriving at decisions and gradually changing their role from the guide to having ‘exchange on equal footing’.[6]
State’s duty to balance the evolving capacity of adolescents and protecting them from exploitation
When a state is determining the age of consent it basically should try to balance two concepts – the evolving capacity of adolescents and the duty of the state to protect them from exploitation. On one hand, the state needs to give recognition to adolescents’ evolving capacities, and on other hand, it must also remain steadfast in protecting them from exploitation by adults. Article 3 of UNCRC mandates that the State must try to achieve this delicate balance and harmony between the two principles. Also, the UNCRC has observed in its General Comment 20 that the state parties must ensure that the aim of protecting the children must balance with the realization of evolving capacities thereof when deciding an acceptable minimum age for sexual consent. In para 40 of the General Comment, the Committee notes that States parties must eschew from criminalizing the non-exploitative and factually consensual sexual relations between adolescents of similar ages.
Apart from international conventions, some judgments from Africa can also be beneficially quoted. Constitutional Court of South Africa in Teddy Bear Clinic v Minister of Justice and Constitutional Development[7] held a law to be unconstitutional which criminalized consensual sexual conduct between adolescents from 12 to 16 years. The Court held that criminalization of sexual conduct between consenting adolescents is an encroachment upon the child’s right to privacy, dignity, and his/her best interest. By holding the law unconstitutional the court tried to give recognition to the evolving capacity concept of the adolescents.
In the case of State v B Masuku[8], the High Court of Zimbabwe was seized with the issue of one 17-year-old boy who was charged with having consensual sexual relations with a 15-year-old girl. The Court recognized the goals of the legislature in criminalizing consensual sexual relations were protecting adolescents from sexual predation; protect them from harms of Sexually Transmitted Diseases (STDs), and discouraging early sexual adventures. The Court held that society cannot ignore the reality that adolescents engage in consensual sexual relations. It observed that criminalizing was not the best way to achieve the abovementioned goals. It observed that instead, the society should try to increase access to contraceptive protection for adolescents and further increase sexual health education among adolescents – boys and girls both.
What is the Law regarding the age of consent at present in India?
The age of consent for sexual relations is governed by various laws like Indian Penal Code (IPC), Prohibition of Child Marriage Act 2006 (PCMA), and POCSO.
As per Section 375 of IPC, if a man commits any of the mentioned acts in clauses (a) to (d) with or without consent of a woman when she is below 18 years of age, then it is ‘rape’. The section, however, has maintained an exception for marital rape which is not under the category of ‘rape’. Prior to the judgment of the Supreme Court in Independent Thought v Union of India[9], the exception was that if a man has sexual relations with his wife, who is not below 15 years of age, then that is not rape. In this judgment, the court removed this anomaly and held that the age would be 18 years for this exception as well. So, now the marital rape exception is only for women above 18 years of age.
As per PCMA, a male below 21 years of age, and a woman below 18 years of age would be considered children.[10] Therefore, any marriage between them would be considered voidable at the option of either party.[11]
As per POCSO, a person below 18 years of age is considered a child. Any sexual relation with him/her by either a ‘child’ or an adult with or without the former’s consent would be considered offence as per this Act. The law doesn’t recognize the right to sexuality of adolescents.
In view of different laws applicable, a genuine question may arise about which law is applicable. The answer lies in Section 42A of the POCSO which came in 2012 - later than the other two acts.[12] This is an overriding section. It says that any contrary provision existing in any law for the time being in force would be overridden by the provision in POCSO which the other law seems to be in contravention.
That means, for purpose of sexual offences with children, the age of consent would be considered 18 years only. This leads, however, to a bizarre situation. Though a male below 21 and a female below 18 can marry and have a voidable marriage they can’t have sexual relations until they are 18 years lest they might be charged under POCSO. In the report ‘Why Girls Run Away to Marry – Adolescent Realities and Socio-Legal Responses in India’, Madhu Mehra and Amrita Nandy argue that this provision of POCSO along with PCMA is used by the parents and society to prevent adolescents from marrying whom they love if such choice is not as per their convenience and reputation.[13] The report tells that most of the cases wherein PCMA and POCSO are used together are invoked by parents and not by adolescent girl or boy. This shows that the law instead of being used for the protection of adolescents from exploitation (which is the major aim of law); it is being used for their exploitation by disgruntled parents.
The problem with the present law is that it fails to accept the social realities of adolescents that they inevitably engage in sexual explorations. The law tends to take a prudish stance of denying the sexuality of adolescents and fails to understand that in the process of transformation from child to adult, the stage of adolescence essentially involves taking decisions regarding sexuality and exploration thereof.[14] The harmful consequence of this stance of law manifests in the criminalization of sexual acts of adolescents who engage in such acts with consent.
