This paper deals with the age of consent laws around the globe and the lack of coherency in the Indian laws with regard to the same. The ambiguity around age of consent has catalysed the tussle between the paternalistic society defining contours of sexuality and the emerging liberal society propounding freedom of sexuality. Historically it is known that sexual intercourse before marriage is considered as a sin and also a justification for child marriages. In distinct with the issue of preventing sexual exploitation of a girl child, this paper analyses the modern view of freedom of sexuality among adolescents which has gained momentum. But the hurdle to this freedom is the Criminal Law (Amendment) Act, 2013 along with Prevention of Child Sexual Offences Act, 2012, which criminalises intercourse with a girl below the age of 18 irrespective of it being consensual.
This paper analyses the transformed sexual decision making especially among adolescents outside the bond of marriage and the need for compatible laws. In the 21st century with the influence of media and modern technology, sexual maturity is redefined. Adolescents have the curiosity of exploring their sexuality and therefore consensual intercourse before marriage is widely observed. But such behaviour among adolescents is criminalised under the veil of protecting them from themselves. This argument finds justification in harmful effects to health of adolescents because of pregnancy and other issues relating to harmony in society. However criminalisation of adolescent sexual behaviour implicitly promotes child marriage, as it is not void-ab-initio but merely voidable and it is the only option for the parties to elude stigmatisation by society. It is also not possible to educate the adolescents with regard to safety measures during intercourse and thereby making them vulnerable to unexpected consequences.
Criminalisation is also a tool to augment parental power and thereby to suppress the sexuality of adolescents. This paper argues that coherence in laws is a solution to these problems by way of balancing sexual rights and protection from sexual exploitation and health hazards, of adolescents. The final section of this paper constitutes certain recommendations to untie the Gordian knot.
Age of consent has always been considered to be a tool defining the aspects surrounding women safety. The history of the age of consent inevitably invokes the patriarchal society in India wherein even sacred texts like the Smriti which stated that woman are inherently evil and is in constant need of discipline.[i] The concept of child marriage and the ritual of garbhadhan turned the female gender into a legitimate instrument of her husband’s sexual gratification and a medium of procreation.[ii] In the present situation there was a dire need for socio-legal reforms with the main purpose of protecting girl child from health hazards because of pregnancy and other problems.
However reformers confined their demand only with respect to the health issue but did not dare to challenge the complete patriarchal society.[iii] History has been ambiguous with regard to many issues by virtue of misinterpretation and contradicting literature. So interpretation of the present situation is to be done considering the present situation only.
The British invasion of India was proclaimed to be a civilising mission in a barbaric society especially with regard to personal laws. One such area of the personal law which needed immediate attention was the age of consent. The concept of age of consent in the colonial period was marked by the threefold tussle between the Indian male elite, the imperialist and the British feminists. Age of consent has always been considered to be a tool defining the aspects surrounding women safety. During that period the voice against paternalistic ethos was gaining momentum in England and the proponents of the same took India as a place for empirical study and thereby emasculate Indian women of their miserable life. The grounds for reform with regard to age of consent were prostitution and child marriage in England and India respectively.[iv] The Victorian notions of domesticity and sexually restraint were sought to be imposed on Indian society as a move towards empowerment of women.[v] The Indian upper class, driven by a stratified society was very much concerned about the colonial intervention into personal laws of Indians.
To these problems of child marriage and prostitution raising the age of consent was believed to be a solution which would bar sexual access to younger women.[vi] The incidents of Rukumbai and Phulumonee strengthened the movement against child marriage and this culminated in the passing of the Age of consent Bill in 1891.[vii] This legislation increased the age of consent from 10 to 12. Gradually with greater strength to feminist movement the age of consent moved towards the normative age of majority and stood at 16 for almost a decade before 2013. But with the passing of the POSCO Act, 2012 and the Criminal Law Amendment Act, 2013, the age of consent has been further increased to 18. The present paper deals with the consequences of this move by the State especially on adolescents.
