15 Nov 2023 8:29 AM GMT
The recent uproar against ‘age of consent’ as per the POCSO- Protection of Children from Sexual Offences Act 2012 (amended 2019) demands critical thinking. As custodians of our children and culture, we need to examine the idea of childhood, sexuality and sexual crimes through a scientifically informed, queerfeminist lens and explore otherwise uncharted gray areas of...
The recent uproar against ‘age of consent’ as per the POCSO- Protection of Children from Sexual Offences Act 2012 (amended 2019) demands critical thinking. As custodians of our children and culture, we need to examine the idea of childhood, sexuality and sexual crimes through a scientifically informed, queerfeminist lens and explore otherwise uncharted gray areas of consent, accountability and awareness.
Are there consequences of engaging in sexual relations? Yes. Sexual relations impact the people engaged deeply, physiologically, mentally, emotionally and socially. There is a real imbalance however in how it impacts men and women. Physically- people with female reproductive systems (women, transmen, non-binary people etc.) always run more risks as compared to people with male reproductive systems, ranging from pregnancy, higher susceptibility to STD/STIs, trauma to body parts and many more. Socially and emotionally, it is again unfairly harder for them due to stigmas and taboos against sexually active or sexually abused women. Also, sexual relations can turn violent, against will or forced even between known partners. Sexual abuse can cause life long trauma. Every encounter is supposed to be a well thought and informed decision.
What is consent? In simple words, it is permission. You ask your friend if you can use their phone and wait for them to say yes or no to your request- that is seeking consent from the owner of the phone. Between “yes” and “no” we find the muddy waters of “maybe”, “not sure” or “let me think about it”. In these cases, you don’t have consent. Consideration is not permission, like a visa application. Confusion is not permission, like a subjudice criminalcase.  A permission is given clearly and willingly. Any use of your friend’s phone without a yes, you could be violating their consent and using their phone against their will. What is sexual consent? It is the permission and agreement to begin, engage and continue in a sexual relation with another person. Sexual consent must be
a) express- given readily and without “maybe” or “let me think”, instead receiving an instant, verbal “yes”;
b) enthusiastic- given agreeably and not under threat, coercion or compulsion of legal, emotional or physical kinds and
c) constant- the right to say no or demand to stop at any point during the encounter. “Yes” doesn’t come with a warranty card, it’s rather intuition and tuning into the other person.
All of this is to be considered, assessed and discussed if necessary between partners. We engage sexually for pleasure, intimacy, reproduction, power, control, money and many other deciding factors. Hence sexual intimacy is a uniquely human way of connection and communication and deserves the due critical thinking.
So then who is a child? Indian law doesn't have a clear definition of childhood. The definition and age specificity of who is a child changes according to convenience, cultural thinking and confusion across different laws and principles of the Indian Constitution. For example, POCSO defines a child as anyone under the age of 18, THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 protects only those under age 14 as a child. Different religious and community laws define anywhere between 5 to 15 as the ideal age for marriage; juvenile law plays fast and loose from the age of 12.
It’s pertinent here to note that up until a century ago, children were “fair game” for sexual intimacy and childbirth, as girls were married by childhood and impregnated by menarche. Here is a cinematic portrayal of the marital relationship between Jyotirindranath Tagore, 19, a prolific Bangali rationalist and reformist, and his nine year old bride Kadambari set in 1868 to 1884. So not only in poorer and illiterate families, but also at the top of society children were considered “fair game” for sexual relations. One must reflect on this uncomfortable truth and let it inform their path ahead in securing child rights. We have centuries of traditions, habitual practices and social norms to fight against early adultification of children.
Adults, usually men, often “wait for girls to turn legal” so they can be claimed as “fair game” in the sense that it’s fair of the much older person to demand or groom their way into a sexual relationship with a much younger person.