In Teddy bear Clinic v Minister of Justice and Constitutional Development[15] the Constitutional Court of South Africa recognized the fact that in the adolescent age the adolescents engage in sexual activities inevitably and their intellectual and reasoning capacities evolve continuously. The court held the section unconstitutional which criminalized sexual conduct among adolescents. The court reasoned that while the aim of the legislature in criminalizing sexual conduct among adolescents was good - to prevent their exploitation and prevent them from making wrong choices - the side effects of such parenteral attitude are grave. The court noted that side effects include:
- preventing children from seeking and professionals from providing necessary medical and sexual health care to vulnerable adolescents, thus increasing the risk of prolonged mental trauma, disease and pregnancy
- has effects of silencing adolescents and causes them to undertake unhealthy behavior, uninformed and poor sexual choices.
- children are deemed incapable of making sexual choices but are held responsible for sexual acts
The problem in judicial recognition of ‘consent’
The law is clearly mandatory and rigorous in the regard to the age of consent. Anyone having sexual relations with a ‘child’ shall be held guilty under the provisions of POCSO. The judiciary has, rightfully, understood the shortcoming of the law. Therefore, various judicial decisions have asked the legislature to think about changing the age of consent. Moreover, certain courts have gone one step ahead and have sidestepped the mandatory law by recognizing the consent of adolescents.
In State v Akhilesh Harichandra[16], the 15-year-old girl escaped with the accused and married him. The girl had no grievances at all. The special court in Thane citing decisions by Bombay High Court acquitted the accused holding that since the girl was mature enough to understand the ramifications of marrying and having consensual sexual relations with the accused then there seems no reason for the court to intervene and punish the accused alone.
A study conducted by NLSIU-CCL in 2012[17] showed that judges in special courts tended to view those cases in which a romantic couple of adolescents had a marriage and there was pregnancy with more leniency than those cases in which there was a mere sexual relationship. This shows that the judges in overriding the legislative mandate were employing their own societal prejudices in convicting in some cases while acquitting in other cases citing the consent of adolescents. This shows that praising the judges in overriding the legislative mandate to accept the consent of adolescents can go in either way. It can be used by judges in really allowing adolescents to exercise their sexual autonomy and preventing their criminalization and it can go opposite also when just because there was pregnancy or marriage, the judges take a lenient view and acquit the accused without looking actually into the consent of victim child.
For instance, the consent of a child sometimes may be coerced by societal pressure, peer pressure, coercion, or lack of alternatives after being groomer or raped. There have been cases in special courts when the judges have wrongly interpreted some actions of victim child - like, passive inaction, going with the accused to some place, eloping with the accused, etc. - as showing positive consent of the child. The courts must be very careful in understanding consent.
This shows the importance of the legislature to understand the nuances of consent and amend the law in a fitting manner to allow adolescents their sexual autonomy.
Another important aspect with regard to the court’s treatment of the consent of the child is the age-gap between the child and the accused. If the accused and victim are both children as per POCSO or if the accused is adult, one good way to understand the consent and its effectiveness is to check the age-gap between them.[18] For instance, if the child is 17 years old and the accused is 19 years old, then although strictly speaking the 19 years old person has committed a crime, but if there has been consent, then the court can see that since the age gap is very less there are minimum chances of grooming and more chances of romantic relationship and exploration of sexuality. In such cases, courts may safely arrive that there has been consent of the child.
However, if the age gap is very wide, for instance, the victim is 8 years old and the accused is 17 years and 6 months old, then, of course, there is no scope of the consent and more scope of grooming in such cases, the court would be correct in applying the law strictly and punishing the accused.
In another case when the victim is 17 years and the accused is 40 years old, in such cases also there are more chances of grooming by accuses than chances of a romantic relationship. In such cases, the court must be very careful in interpreting the consent of the child.
How Should the Law be Changed?
India needs to strive to balance the twin principles of the evolving capacity of adolescents and the duty of the state to protect them from exploitation. While POCSO tries to follow rigorously the latter, it completely has forgotten the former. The law should be amended, therefore, to recognize the evolving capacity of adolescents.
There is a need to give autonomy to children to engage in and explore their sexuality in a manner that is safe. This can be achieved through school education and mass awareness. The society needs to shred its facile prudishness and engage with the adolescents about their sexuality and at the same time, ensure that they are protected from sexually exploitative adults who misuse the sexual exploration by adolescents by grooming and exploiting them.
This can be done through close-in-age exemptions or age-span provisions used in Canada and the USA.[19] As per this, in cases involving a consensual sexual relationship between adolescents below the age of consent, then if the age-gap between both is less then there should be no criminalization as it shows that there was less likelihood of grooming or sexual exploitation but if more age gap, then then the older may be punished as it shows more chances of grooming and sexual exploitation.
Apart from this, there has to be a note of caution about the judicial overreach by ignoring the legislative mandate. It has to be emphasized that separation of powers is part of the basic structure of the constitution and the courts' power doesn’t extend to making legislation when the law already exists on the same issue. The court can hold the law unconstitutional on the basis of its contravention with the constitution but it cannot merely sidestep the law. The hazard here is a wide discretion that the court gets once the written law is sidestepped.
