“Love has no age nor does the feeling of being attached.”

Simply understanding, consent here means that you freely agree to engage in sexual activity. Someone may be considered incapable of consent[2] if they’re:

• Intoxicated on alcohol or drugs
• Asleep or unconscious
• Physically, mentally, or developmentally disabled, including a senior with dementia
• Younger than the age of consent in that state

Age of consent is a legal term for the age, a person must reach to give consent to sex. If an adult engages in any type of sexual activity with someone below the age of consent in that state, they’re committing a crime even if the minor said they agreed to have sex.

In the U.S., laws to define consent and the age of consent are different in every state. The national average age is 16. In Arkansas, the age of consent is 15, while in Oregon, the age of consent is 18.

Statutory rape[3] is a crime where one or both people are below the age of consent, and they both agree to engage in sexual activity. Since, one person is legally too young to consent to sex, the encounter can’t be consensual and legally is known as rape.

The age difference between the two people may determine the severity of a statutory rape charge or sentence if they’re convicted.

The age of consent is the age at which a person is considered legally capable of agreeing to marriage or sexual intercourse. In other words, it is the age at which a person’s consent to sexual intercourse is valid in law.

• WHAT IS AGE OF CONSENT?

The POCSO Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors because the presumption of the law is that there is no consent in the legal sense among those below 18[4].

• REASONS BEHIND ALL THE ATTENTION TO AGE OF CONSENT

The Chief Justice of India’s message to Parliament to address concerns about the age of consent under the POCSO Act (Protection of Children from Sexual Offences Act), 2012 is an amalgamation of a series of events. The Madras, Delhi and Meghalaya High Courts have flagged matters concerning criminalisation of romantic relationships between or with an adolescent under POCSO, 2012.

In November 2022, the Delhi High Court in AK v. State Govt of NCT[5] of Delhi (order by Justice Jasmeet Singh) stated that the intention of POCSO was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults.

However, in December 2022, the government told Parliament that it does not have any plan to revise the age of consent.

The panel further advised the Law Ministry[6] to: –

• Introduce guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.
• Further, suggested to make amendments in the legislation to better deal with cases involving tacit approval of children, though not consent in law, in this age group.

The Law Commission report on the age of consent under the POCSO Act was submitted to the Law Ministry. In the report, the panel also advised,

• The courts to be cautious while going through cases under POCSO as the panel observed that criminal intention may be missing in certain cases as adolescent love cannot be controlled.
• Additionally, the Law Commission has recommended rolling out registration of e-FIRs in a phased manner beginning with offences bearing up to three years jail term.
• The law panel proposed setting up a centralised national portal to facilitate registration of e-FIRs.

BACKGROUND OF THE POCSO ACT, 2012

Prior to the POCSO Act in 2012, there was no age of consent defined separately for males and it was fixed by virtue of Section 375 of the IPC, which defines “rape”. For females, the age of consent was 16 years till 2012.

Thereafter, in 1891, the age of consent for a woman was raised to 12 years under Section 375 in the aftermath of the public outcry caused by the Phulmoni case.

It defines a child as any person below eighteen years of age and regards the best interests and welfare of the child as a matter of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.

It defines different forms of sexual abuse, consisting penetrative and non-penetrative assault, as well as sexual harassment and pornography.

It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.

It also casts the police in the role of child protectors during the investigative process.

The Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.

It was amended in August 2019 to provide more stringent punishment, including the death penalty, for sexual crimes against children.