Who is an adult?
Biologically an adult is a human being or other organism that has reached sexually maturity.[viii] Legally an adult is a person who has crossed a particular age of majority fixed by the law with respect to conferring legality on his actions and presumption of independence, self-sufficient and responsible. There is wide difference between these two definitions with regard to emergence of adulthood. The former considers sexually maturity as the deciding factor whereas the latter is focused on the sociological aspect of adulthood. When it comes to adolescent sexuality, the sociological aspect is with regard to the capability of adolescents to make a rational decision. In a country like India wherein adolescent sexual activities are escalating, the contentious issue is whether adolescent especially the later adolescents (15-18) are capable of making sexual decisions?
What has changed? What is the shift?
The early appearance of Puberty by virtue of the mass media content is considered as a driving force behind greater adolescent sexuality.[ix] According to the theories proposed by Stattin and Magnusson, girls reaching Puberty at or before the age of 11 showed more sexual activity compared to later maturing girls. This results in greater intimacy between early maturing individuals.[x] This connection between puberty and sexual activity reflects the interaction between the biological changes (hormonal) and psychological factors.[xi] The catalysing aspect of adolescent’s proximity to intimate relationships is the influence of media. In developing countries like India, the adolescents are growing up in circumstances that have evolved to have greater access to formal education especially technical and computer skills and exposure to new ideas through media, telecommunications and other avenues.[xii] With 200 million internet users, India is the third largest nation for internet users.[xiii] Moreover the users in India are significantly younger compared to emerging economies.[xiv] Mass media and education are considered as the foremost agencies involved in shaping the sexuality of adolescents.[xv] Around 90 percent of adolescent say that they are informed of sex and reproductive health by media and also by their peers.[xvi] Further exposure to sexually implicit content in the media makes adolescents acts as a catalysing agent to initiate sex.[xvii] The greater role of the media is defining the nature of adolescent sexuality is also due to the reluctant parent-child interaction on this subject. It is observed that, in India parents rarely provide information and support regarding biological and physiological changes in adolescents and the meanings attached to these changes.[xviii] Though media and peers are informal sources of information regarding sexuality but they are prone to be highly misunderstood.[xix] Therefore misunderstanding can lead to unfortunate consequences involving exploitation, abuse, mental health problems and vulnerable to HIV/AIDS.[xx] In contrast with the western society where parent-child correspondence with regard to child’s sexuality is well established, there is the awkward silence with issues relating sexuality and reproductive health.[xxi]
The traditional family setting in India has also witnessed transformation. Weakening of social support from kinship, movement of women empowerment, exposure to media, increasing competitive demands of the market economy and higher standards of achievement are the factors driving the changes in the family dynamics.[xxii] With regard to adolescent sexuality, the percentage of adolescents involved in sexual activities is around 35 per cent with boys having a greater inclination towards premarital sex than girls, whereas more than 40 percentage of the girls in tribal areas are found involved in premarital sex.[xxiii] Studies have shown that premarital intercourse among the urban adolescents is on the rise especially in metropolitan cities as that of Delhi wherein about 60 percent of the secondary school boys of and lesser percentage of girls of age ranging 16-18 are involved in sexual activities.[xxiv]
The relationship dynamics in India are also changing. The age old belief of intimacy as the post-marriage phenomenon no longer exists. Casual relationships are emerging as one of the significant kinds of relationships in India.[xxv] These casual relationships have short duration with physical intimacy and lack of commitment.[xxvi] Interestingly the 50.4 percent and 22.4 percent of the rural male and females respectively are involved in premarital sex than the urban counterparts.[xxvii] The average age of sexual debut for individuals reporting premarital sexual activity is 15.9 years for women and 17.4 years for men.[xxviii] Therefore in a conservative society like India where parental supervision and regulation of minors actions are at greater level, adolescents do find opportunities to interact with others and form friendship and relationships and also indulge in sexual behaviors and experiences.[xxix] The above statistics prove that sexual intimacy bereft of marriage is not a taboo anymore and India is moving with the modern principles of individuality with emphasis on individual rights and privacy within four walls.
