SHIFTING THE BOUNDARY OF CONSENT TO 16
– Yashika Goplani & Anchal Raghuwanshi
Abstract
The teenage years are a turning point in every person’s life as they go through many emotional, physical and psychological changes making this phase a difficult as well as a beautiful one. This tender age group often makes people do things which they don’t even want to. Our laws are ambiguous regarding the maturity of a person. It considers children between 16-18 years as mature enough to commit a heinous crime but not capable enough to give consent for consensual sex. This article discusses over reducing the age of consent to 16 rather than being 18. It mentions reasons considered for keeping it 18 years and then counters them by substantial points in the further part. The judicial interpretation of the word ‘consent’ has been elucidated focusing on the parts favouring 16 years. An overview of the stand of different countries has been noted with special emphasis on Romeo Juliet laws. India being a part of different International Conventions has contradicted some of them by keeping the age as 18 as more often the situation is molded in favour of the girl, arbitrarily depriving the boy of his life. The conversion of consensual sex into rapes is increasing the rate of false crimes which is a threat to the welfare of the country. At last the article has been concluded by highlighting the overlooked sex education and has emphasized on making it the foremost thing for the teenagers.
Introduction
The legal framework regarding the sexual behavior of the teenagers and the ‘age of consent’ is the focus of conflict in Indian politics. Age of consent is the age at which a person is legally eligible to give consent for a sexual act. The terms such as ‘teenager’, ‘adolescent’ or ‘minor’ are vague to define and are crammed with symbolic associations.
Indian Penal Code, 1860 prescribes 18 years as the minimum age for sexual activity with a girl irrespective of her consent and that is where the problem begins. Studies have proven that teenagers attain puberty earlier than before which makes them sexually active. And putting an absolute bar on even consensual sexual activity just because of societal norms will only lead to unwanted consequences and have a negative impact. Ignoring the contemporary social reality where teenagers are more aware and have much greater exposure to issues involving sex, pegging the age of 18 makes no sense.
The relationship between law and social change is a complicated one. At times the law leads, breaking new ground for egalitarianism and demanding new social assumptions and conventions. In this Article we have critically analyzed the obsolete laws of India related to ‘age of consent’ and the need to reduce the age with the changing psychology.
CONSERVATIVE OUTLOOK
“In India the Age of Consent to sexual intercourse is 18 years for both males and females, subject to certain exceptions. This is not directly specified in any Indian legislation and is understood from the way ‘rape’ is defined under the Indian Penal Code (as amended by the Criminal Law Amendment Act, 2013) and the way ‘penetrative sexual assault’ is defined under the Protection of Children from Sexual Offences Act, 2012 (POCSO).” It is believed that children up to the age of 18 do not actually realise the consequences of their acts.
In India, girls are considered to be the honour of the family and any sexual intercourse by them before marriage is against their beliefs and status in society. The crime rate between the age of 16-18 is increasing at a rapid rate in the country mainly because teenagers often indulge in sexual activities which is illegal and amounts to rape irrespective whether the consent is given or not. Love marriages and live in relationships are still considered a taboo, which forces teenagers to elope from their families. “The myth of the male primal urge and female provocativeness is still deeply rooted in society and continues to affect rape prosecution as well as sentencing in India.”
It was a belief that if the age is reduced down to 16, teenagers will be more active since they will have no obligation as it will be legal. Maturity in India is considered as attainable at the age of 18 years and therefore, citizens are given the Right to vote , permission to issue license, marriage age for girls as 18. They are considered to be mentally stable and prepared to see the aftermaths of their actions. Students are in X or XI standard in 16 years, having no knowledge of what protection and precautions are to be taken even if it is consensual.
One in four Indian women (26.8 percent) is married before 18, and 7.8 percent of women aged 15 to 19 are pregnant or mothers, according to the latest available 2015-16 National Family Health Survey (NFHS)-4 data. In Bihar, of more than 10,400 adolescents (15-19 years) surveyed, 14.1 percent of unmarried adolescent boys and 6.3 percent of unmarried adolescent girls had premarital sex; and of them, 22 percent boys and 28.5 percent girls had premarital sex before 15 years, according to a 2016 report by the Population Council, an advocacy.
The above data clearly indicates the repercussions which ultimately parents will have to face. Premarital pregnancies can destroy the career of the teenagers. Between the age of 16-18, students often indulge in watching pornography which increases their curiosity for having sex leading to increase in the number of rape cases. Every situation will have positive and negative effects but with the passage of time, youth believes that the age should be reduced whereas the parents are in opposition to this.
JUDICIAL INTERPRETATION OF “CONSENT”
Section 87 of the Indian Penal Code states that any person who is above the age of 18 years can give valid consent. On the other hand a child who is below 12 years of age cannot give a valid consent. The question here arises about the age group of 12-18 years because it is implied that this age develops sufficient understanding. Section 90 of Indian Penal Code gives a negative definition of consent i.e., it explains what is not a consent.
Sexual intercourse with somebody who is not eligible to give consent is considered an offence. That does not mean that everybody who is eligible to give consent is always up for all sexual acts with anybody and thus need not be asked. There have been various interpretations of consent by the Indian Judiciary.