• CONTEMPORARY ISSUES WITH THE AGE OF CONSENT

As per the ever-evolving time any undiscussed topic, cannot remain unattended for long, someday or the other it would require urgent heeds for an open society to prevail,

In the same vein, contemporarily, Age of Consent is dealing with certain lacunas, that are as follows: –

• Instrument to Silence or Regulate a Consensual Sexual Relationship: The root cause of the problem at hand is that POCSO combines exploitative sexual practice and general sexual expression by an adolescent and criminalises both. Due to which, criminal law has become an instrument to silence or regulate a non-exploitative consensual sexual relationship involving a minor girl, which is voluntary.
• Desexualises Minor Girl: The legal aspects of teenage sexuality have undergone several changes since colonial times. The age of consent has increased from 10 to 12 to 14 to 16 and finally to 18 years by the 2013 amendment, in order to bring it in conformity with the then newly legislated POCSO Act. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily — therefore, it desexualises her.
• Ignores Social Reality: The law that criminalises adolescent sexuality either ignores social reality or pretends to do so. According to the NFHS-5, for instance, 39% women had their first sexual experience before turning 18. The same survey provides additional evidence of sexual engagement among unmarried adolescent girls by reporting contraception use by 45% of unmarried girls in the age group of 15-19 years.
• Government Acting as Parens Patriae: The recent criminal law amendment in state of Uttar Pradesh (under this, the accused in cases of rape and POCSO will not get anticipatory bail) rubs salt on the already wounded. The state seems to be acting as parens patriae to protect children from sexual offences and ironically, prosecuting the youth at the same time.
• Burdens Already Overburdened Courts: The number of juveniles (especially those between the ages of 16 and 18) apprehended under the POCSO Act in the country has seen a staggering jump of 180% between 2017- 2021 according to the National Crime Records Bureau’s report, ‘Crime in India 2021’. Criminalising underage sexuality (25% of total POCSO cases) burdens the already-overburdened courts thereby clogging up the criminal justice machinery even more.
• Hampers the Victim’s Privacy: The cumulative victimisation of the “consenting” girl also deserves the lawmakers’ attention. POCSO, MTP (Medical Termination of Pregnancy) Act and the Child Marriage Act create a complex socio-legal web that deprives the minor girl of the rights to dignity, liberty, sexual and reproductive health, and undermines her privacy. This also feeds into a milieu of poor sexual awareness among young girls.

• JUDICIAL STANCE ON AGE OF CONSENT

The judiciary has endeavoured to rectify what the legislature might have initially gotten wrong.

The Madras High Court in Vijayalakshmi v State[7] (2021) made it imperative to draw a line demarcating the nature of acts that should not be made to fall within the scope of this stringent law.

The obiter of the court that POCSO has become a tool in the hands of certain sections of society to abuse the process of law is corroborated by other courts too. Prima facie the judiciary seems to have a sympathetic approach in cases — it has readily granted bail where the outcome of the love affair is marriage. In Dharmendra Singh v State Govt of NCT[8] (2020), the Delhi High Court has attempted to increase the chances of bail of an accused in an “innocent yet unholy physical alliance” or where there is “tacit approval-in-fact” by the girl and the “age difference between the victim and the offender is less”. Recently, Karnataka High Court, while dismissing a case filed under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), said the Law Commission of India will have to rethink the age of consent for Adolescents. The court said, the aspect of consent by a girl of 16 years, but who is below 18 years, would have to be considered, if it is indeed an offense under the Indian Penal Code and/or the POCSO Act.

In Phulmoni Dasi rape case, Phulmoni was an 11-year-old girl who died of haemorrhage from a rupture of the vagina caused by her husband who had forced sex on her. The husband was held guilty of only causing grievous hurt by doing a rash or negligent act dangerous to life and sentenced to one year’s rigorous imprisonment. Later, the husband was acquitted of the rape charge as the law on rape exclude marital rape from the purview of punitive law.

The high court went on to advise that the Law Commission to reconsider the age of consensual sex to address the issue of instances of mutual love affairs amongst minor girls and boys, who are aged above 16 but below 18 years. It also observed that there has been a pattern of similar cases where minor girls above 16 have eloped and entered into consensual sexual relationships. 

In light of the recent debate on raising the age of marriage for women from 18 to 21 years, it is pertinent to ask: Would merely raising the age of marriage be sufficient to deal with strings of such cases? In a country like India, where sexual relationships are traditionally attributed to marriage, what role does the age of marriage play?