In a country like India where slums are a symbol of extreme poverty, unregulated sexuality has made its inroads here too. Slum life makes interaction between opposite sex inevitable.[xxx] Privacy is compromised in cramped slum settings which makes chastity vulnerable to sexual desires.[xxxi] With less emphasis given on formal education, which is common in slums and rural areas, adolescents indulge in sexual activities at an early age.[xxxii] Moreover adolescents also acknowledge the fact that they take advantage of the lapses in parental control in a slum to explore their bodies and satisfy their sexual needs.[xxxiii]
ADOLESCENT Evolving Capacities:
From the present perspective of the state towards childhood which signifies that below a particular age i.e., 18 any person is devoid of decision making capacity. The State fails to realise that a child of 15 or 17 years of age is matured in many sense as compared to a child of 7 or 10 years of age. The mind-set of the state needs to be transformed from the premise that its earlier presumption of childhood sexuality is not an epidemic but rather a cultural revolution[xxxiv] similar to homosexuality. Therefore the state needs to take a relook at its legal framework in addressing the issues relating to adolescent sexuality.
Childhood is an evolutionary process marked by myriad developments. As observed by Kieran Walsh ‘growing up is a complex process, 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’.[xxxv] This evolutionary process is also recognised by the UNCRC in its article 5 as ‘evolving capacities’. The evolving capacities are at dispute when the childhood process comes to the adolescent stage. Adolescents in the modern world are considered to be biologically matured, legally developing full capacity and engaging in psychologically advance decision making.[xxxvi] The scientific grounds for proximity of adolescent maturity to that of adults are provided by Jean Piaget. According to him there involves a staged development of childhood, and the initial stages convey that children are inferior to adults but when going through the final stages of development there is least scope for distinction between adolescents and adults.[xxxvii]
With regard to the adolescent’s relationship with parents which is renegotiated, the important factor is the process of identity formation and also involves individuation.[xxxviii] Here the adolescents move beyond the identity organisations they had as children by synthesizing elements of their earlier identity into a new whole, one that bears the personal stamp of their own interests, values and choices.[xxxix] Further experience in making decisions for themselves gives them the feedback about their strong and weak points and they are less dependent on others’ judgments in evaluating themselves.[xl]
The intellectual changes in adolescents are considered to be a consequence of an active constructive process by which the individual gives meaning to experience.[xli] The adolescent stage is also marked by the differentiation in ‘me’ and ‘not me’ which eventually leads to defining the novel aspects of their surroundings and of their SELF.[xlii] The biological changes involving puberty develop the bodies and feelings of adolescences similar to mature adults and thereby leading to change in expectations by the adolescents and also by their parents.[xliii] The intellectual changes also contribute towards forming newer perspectives by adolescents through which they view the world and their relationships with others.[xliv] These all developments are also marked by the demand for greater autonomy by adolescents. Autonomy involves independence and being responsible for one’s actions.[xlv] But the prerequisite for achieving autonomy is a process termed as individuation wherein they rebuild their psychological structure.[xlvi] It also involves making decisions for themselves and by living with the consequences of those decisions.[xlvii] Adolescents as they mature cognitively, the mental functioning process becomes analytic, capable of abstract thinking leading to articulation and independent ideology. These are truly the years of creativity, empathy, idealism and with bountiful spirit of adventure.[xlviii]
The prejudicial approach of the state is the important aspect in this case which is at loggerheads with the right of sexuality of adolescents. The categorical approach of the society with regard to certain behaviours as harmful or abnormal is a proof of presence of certain ideological orientation under the backdrop of a cultural model of sexuality rather than scientific knowledge.[xlix] The supposed abnormality of sexual behaviours during the latency period is dragged up to late adolescence associated with conception of sexual innocence of children.[l] This generalised approach of the society with regard to sexuality of minors irrespective of their age and changed societal setup is detrimental to the rights and interests of sexually active adolescents. The need for age of consent reforms in India can be ascertained from the prevalent models in the Western society which have acknowledged the evolutionary character of human life. The right to sexuality in these parts of the globe was recognised by virtue of the transformation in the cultural map of sexuality.[li] This transformation constituted society marked by traditional reproductive sexuality with patriarchal ethos to the one marked by non-reproductive sexuality, centered on happiness and desire.[lii]
The Harm Principle: where the harm lies?
