When in 1891 Hari Mohan Maity, aged 35, was acquitted of charges of causing the death of his 10-year-old wife while forcing himself on her, the colonial government in India was compelled to push the age of consent from 10 to 12 years of age. The age of consent was later increased to 16 and remained so for decades, until, by virtue of The Protection of Children from Sexual Offences Act, 2012 (POCSO), it was raised to 18. An amendment was also made to the Indian Penal Code in 2013, which traditionally dictated the age of consent.
The law to prevent child sexual abuse and redress the victims/survivors of this abuse, came in response to the debate awakened by the ruling in Sakshi v. Union of India and Ors – a landmark case which sparked controversy due to its restricted interpretation of what acts constitute rape, even in cases involving children. POCSO removed any such ambiguity by bringing all sexual acts involving children into its ambit. It is also gender-neutral in naming a victim and perpetrator, thus, bringing in an ignored aspect in child sexual abuse narratives. Then, where did it go wrong?
Problems with Implementation
Age of consent deems sexual activity with persons below the set age as statutory rape, which POCSO has set at 18 years. POCSO prosecutes all forms of sexual expression from kissing, necking to penetrative sex.
However, the law in practice faces some unintended consequences, in relation to who it prosecutes and their ages. A study of 2,788 cases under POCSO across five states by the Centre for Child and the Law, NLSIU (CCL-NLSIU) revealed at least 20.5% of cases on average in which the girl was in a relationship with the perpetrator. HAQ: Centre for Child Rights’ research on Special Courts in Delhi found 35% cases (79 of 224 cases) were those of romantic relationships between the boy and the girl. Aarambh India (Prerna) in Mumbai worked on 260 cases where, in about 25% of them, the parties were involved in consensual sexual relationships – of which a large number were persons between 16-18 years. Partners for Law in Development’s (PLD) own ongoing study of 50 cases across district courts in Delhi also show that most cases of romantic relationships involve older adolescents between the ages of 15 to 18.
POCSO is also rarely used on its own in Courts. More often, it used with the offences of kidnapping, rape and offences under child marriage law. PLD’s study of 83 cases involving underage marriages corroborates this finding where, in 65% of cases, parents used the Prohibition of Child Marriage Act, 2006 against marriages initiated by their daughters. These two laws become a retributive tool for disapproving parents upon discovery of their children’s relationships or against the young couple eloping. In a few cases of POCSO, girls wishing to marry their partners, file complaints to force the question of marriage and do not pursue the case after a point.
The POCSO Act introduces a strict requirement of mandatorily reporting an offence and penalises all those who fail to do so with imprisonment or a fine. This stringent provision has drawn criticism from different stakeholders working with children such as medical health professionals like gynaecologists, psychologists and counsellors as well as from civil society stakeholders. The impact of this law has curtailed its intended use on two fronts – first, by forcing the hands of teachers, counsellors, other people who occupy positions of trust in the child’s circle to break confidentiality and report any abuse whether or not the child or their parents want to prosecute. This also breaks the cycle of trust for the child who may require care-centred responses in addressing the abuse and may further prevent the child from disclosing other instances. Second, the mandatory reporting requirement also removes use of discretion by services providers of a variety of sexual and reproductive health and services such as contraception, medical help for STIs, and abortions even when confronted with consensual sexual activity. Adolescents under the age of 18, who are sexually active, are precluded from accessing these services as they run the risk of being exposed to the criminal justice system.
The Medical Termination of Pregnancy Act, 1971 (MTP Act) requires girls under the age of 18 to obtain parental consent to seek abortion services. With the two laws, every teenage pregnancy then is liable to be reported as sexual abuse, impeding access to these services for girls who then may have to resort to unreliable means to terminate an unwanted pregnancy. In addition to this, state programmes on comprehensive sexuality education become constrained from providing safe and necessary information around sexual and reproductive health and rights and propagate abstinence-only approaches.
What Does Raising the Age of Consent Mean for Adolescents?
In conflating childhood with age-related minority, the law treats childhood as a uniform phase of being till suddenly at 18 an individual assumes total decision-making capacity. It ignores that childhood comprises several stages of development, especially adolescence which is a distinctive phase. The provisions of POCSO are intended to save children from exploitation and abuse. Their developmental abilities such as the ability to make decisions affecting their own livesare sidelined. Though gender-neutral in its letter, it acts to incarcerate boys by pegging them as perpetrators irrespective of context.
Further complicating matters is the fact that a disproportionate number of affected persons have a background of economic and social marginalisation. Adolescence, for many, is a time of romantic and sexual exploration but for young people who are economically and socially marginalised, limited opportunities, dropping out of school and early induction to ‘adult’ responsibilities like earning a livelihood or performing domestic chores, make for the distraction of sexual and romantic partnerships much more attractive. This, compounded with cultural stigma surrounding sexuality, especially expressions of it outside marriage, as well as casteism and gender segregation, hinders the ability to make better informed choices. Even when underage marriages do happen in the context of validating romantic partnerships, it is the same trend of elopements and self-arranged marriages where adolescents attempt to exercise their agency against social expectations. Legal interventions including POCSO further destabilise the situation and separate the girl (who, if not abandoned by her family, often refuses to return to it) from her partner and constrain her to a shelter home with little support. Pregnancy only exacerbates the vulnerability for the girl. Where unable to afford private medical care unlike those from more privileged settings, the girl depends on public health services that are unable to give sufficient attention and instead hold out for a settlement to be reached in the legal intervention, resulting in exposure to risks from delayed abortions or carrying the pregnancy to term with an unsupervised delivery, both often in unsafe conditions.
Rethinking Reliance on Statutory Rape to Address Child Sexual Abuse
The sole focus on the high prevalence of child sexual abuse, often by a person known to the child, and responses to address this in a law as ambitious as the POCSO ignores other ground realities. The need of the hour is to recognise adolescence as a transitioning period between childhood and adulthood replete with increasing physiological, cognitive, psychosexual and social changes and maturity. The World Health Organization notes that this transition period requires special attention given the exploration, experimentation and decision-making that takes place, and that policies that impact adolescents should reflect this. Thankfully, this is partially recognised by Adolescent-Friendly Health Clinics (AFHCs) set up under the Rashtriya Kishore Swasthya Karyakram programme of the Health Ministry which offer specialised responses to health needs to adolescents and important sexual health information (though their functioning has been muted by POCSO).
Some other policy responses to this need should be articulated within POCSO itself. One way is to reverse the age of consent to 16 as it was earlier. The other involves conceptualising the distinction in law of sexual activity between children (those under 18) and a child and an adult. The National Commission on Protection of Child Rights (NCPCR) in their draft 2010 Bill of POCSO had offered a ‘proximate-in-age’ clause that allowed the exception of consensual sexual activity within peers under the age of 18 within an age gap of 2-3 years. A nuanced law that offers responses against coercion or grooming (in relation to acts perpetrated by adults) while safeguarding the right to privacy of sexual exploration is, simply put, more effective than a stringent law that allows for no-exception and is ‘tough on crime’ through higher sentencing.
The recognition of adolescents in legal responses and policy along with age-appropriate confidential, legal access to comprehensive sexuality education could go a long way in protecting adolescents from both abuse and undue criminalisation.
Cover Image: Unsplash