THE ISSUE OF AGE OF CONSENT IN THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Apoorv Gupta
It has always been a societal aim to regulate inappropriate sexual contact with children. An interesting issue at the centre of this social action is the age of consent, i.e. the age at which the law should allow children to engage in sexual acts. Age of consent laws form a legislative latency period, sexuality held in abeyance until the specified age is reached. 1 The emphasis of such laws is on setting a barrier to sexual conduct with children of a specific age. Fundamental to these age specific laws is the idea of consent. Consent is an act in which one person alters the normative relations in which others stand with respect to what they may do, that is, their rights, duties, obligations, privileges and the like.2 Consent is a balanced act of reason, accompanied with deliberation3, to assent to what is done or proposed to be done by another. 4 It is a voluntary agreement freely given by a rational and sober person able to form a reasonable opinion upon the matter to which he or she consents.5 It is generally thought that it as morally and legally permissible to engage in sexual relations if the parties consent to do so.6 But that is not the case with minors. The very rational behind age of consent laws is that minors are incapable of giving consent, let alone it being a valid one. In India, until recently the age of consent to sexual relation was 16,7 but amid much controversy and debate, the newly passed Prohibition of Children from Sexual Offences act, 2012 has increased it to 18 years. According to the legislation all individuals under the age of 18 are children and engaging in sexual activity with such individuals is a punishable offence. This new legislation has reignited the debate over the validity of rational behind age consent laws and the harmfulness of adolescent sex. Is it true that minors are incapable of giving consent? The mental capacities required for competent consent are always a function of the subject of consent.8 A persons competence should be evaluated by reference to the mental capacities that are relevant to that decision and there is no reason to think that the relevant mental capacities of many minors are lower than the mental capacities of adults whom we regard as capable of giving morally transformative consent.9 Minors should have some say in what they do with their own bodies. They should be free to decide, as a matter of right, whether or not they want a sexual
1

Kate Sutherland, From Jailbird to Jailbait: Age of Consent laws and the Construction of Teenage Sexualities, 9 WILLIAM AND MARY JOURNAL OF WOMEN AND THE LAW 313 (2003). 2 ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS 119-120 (2003). 3 See Shambhu Ram v State of Jharkhand and another, 2011 Indlaw JHKD 88. 4 See Rattan Lal and Etc v State of Himachal Pradesh, 1989 Indlaw HP 9. 5 P NYGH & P BUTT (EDS), BUTTERWORTHS CONCISE AUSTRALIAN LEGAL DICTIONARY 9 (1997). 6 WERTHEIMER, supra note 2, 11. 7 See Indian Penal Code, 1860 375. 8 WERTHEIMER, supra note 2, 131. 9 Id.

relationship.10 Even the British law accepts that older children have a developing competence to make autonomous decisions and that autonomy and competence doesnt just appear on a given date in calendar.11 But the legislators in India have failed to realize that mental maturity and ability to consent is a continuous evolution process which starts right from the onset of puberty and reaches a near constant basic level in the age group of 16-18; we dont flick our sexual switch to 'on' at 18; zoom from 0-60 on our eighteenth birthday and that individuals between the age group of 16-18 have nearly the same level of mental capacities. Equally faulty is the claim by the legislators that the recommendation to make consent "irrelevant" up to the age of 18 was in consonance with the United Nations Convention On The Rights Of The Child (UNCRC). For, nowhere does the UNCRC stipulate that the age of consent for sexual activities should be fixed at 18. This is borne out by the fact that an overwhelming majority of the countries, including advanced democracies, have adopted an age of consent that is below 18. The act in question takes no account of teenagers' real lives and ignores people's sexual development. In a social environment where teenagers are becoming increasingly aware about sexuality the act can have terrible consequences.12 It will criminalize hundreds of thousands of young people for normal, natural behavior. It would open floodgates for prosecution of the boys for offence of rape, on the basis of complaints by the parents of the girl, no matter the girl would have been the consenting party and the offer to have sexual intercourse may have come from her side. It may also indirectly promote illegal abortions endangering the life of the girl child in situations where pregnancy is not reported to the appropriate authorities fearing conviction of the girl childs consensual partner. Moreover the new legislation has added another chapter to the already wide subject of legal anomalies in India. In rural India where the problem of child marriage is rampant, sex between minors is obvious. Interestingly, while the Prohibition of Child Marriage Act, 2006 prohibits marriage below the age of 18 years for girls and 21 years for boys, it does not make a child marriage invalid or null and void unless either of the parties seeks an annulment.13 Now, after rising the age of sexual consent to 18 the legislators have clearly allowed sexual relationship between an underage wife and husband to be booked for a criminal act of sexual abuse. An otherwise legally married man can now thus be spending his hay days in detention. 14 Even if the child marriage law is amended in future to automatically nullify a child marriage, young people will continue to enter into pre-marital sexual relationships. Coitus occurring after puberty, willingly undertaken by the youngsters, and representing the fulfillment of normal physiological need is very natural.

10 11

OCARROLL, 27 (1980). Gillick v. West Norfolk and Wisbech Area Health Authority and the DHSS, [1986]1 AC 112. 12 PTI, Good Act, bad provision, May 26, 2012, available at http://www.thehindu.com/opinion/editorial/article3456804.ece (Last visited on July 17, 2012). 13 Bharti Ali, Age of Consent Catastrophe, May 21, 2012, available at http://www.haqcrc.org/blogs/age-consentcatastrophe-tribune-monday-may-21-2012 (Last visited on July 17, 2012). 14 Id.

In addition to it, little thought appears to have been paid to the implications of contradicting clauses with the Indian Penal Code. How can the age of consent be both 16 and 18 in the same sexual context under two different laws? In its report tabled in Parliament in December, the standing committee addressed this critical question cursorily.15 All it said was: "Section 375 of IPC would operate in totally different circumstances when compared with provisions in clauses 3 and 7 of the present Bill."16 This claim is far from true as one of the clauses in the legislation, clause 3 of the act, dealing with "penetrative sexual assault", falls squarely under the ambit of Section 375 of IPC, with reference to cases where the victim is a female as rape covered under the said section of the IPC specifically deals with penetrative type of sexual abuse against females. This has created an atmosphere of uncertainty about the outcome in the event of occurrence of such instances. It is clear that one of the most difficult issues for law is to strike an appropriate balance between protecting children from sexual abuse and exploitation, on the one hand, and permitting the sexual expression of young persons as they proceed through adolescence into young adulthood, on the other.17 But, in the excessive desire to protect their vulnerability, legislators could well be increasing their vulnerability. The present legislation is an example of this sort. It is a regressive and draconian law that tends to criminalize adolescent sex and prohibits sexual activity and expression on the part of teenagers. In the words of Additional session judge of a Delhi court, the need is to correct the behavior and not punish it. This can be achieved more effectively by improving the quality of sex education in the country. It has generally been observed world over that the societies which are much more open about these issues, where it is easier for children to talk about such issues to their parents, children tend to delay their first intercourse. The evidences show that the more you talk to young people about sex, the more sensible they are, and the more willing they are to delay.

15

Manoj Mitta, Regressive clause clashes with IPC rape laws, April 30, 2012, available at http://articles.timesofindia.indiatimes.com/2012-04-30/india/31506390_1_sexual-offences-consent-penetrative (Last visited on July 17, 2012). 16 Id. 17 Committee on Sexual Offences against Children and Youth, Sexual Offences against Children in Canada: Report of the Committee on Sexual Offences Against Children and Youth, Supply and Services Canada, Ottawa, 1984.