Another Criminological theory justifying criminalisation of acts which contradicts the criminalisation of sexuality by minors especially when it is consensual is the harm principle. The foundation of this theory lies on the premise that harm should be the prerequisite for criminalising any conduct. Therefore it is contentious issue as to whether the consensual sexual activity between consenting adolescents is harmful to the parties and society at large. However sexual behaviours of adolescents might cause harm to themselves. The need for reference to harm principle stems from the transformation of the traditional patriarchal notion of sexuality to the modern approach marked by desire and happiness.[liii] With the changed circumstances which distance themselves from taboos subjugating sexuality of minors as immoral, there arises a need for a practical approach in deciding whether there is any harm caused due to adolescent’s sexual activities. In a pluralistic country like India where myriad cultural ethics are at horns with each other on different social issues, the sexuality of adolescents is a contentious issue which sometimes gets a communal colour. The taboos based on ideological commitments in the backdrop of moral and cultural standards presume harm in sexual acts of minors. But in the modern society wherein rationale for any position is pre-requisite, the harm principle emanates as a viable approach in deciphering the credibility of any act on the basis of the harm caused by the same. Further the principle can be used to balance the individual rights and the taboos in imposing of legal prohibition for any act on the basis of harm caused.
Indian Scenario and the viability of liberal mind-set – can India afford it
The Indian Paradox:
With the passing of the Protection of Children from Sexual Offence Act, 2012 (POSCO) and Criminal Law Amendment Act, 2013, (CLA 2013) the government has pushed the legal age of consent to sexual activities to 18. What are the repercussions?? Can India afford to lower the age of consent or maintain the status quo?
The historical analysis of sexuality in India gives a distorted picture about this concept by virtue of diversified society marked by myriad culture and beliefs. In the ancient period, sexuality was honoured by considering it as a science by the first of its kind literature i.e., Kamasutra (Aphorisms of love. Kamasutra depicts the three pillars of the Hindu religion which include Dharma, Artha and Kama representing religious duty, worldly welfare and sensual aspects of life respectively.[liv] Therefore the prominence given to sexuality especially being the foremost region of the world to do so, India’s notion of sexuality is bereft of illusions. But with the advent of foreign empires which resulted in insecurity to females and the imposition of Victorian notions of sexuality has greatly influenced the transformation of Indian notion of sexuality towards the world of apprehensions. With escalating exploitation of women especially young girls, the need to increase the age of consent was inevitable and it reached 16. But the contentious issue arose when the government decided to further push the age of consent to 18 by virtue of POSCO, 2012 and CLA, 2013.
The Criminal Law (Amendment) Act, 2013 amended Section 376 of IPC to increase the age of consent to sexual intercourse to 18. The Child Marriage Act, 2006, though prohibits child marriage, but does not declare it void, but only voidable. However the Act is silent about the sexual relationship of persons below 18, but confers legitimacy to children born out of child marriage. As per the exception of sec. 376, sexual intercourse with one’s wife above 15 years cannot be termed as rape, even if there is no consent. However POSCO Act, 2012 passed with an intention to protect children from child marriage, which defines “child” as a person below 18 years, criminalises sexual assault on a child even by her husband by virtue of sec. 9(n). Further CLA, 2013 under sec. 42A of POSCO Act, 2012 provides that the provisions of POSCO Act, 2012 would override the IPC provisions in matters of inconsistency. The fundamental issue here is the absolute restrictions of consensual acts especially among adolescents.