In S. Varadarajan vs State Of Madras , it had been considered that though the age of consent as per law was 18 years, when the girl ran off with the accused, she was 17. The Supreme Court pointed out that if a girl takes initiative or she is active in eloping with the boy and she understands the meaning of relationship and of marriage, then the severity of offence is reduced.
POCSO has been a significant legislation in securing children’s rights and protecting them against sexual abuse. But the loophole is, it doesn’t differentiate between sexual acts of consent minors rather it criminalizes all. Every individual’s age of understanding is different as pointed out by different High courts.
In Sunil Mahadev Patil vs The State Of Maharashtra , it has been very well established by the court that, “Sexual urge differs from person to person and there cannot be any mathematical formula in respect of sexual behavioural pattern of teenagers, as biologically whenever the child turns into puberty, the child starts understanding his or her sexual needs. Sex requires proper physical and emotional preparation, as it results in many physical and emotional consequences. This is all considered as a sexual maturation.”
In Jiten Bouri vs State of West Bengal the Court said, “Although the girl has not attained majority yet she has reached the age of discretion to understand her own welfare which is a paramount consideration for grant of her custody. She may not have attained marriageable age as per the provisions of the Hindu Marriage Act but marriage in contravention of age can neither be void nor voidable.”
Even the court sometimes opts for a liberal view related to the age of maturity for teenagers. The Judiciary is given the responsibility to interpret the law and not make any law which sometimes restricts the court from giving justice to someone who deserves it.
In Sabari Sabarinathan v. Inspector of Police , the court was genuine enough to give a thought of lowering down the age of consent to 16 by giving proper reasoning. It stated that consensual sexual act between the individual above the age of 16 years of age should not be considered a criminal act because even though a girl hasn’t crossed 18 year, she was capable of giving consent for relationship, being mentally matured. It was although obiter dicta hence cannot be binding because the act attracts the provision of POCSO, so accordingly the person would be held guilty even though it was consensual.
The maxim Lex iniusta non est lex that means unjust law is no law at all can be analogous to the law that criminalizes individuals even without his/her mistake.
This shows how in the absence of good law, a negative standard is opted and shifts the responsibility of the assault. Ambiguities in legal definitions are sometimes manipulated and cause injustice to some.
In Justice K.S. Puttaswamy (Retd.) v. Union of India , the Supreme Court held that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” That means consensual sex comes under the purview of privacy of an individual and should not be infringed.
Looking at the judgements it can be inferred that even the court believes that a 16 year old is mature enough to know what is right for her. Every individual develops maturity at different ages and that should be respected. The conclusive research proves that there is a need for progressive judgement that shows that Indian society is now truly modernizing and with that laws should also change rather than relying on age old beliefs.
Vantage point of consent
International comparison of age of consent laws reveal diversity with respect to the legal frameworks within which age of consent laws have been formulated. There has been massive variation in the age of consent around different countries, while some countries didn’t have an age of consent they consider marriage being the border line. The laws related to age of consent are there so as to protect children and teenagers from exploitation and for a healthy sexual development. In 76 nations across the world the age of consent is 16 years. In some countries the age of consent is as low as 11.
In Canada age of consent is 16 , the laws are framed such that the teenagers who might be in a relationship even below 16 are protected and older sexual perpetrators would be prosecuted.
South Korea is the country where the age of consent was fixed to 16, the reason given by the Justice Ministry of South Korea was that it was to protect the teenagers from sex crimes at a fundamental level. Many other countries with a reduced age of consent believe that teenager’s sexuality is natural and inevitable, and the best way of protecting them is to educate them rather than through prohibition and criminalization.
Another resolution to the problem could be to set an age gap for any sexual activity. Romeo and Juliet laws can be the best answer to the problem. There are countries where it is legal for a person to have sex with a person under the age of consent provided that there is maximum age gap fixed between those two which is otherwise known as the Romeo Juliet laws. These laws were introduced to prevent individuals engaging in consensual sex when they are close in age to each other or are below the age of consent.
A research by the International Institute of Population Science says that 45% of women in India marry before the age of 18 and 22% of them give birth before attaining the age of majority. In India if a married girl below 18 years have consensual sex with her husband then it not rape. Why this distinction between married and unmarried. There is no law which completely voids any child marriage meaning a girl is mature enough to get married but not to have consensual sex with her beloved partner.
As Thomas Jefferson said,
“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
India should revisit the laws related to age of consent and keep in pace with the changing psychology of the teenagers.
REGIONAL ROOTS AND GLOBAL PERSPECTIVE
India has not only signed but has also ratified the International Covenant on Civil and Political Rights, 1966 (ICCPR). If the age of consent remains at 18 and if teenagers below this age are involved in consensual sex, the boy gets punishment of up to 10 years of imprisonment. There comes a twist where in many situations the girl’s parents forces her to refuse about giving consent and they mould the story in a way to show forced sex and full blame goes upon the boy. If such a situation appears and it is considered to be rape, the boy will be treated as juvenile committing serious crimes.