Clearly, we have lost perspective of the question, who is a child and what is childhood? It’s paramount to discuss our hypocrisy and confusion in assigning age to sexual consent, custodial consent, right to work, right to vote, right to drink alcohol, right to marry and so many more laws based on biases of a patriarchal society. To be truly progressive as a nation, one must introduce new legal thinking and ideas that emerge from advanced medical and psychosocial studies about the human body, mind and cultural trajectory.
Who can give sexual consent? Given the complexity of thought required to make an informed decision that impacts one life long, it’s obvious that one needs to be of a certain age and maturity to give sexual consent. The confusion is usually around the ages of 16 and 17. Since only 18 and above adults can consent to sexual relations according to POCSO, many young adults, especially the male of the couple, are wrongfully accused of criminal charges under POCSO despite having a “consensual sexual encounter” with someone under the age of 18 years. While the judiciary is quick to jump to the conclusion that the age of consent should be lowered to 16 to avoid such injustice, Garima Trust proposes that the issue is being over simplified by lowering the age of consent without any caveats. While a 16 y/o can be capable of giving sexual consent to a partner of their choice, they are also vulnerable, impressionable and considerably an easier target for predators, groomers and sexual offenders. The danger of lowering the age of consent lies in young adults being considered mature enough to consent to sex with people of any age, even with those significantly older than themselves. This will encourage predatory people exploiting young adults into sexual relationships, escaping the law after abuse and creating an overall unsafe society. It is paramount to consider not only the age of the younger but also that of the older person when considering sexual relations. As sexuality is often used for power and control, the disparity in age and maturity creates a lacuna for older abusers to impact younger targets.
Path Ahead- While we learn more about child development from medical and mental health science, for simplistic understanding, we need categories. We propose that instead of a binary category of child and adult, we can create three categories under POCSO to determine the legal definition of who is a child:
Can consent to sexual relations with anyone 18 and above?
Anyone can seek their consent for sexual relations?
POCSO status If perpetrator under age of 15 years
POCSO status If perpetrator age 16 and above
Table 1: Current chart to consider when filing POCSO charges
Can consent to sexual relations with anyone 18 and above?
Anyone above 18 can seek their consent for sexual relations?
Proposed POCSO status If perpetrator under age of 18 years
POCSO status if perpetrator age 18 and above
Child Behavioral/ developmental Issue | awareness, reform and therapy based intervention
Adolescent/ Young Adult
Conditional- can only engage and consent to sexual relations with a partner aged strictly between 16 to 17 to prevent predation and grooming from older and more powerful person in the relation
Table 2: Proposed chart to consider when filing POCSO charges
As per Table 2 above, here’s a possible caveat in POCSO that is popularized as the Romeo-Juliet clause, but with more child-centered terminology to reimagine adolescent sexuality as natural yet needing guidance and education. For e.g. Adolescent Sexual Intimacy Clause or (ASIC) could be a healthy place to start the process of nomenclature. Under this clause, if adolescents aged 16 to 17 are booked under POCSO provision (usually by female’s family) the case will be under the following considerations:
In case all above are true, we propose to apply the Adolescent Sexual Intimacy Clause, where parties involved are not processed criminally. Instead, focus is made in sexual education, awareness, autonomy and the idea of personal safety for all under the age of 18. This might sound preposterous in our cultural context for underage people to stand up for themselves against their families in a court of law. But our judiciary has always gone a step ahead in writing progressive laws that slowly shaped our progressive democracy. Under the right guidance of the judiciary, sex education and awareness, learning consent, personal space, self care and dignity can replace harsh criminal laws like POCSO in the lives of many innocent adolescents, and limit it only for accused adults of 18 years and above.
The POCSO Act is a global bastian of child rights. We propose to make further progress and reduce any collateral damages to young adults for the lack of a better provision. Progressive laws are not enough, they are just a strong head start. But through them we can idealize our version of an empathetic, supportive stewardship of the next generations of Indians.
The author is an Executive Director at Garima Trust. Views are personal