Judicial Reaction to Consensual Sex between Minors under POCSO Act, 2012
Millions of children around the world fall victim to sexual exploitation, harassment and abuse, every year and more than half of such cases go unreported because minors are deterred from reporting the same or are simply unaware of the nature of such atrocious act committed against them. In the light of such scenarios, UN bodies like the United Nations International Children’s Emergency Fund (UNICEF) or The United Nations Convention on the Rights of the Child (UNCRC) were prompted to design laws in order to stop sexual violation against children. The UNCRC safeguards the rights and interests of children, internationally, by chalking out guidelines for nations to work on, to ensure a safe haven for them. In India, legislations like the Protection of Children against Sexual Offences Act, 2012 (POCSO, 2012) and Juvenile Justice (Care and Protection of Children) Act, 2015 have been enacted in conformity to UNCRC. However, what was drafted as a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law. For instance, recently the Madras High Court, after noting that the male accused in his mid-twenties, eloped with the victim, married her and consummated it, held that the POCSO 2012 did not intend on prosecuting adolescents for engaging in romantic relationships. Asserting that the true purpose of this enactment was protecting children against sexual assault, harassment and pornography, the court quashed the criminal proceedings against the Respondent. In doing so, it relied on several scientific outcomes and concluded that the ardent desire of teenagers to look for relationships and partnerships is largely a result of their unfettering emotional and biological needs, so originating from the changes in their neurological, cognitive and psychological system.
Consensual Sex between Minors in India – The need for its recognition
Previously, the Madras High Court had also pointed out the need to amend the definition of “child” given in POCSO 2012 to reduce the age of consent to 16, thereby preventing the imposition of criminal charges upon the male counterparts for engaging into a consensual relationship. Although this stance is appreciated, it does not explicitly concur with the very averments made in the aforesaid case, where it was asserted that hormonal changes in the body continue to influence individuals even after the age of 18 and therefore, such protection needs to be accorded even to those above the said age. Nevertheless, in both the scenarios, the court has asserted upon the need for altering the laws for preventing the prosecution of teenagers and those who are little above the said age, calling upon the need for the concerned authorities to address and preserve the gender-neutral character of POCSO, 2012. This is in disagreement with the view of the Gujarat High Court, which, specifically restricted the purpose of the enactment to that of sheltering the best interests of the girl child, indicating that in situations involving two minors of opposite sexes under this law, the needs of the former would be taken into consideration, even if that were to override the well-being of the latter. Even in the quest of sheltering the interests of the females, neither the State nor the Judiciary can enforce stereotypes against them and deem them incapable of undertaking personal decisions; and those against men, for instigating a relationship for reaping sexual pleasures. Notably, a Delhi Court, on one occasion, refused to apply the provisions of this enactment against a 22-year-old male from West-Bengal, who allegedly took away a 15-year-old minor and had sex with her after procuring her consent and willingness to that effect. According to this Court, the provisions of the Act would come into picture only when forced sexual activity occurs against one individual. Where reducing the age of consent from 18 to 16 years is likely to aggravate diverse offences against women in India, the authors believe that the courts could continue prosecutions against the minor offenders only when the female victim seeks the same – her minority shall not be an issue as long as the Court finds her reliable and trustworthy. Even the Bombay High Court granted bail to a 19-year-old male, the cousin of the 15-year-old victim who was inter-alia charged with commission of rape and penetrative sexual assault against the latter. It did so after taking into consideration her statement with regards to her consent to the sexual acts. This stance confirms with its assertions in Sunil Mahadev Patil v. State of Maharashtra, whereby the Court stated the following guidelines which the judicial forums must take into account while deciding on granting of bail with to a major man who had indulged in a consensual sexual intercourse with a minor girl:
1. Age of the Minor prosecutrix
2. Act is violent or not?
3. Any antecedents?
4. Can the offender repeat such an act?
5. Any threat on releasing the boy?
6. Any scope for tampering with the witnesses?
7. Age of the Boy and his future prospects.
It appears, that the Indian Judiciary, besides expanding upon the traditional definition of “child”, has instituted the process of deviating from its earlier approaches of dealing stringently against minor males in matters relating to mutually agreed sexual encounters with such females. Indeed, it has balanced the reputation and the future of the former, a stance, appreciated by the authors.
Foreign Jurisdictions on the Rights of Minors to Consensual Sex
The aforesaid approach has been meticulously incorporated by the United Kingdom within its jurisdiction, though it does declare any form of sexual activity involving a child below the age of 13 years as rape. Furthermore, in the United States of America, the relevant Court after interpreting California Penal Code in a case involving consensual sexual intercourse between a 17 and a 21-year-old, held that it did not amount to rape. In doing so, it affirmed that so far as the age difference between the minor and the adult indulging into consented sex was meager, it is unjust to classify that act as rape - this is incidental to the suggestions proffered in Sabri v. The Inspector of Police and later recognized by it in Vijayalakshmi v. The Inspector of Police. In South Africa, the Constitutional Court declared that consensual sex between minors between the age of 12-16 years, is constitutionally permissible. Punishing adolescents for indulging in sexual acts which are otherwise “normal” is likely to disgrace them and must be avoided at all costs – yet again, in consonance with the findings in the aforesaid verdicts pronounced by the Madras High Court.
The authors, through the medium of this article strive to assert the need for permitting concordant sexual activities between minors only in cases where:
a. The participants are not less than the age of 12-13 years.
b. The difference between the minor and the adult who have had such sex is not more than 5 years.
Accordingly, there is a dire need for amending the Indian Penal Code 1860 and the POCSO 2012 to the extent that the aforesaid suggestions are incorporated, so as to shelter the constitutional rights of all individuals to indulge in permitted sex with a partner of their choice. Likewise, branding a minor boy with a crime is likely to destroy his career prospects and that of an able citizen in the society. This position is grossly ignorant of the noble goal of the State to further the growth and development of our children and ensuring their welfare as the fellow countrymen. However, the authors also seek to draw attention of the readers to the fact that younger the age of a person when he or she first has sex, greater the chances of suffering from unintended pregnancy, depression and STIs. Therefore, adequate precaution with this regard, besides early-age sex-education, both at home and school needs to be enforced better in the country, for truly protecting the best interests of teenagers in India.
The piece is authored by Vanya Srikant, Advocate at Bombay High Court and Shrirang Ashtaputre, student at ILS Law College, Pune.