But according to Article 6(1) of ICCPR which states that, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Such situations are in clear violation of this provision as they have been arbitrarily presented depriving an innocent boy his life. Even if he is given imprisonment, his life becomes a hell after this. The society gets a certificate to assassinate his character leaving him with no other option than attempting for suicide or going into depression.
India is also a part of the United Nations Convention on the Rights of Children, 1990. “Article 5 of the CRC lays stress on the crucial aspect of a child’s evolving capacities. This concept demonstrates the need for the law to realise that growing up is a complex process which is not marked by a single rite of passage but by a series of staged transitions characterised by the acquisition of growing responsibility and self-sufficiency” .
Juxtaposition of realistic and surreal situations
The infamous Delhi rape case which was evident of a heinous crime committed by six men, one of whom was a 17 year old boy mature enough to do such an act but small enough to be given harsh punishment. “There has been an argument that if you are old enough to rape, you are old enough to be hanged and I feel this is absolutely wrong” . Since after this crime, the juvenile age has been lowered down to 16 years by the Juvenile Justice (Care and Protection of Children) Act, 2015 for heinous crimes.
If a person can be treated as an adult for committing a crime why can’t he be considered as an adult while giving consent for consensual sex? Teenagers in today’s era are smart enough to understand what they are doing and considering it to be a crime is not a good option as it is not only the boy who is punished but also the girl. The only difference is that he is punished by the law and her, by the society.
During sexual intercourse, what matters is that both the partners should be willing to do it and if any one of them is not giving consent it should not be done. Here comes the question that whether after 18 years of age boys get the right to decide whether consent is given or not? Logically if a girl doesn’t want it to happen, she will refuse it be it at the age of 18 or 16. But risking the life of one person for the involvement of both is not correct. Either both the partners should be held as offenders or both to be considered as innocent.
-Rukmini Shrinivasan, Data journalist
Consensual sex cases have been converted into rape cases. It is clearly evident from the various data available in the public domain. The above data of consensual sex criminalised by parents is only of one state revealing cruelty done towards the innocent boys. “These crucial issues have been overlooked by our lawmakers. They have sought to criminalise a phenomenon which could be very aptly described as being an essential part of growing up. Thus, in outlawing such an act, the legislators who seek to occupy a conservative higher moral ground actually encourage moral policing which could further lead to harassment of the youth.”
In fact, sociologists and psychiatrists have stressed that we cannot afford to ignore that many youngsters under the age of 18 do engage in sexual activity. Shanta Sinha, chairperson, National Commission for the Protection of Child Rights was quoted as saying that, there are high chances of the Act being misused. Youngsters who are 16 or 17 may want to explore and enter into sexual relationships. They could end up being criminalised.
PRE-EMINENCE OF SEX EDUCATION
In India sex is a topic that is humiliating and immoral to conversee and against our culture. Aaccording to a study, 16% of the women between the age group of 15-19 surveyed are mothers in India. Even the statistics proves the notion wrong that children remain asexual below the decided age of consent and suddenly become ready at the age of 18.
As children become teenagers, their curiosity about sexuality increases and they rely on half-baked information. A platform is needed for children to be educated about themselves, both physically and mentally. A person, who has just entered his /her teens, needs to learn all aspects about psychological and emotional changes that he or she will be going through. There will be emotional needs and it is natural to have relationships, so criminalizing those relationships would not only have an adverse effect on teenagers but also on the society.
According to the United Nations Educational, Scientific, and Cultural Organisation, comprehensive sexual education has positive effects and empowers young people to make informed and healthy decisions regarding their sexuality.
Various researches point out that sex education not only encourages youngsters towards safe sex but also leave a positive impact upon the sexual offenders. Sex education makes teenagers aware that it is fine to identify their desires. Importantly, it teaches one to determine if it is wise to act upon those desires or not.
Teaching in sex education focuses on how to negotiate sexual desires and boundary is anti-rape education. Students learn that boundaries trump desires and that there is a need to honour the boundaries of others.
Whether or not we change the law, however, we have to change sex education to counteract the sexist stereotypes delivered by the media and to reflect the importance of explicit verbal dialog about boundaries and desires before penetration occurs. To do this in tandem with popular education and rape law reform would reinforce the egalitarian norms in constructive ways.
So rather than having an increased age of consent there is a need to have an informed education system.
CONCLUSION
The article altogether tried to explain the different aspects accepted internationally and the viewpoint of nationalists over reducing the age of consent from 18 to 16. It should be widely acknowledged in India that with the passage of time, the activities and beliefs of individuals per se as well as of the society should change. Teenagers get an urge to involve in sexual activities between the age group of 16-18 and thus this natural urge should not convert them to criminals if it is with the consent of both the partners.
The current legislation lacks the constant evolution of human behaviour and undermines the necessity of changing provisions related to teenagers. The orthodox beliefs are still prevailing in the country which is hampering the development of mentality of the coming generations. The laws point towards the ambiguous nature of consent and age group posing a question over the reduced age of Juveniles for criminal activities. Changes in the provisions are required for equality of boys and girls performing consensual sex.