This move was initially opposed in the Legislative Council of the Governor-General of India in Calcutta by orthodox Hindus. However, the aftermath of infamous cases like those of Phulmoni Dasi, which involved the death of a 10 year old girl after forceful intercourse by her 35-year-old husband in 1889, and Rukhmabai case[9], which involved the unfortunate death of an 11-year-old Bengali girl, ultimately drove the British to push the legislation in 1891.

In the same canal, in 2012, after the infamous Delhi gang rape occurred, more stringent laws pertaining to rape and sexual assault were introduced by means of the Criminal Law Amendment, 2013. Among other things, it amended various sections of the Indian Penal Code, 1860, including  Sections 375 (defining rape), 376 (providing punishment for rape), and 354 (providing definitions and penal provisions for sexual harassment). The POCSO Act broadened rape laws in India and increased the age of consent for sexual activity from 16 to 18 years for all genders.

In 2019, the Madras High Court also directed that the age of consent in sexual intercourse be reconsidered, lowering it from 18 to 16 years. There is also ample data to suggest that the legal age of consent and child marriage laws are selectively used by parents to target relationships that involve inter-caste or inter-religious affairs, and in general where the parents do not approve of the relationship. 

• WAY FORWARD

Problems can be well addressed by looking for reasonable solutions that point towards the path of holistic development. Here are some suggestive measures to deal with Age of Consent as a topic in limelight these days: –

• Training for Investigating Officers: Investigating officers should be provided with proper training on the handling of POCSO cases. This can include training on the proper techniques for collecting and preserving evidence, interviewing child victims and witnesses, and the legal requirements of the POCSO Act. E.g., the Tamil Nadu police guidelines directing police personnel to not act hastily when arresting youngsters for romantic cases under POCSO is one intervention to address the Act’s tendency to over criminalise.
• Revising the act: Revising and updating the POCSO Act in order to address the changing needs and realities of modern society is important in order to ensure that the act continues to serve the needs of children and promote their rights and well-being.
• Harmonizing the age of consent for sexual activity; with the age of consent for marriage, which is 21 for males and 18 for females, would help to reduce confusion and promote greater consistency across different areas of law.
• Promoting positive and comprehensive sexuality education: Promoting positive and comprehensive sexuality education, including education about consent, would help to reduce the incidence of sexual offences against children and promote greater understanding of the issue among young people and wider society.
• Improving data collection and analysis: Improving data collection and analysis, including through the establishment of a centralized database of reported cases, would help to better understand the extent of the problem and to identify areas for improvement in the legal process.
• CONCLUDING IDEAS

Why do we persistently seek punitive measures for social problems? Is it primarily about attempting to regulate adolescent sexuality while feigning ignorance of their sexual experiences? Such approaches often sidestep addressing the fundamental issue at hand. With reference to the Protection of Children from Sexual Offenses (POCSO) Act, 2012 enacted to safeguard children from sexual abuse and sexual offences which clearly defines a child as any person below the age of 18 years. This, in effect, criminalises all sexual activity between adolescents less than 18 years of age.

Keeping the Indian way of life in mind wherein a child is always considered a child, one may take time to adapt to change gradually, but that does not mean that change can go unobserved. Change is the only constant and when it comes to broadening the culture of Indian societies, one must think about it with a broad, reasonable and practical mind.

“POCSO is meant to protect minors from sexual abuse, rather than criminalising consensual romantic relationships of young adults”.

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[1] Protection of Children against Sexual Offences (POCSO) 2012

[2] Section 11, Indian Contract Act (1872)

[3] Section 376, Indian Penal Code (1860)

[4] Live Law, www.livelaw.in, 4^th February 2023

[5] AK v. State Govt. of NCT, Delhi HC (2022)

[6] The Hindu, www.thehindu.com, 29^th September 2023

[7] Vijayalakshmi v. State (2021)

[8] Dharmendra Singh v. State Govt. of NCT (2020)

[9] Dadaji Bhikaji v. Rukhmabai (1886)

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Author: Vrinda Lahoti

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