Therefore, the logical and legal way out always is for the Parliament to amend the law (POCSO) to recognize the evolving capacity of adolescents.
Conclusion
While Article 3 of UNCRC mandates that state parties should try to achieve a balance between the evolving capacity of adolescents and the state’s duty to protect them from exploitation, the Indian law – POCSO – has predominantly focused on the latter. The law does not recognize the evolving capacity of adolescents. By fixing the age of consent mechanically at the age of 18 years, the legislature seems to have taken a prudish stance by completely denying the inevitable fact that adolescents are in the process of maturing and exploring themselves, and in this process, it is inevitable, that they will also make sexual choices.
By not recognizing the right of the sexuality of adolescents and mechanically fixing the age of consent at 18 years, the law leads to many harmful consequences for adolescents. Firstly, there is an inevitable criminalization of sexual relations between consensual adolescents. While the adolescents can perform a voidable marriage but they cannot have sexual relations with each other. Further, this criminalization also prevents adolescents from having recourse to medical advice and mental health professional help because of the fear of them being reported to the police. This leads them vulnerable to further exploitation by unprofessional and illegal elements of society. They become vulnerable to diseases, unwanted pregnancy, and trauma. Further, due to a pervasive silence about sexuality, adolescents do not get the right advice from parents, teachers, or medical professionals, instead, they have to take recourse to available information which is more often than not distorted, like pornographic material or peer group.
In the NSLIU-CCL report of 2012, many judgments of the special courts have been quoted which show that judges, in case of romantic relationship cases, tend to sidestep the mandatory law (POCSO) and recognize the capacity to consent of the victim girl. While on the face of it, it seems that judges have been doing good work, but such type of judicial overreach – when written law is made subservient – can be harmful also. For instance, once this is precedent that judges may sidestep POCSO and recognize consent, and then they essentially get the discretion. Such discretion then can be used either way in absence of some written guidelines. This, to my mind, is a dangerous path to follow.
The law must strive to achieve the balance sought for in Article 3 of UNCRC. The law must recognize that adolescents have sexual relations and must not criminalize the consensual sexual relations between adolescents. However, at the same time, the law must also be cognizant of the state’s duty to protect them from exploitation. In such a case, we can borrow close-in-age exemptions used in Canada and the USA.
References:
[1] Vaishna Roy, ‘How young is too young for consensual sex?’ (The Hindu, 4 October 2019) < https://www.thehindu.com/society/pocso/article29595371.ece> accessed on 21 September 2020.
[2] Shraddha Chaudhary, ‘Love, Consent and the POCSO’ in NLSIU-CCL ‘Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues’ (2018)
[3] Article 1, Convention on the Rights of the Child < https://www.ohchr.org/en/professionalinterest/pages/crc.aspx#:~:text=For%20the%20purposes%20of%20the,child%2C%20majority%20is%20attained%20earlier.> accessed on 21 September 2020.
[4] Terry Leahy, ‘Sex and the Age of Consent: The Ethical Issues’ (1996) THE INTERNATIONAL JOURNAL OF ANTHROPOLOGY 39, 27 < https://www.jstor.org/stable/23171750> accessed at 21 September 2020.
[5] UN Committee on the Rights of the Child (CRC), General Comment No. 7 (2005): Implementing Child Rights in Early Childhood < https://www.refworld.org/docid/460bc5a62.html> accessed on 21 September 2020.
[6] UN Committee on the Rights of the Child (CRC),General comment No. 12 (2009): The right of the child to be heard < https://www.refworld.org/docid/4ae562c52.html> accessed on 21 September 2020.
[7] 2014 (2) SA 168 (CC).
[8] [2015] ZWHHC 106, CRB B467/14 (High Court of Zimbabwe).
[9] (2107) 10 SCC 800.
[10] Section 2(a), Prohibition of Child Marriage Act, 2006.
[11] Section 3, Prohibition of Child Marriage Act, 2006.
[12] Section 42A, Protection of Children from Sexual Offences Act, 2012.
[13] https://www.thehindu.com/news/national/study-moots-lowering-the-age-of-consent/article29938622.ece
[14] Lina Mathew, ‘Right to Sexual Autonomy of Children – Implications of the UNCRC upon the Indian law on the Age of Consent’ (2019) IICJ&SD 8(2) < https://www.researchgate.net/publication/333522687_Right_to_Sexual_Autonomy_of_Children-Implications_of_the_UNCRC_upon_the_Indian_Law_on_the_Age_of_Consent> accessed on 21 September 2020.
[15] 2014 (2) SA 168 (CC).
[16] Spl. C. No. 165 of 2015 decided on 28-01-2016 (Thane).
[17] NLSIU-CCL ‘Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues’ (2018).
[18] Mathew (n 14).
[19] Chaudhary (n 2).
