The right age for sex: 16 or 18? A legal view
New Delhi: After a Delhi court asked the government to review a proposed legislation that would raise the age of sexual consent to 18 from 16 if passed in Parliament, most of the discussions and media articles have missed the wood for the trees. The age of consent issue has very often been discussed without placing it in the right context i.e as a part of the 'The Protection of Children from Sexual Offences Bill, 2011'.
The Bill is the culmination of the attempt first undertaken by former Prime Minister AB Vajpayee in 2000. It is meant to protect Indian children from being sexual abused by adults.
Noted writer and lawyer Pinki Virani has been a crusader for protection of children against sexual abuse. She told IBNLive, "It is India's first legislation, ever, to protect children sexually from predatory adults. The term children means all those who are minors. That is, the future citizens of India who are between newly-born and up to 17 years, 11 months and 29 days. (As also those yet to be born, I might add, since the law will protect every child-citizen of India hereafter.) At 18 years of age, the child become a major. These age-bands are, generally speaking, internationally accepted as 18 being the time a human being is physically, financially, emotionally and sexually more able and capable to handle the process of adult-hood which involves not only rights but also responsibilities. To date there has been no law in India to protect those under 18 from paedophiles, be they in the home or outside. Cases being reported – most are not – have been tried in adult courts with the application of adult laws and adult timeframes. The Bill, when it becomes law, will change this."
Virani had shot off a letter to the Parliamentary Standing Committee headed by Congress leader Oscar Fernandes that was looking into the Bill when it was introduced in Rajya Sabha in March, 2011. She says, "The Bill, bizarrely, introduced a clause that almost legalised child sexual abuse. The clause, paraphrased, said that should an adult – anyone from 18 to 80 years or more of age – sexually abuse a child between 16 and 18 years of age, it would be examined if the child 'consented'. Surreally, this disenfranched this entire age-band of children from legal protection against sexual abuse, and every generation of Indian child is this age-band in the future. Such a clause could not be there without taking complete consent from the actual stakeholders. And these are not politicians or NGOs based in Delhi. These stake-holders are pan-India. They are, and always have to be, those directly concerned. The parents and grandparents, who might also be working professionals like doctors, lawyers, psychiatrists, counsellors and perhaps even elected members of Parliament and state assemblies whose informed insight should help shape the child’s rights space. Principals of schools and colleges, teachers and other educationists, young adults above 18 who plan on having children of their own should also be included."
Asked on the 'consent' element which everybody seems to be obsessed about, she says, "Here is how it can be misconstrued as 'consent' if this clause of decriminalising sexual acts by adults upon children between 16 and 18 years of age was not removed. A 16-year-old girl is being taught dance by an adult instructor. In the manner of all perpetrators he grooms her so that there will be no ongoing objection, slowly he moves in to perform several sexual acts with her. The onus to prove that she did not want 'it', would be upon her. As will the onus on a 17-year-old boy sodomised by a male-adult known to him. Or even one whom he has recently met, and he doesn't know that he has been snared into that part of the web looking for 'fresh male meat'. For instance in a chat room on the Internet, then they meet in person and the boy is sodomised."
Jayshree Satpute, another noted lawyer connected with the Human Rights Law Network, also says, "The Age of Consent needs to be reviewed and more clarity on explanation of the term 'consent' is desirable. Age difference should be taken into account while the law should look at every case as unique."
But most of the countries of world have 16 as the age of consent. So what is the legal merit of raising the bar? Virani brings in the element of 'informed consent' instead of ignorant giving in to predatory advances.
She says, "Different countries have varying ages of what construes consent. In the countries where it is 16, it is understood to mean 'informed consent'. These nations also try to ensure that safeguards are in place for their young to fall back upon should they need immediate and sensitive legal assistance, starting with the police moving in to immediately stop the adult forcing himself, or herself, sexually upon the minor the moment there is a call for help from the latter, even if the minor falls in the consent-band. More so since internationally it is clearly understood that child sex abusers rarely stop at one child or one instance. Research indicates that adults can sexually abuse up to 35 children before being identified as paedophiles. There is also a very real concern in developed nations about the appalling side-effects of child sexual abuse which tend to criminalise the child as also carry over to future generations. Generally speaking – because not every sexually-abused child displays the same or some or all after-effects – children act it out on other children in school. They grow up misunderstanding their original sexuality, some become hypersexualised and are traumatised by their bisexuality. Boy-children can become wife-beaters, girl-children indifferent mothers. Some can grow to become child sexual abusers themselves. Purely as an observation it has also been pointed out that in countries paying due attention to the sexual well-being of their young, even criminals in jails treat child sexual abusers with greater contempt."
What many have wondered is that with more teenagers having sex between themselves than before, isn't such a legislation retrograde? Virani steps in to clarify the matter: "First, let us not confuse adults preying upon children sexually, with teens experimenting between themselves. Second, there are overwhelming factors leading to too-early sexualisation of Indian teens which need to be addressed separately. Girls are feeling the (false) pressure to provide oral sex as soon as they enter their teens. Then they are being recorded on mobile phones and such 'films' are mms-ed. Is that honestly 'consent'? It's up to the stakeholders to decide what they see as 'consent', and also start a dialogue on what, then, would be the next lowering of age-band, from 16 to 13, then 10?"
Satpute also pitches in: "Usually if both the consual actors are minors, criminal charges are not framed against either of them. The criminal charge kicks in as the age gap between the partners increase."