The criminalisation of adolescent sexual act especially late adolescents (16-18) will drive these acts underground[lv] as it is known that sexual acts are part of development which will not be deterred by criminalising the same.[lvi] Further the significant repercussion of higher age of consent is that any sexual act between adolescent below the age of 18 would indirectly give scope to child marriage. The conservative parents would be empowered by this law to take legal action against the person eloping with their daughter irrespective whether the relationship is consensual. Even the judiciary has noticed the need for change, when the Delhi High Court in the case of State v. Krishna Rai Chaudhary refusing to send a boy of 18 years old to jail for eloping with a girl with consent, observed that “It is time for legislators to have a rethink on the age of consent keeping in view the changing social attitudes and social sensibilities.” In another case considering the interpretation of the amended provisions of the IPC and POSCO, the court observed that
“I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the State and no individual below 18 years can be allowed to have pleasures associated with one’s body. In my opinion, it would neither serve the object of present enactment, nor the purpose of criminal law to hold the accused guilty on the ground that he had sexual intercourse with a girl below 18 years.”[lvii] Further in another case the court observed that “the act of falling in love cannot be punished in the way other criminals are punished.”[lviii] In another Delhi Court Judgement the court considered the realistic consequences of a higher age of consent, when it stated,
‘The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their sin is that they fell in love.’[lix]
Therefore the courts have been vocal enough in acknowledging the evolved social standards especially with regard to adolescent sexuality, and know it is expected from the legislature to do the same. The need to lower the age of consent is inevitable to avoid flooding of habeas corpus petition by the disgruntled parents when their daughter’s desire is against their wishes. Even the Law Ministry in its report has recommended the lowering of age of consent to 14.[lx] Therefore considering the above analysed society which has witnessed evolution in terms of adolescent’s maturity it is highly desirable to lower the age of consent to 16. The Young Man’s defence should be incorporated in the age of consent laws wherein the age span between the two adolescents (one of them being in the age span of 14 to 16) should not be more than four years. Further with regard to legal age of marriage, a provision requiring permission from the courts to enter into marriage of persons above 16 and below 18 should be introduced, so as to enable the courts to permit such marriage after scrutinising the consent factor involved in the relationship.
[i] Meera Kosambi, Girl-Brides and Socio-Legal Change: Age of Consent Bill (1891) Controversy
https://www.jstor.org/stable/41498538 (Last time Visited 15th Dec. 2015).
[iv] Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women’s Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available athttps://scholarship.law.ufl.edu/facultypub/17.
[vi] Varsha Chitnis supra note 4.
[x] Brown, Halpern and L’Engle, Mass media as a sexual super peer for early maturing girls 420.
https://teenmedia.unc.edu/pdf/JAH_1.pdf (Last time Visited 14th Dec. 2015).
[xiii] Indian Internet Users to Surpass US in 2014,(Aug. 12, 2014) https://www.thehindu.com/sci-tech/technology/internet/google-india-indian-internet-users-to-surpass-us-in-2014/article6308559.ece
[xiv] India is now Third largest Internet User after U.S. and China (Aug. 29, 2014) https://www.thehindu.com/sci-tech/technology/internet/india-is-now-worlds-third-largest-internet-user-after-us-china/article5053115.ece
[xv] Adolescents in India: A Profile 65, UN System in India, https://novaspecialtyhospitals.com/files/resources_pdf/UNFPA%20India%20Report-Adolescent%20Health%20and%20Development.pdf (Last Visited 10th Dec. 2015).
[xvi] Carey Leigh Mittermeier, Premarital Romantic Partnerships Among Youth In India and Intimate Partner Violence: Filling The Knowledge Gaps, 21 https://d-scholarship.pitt.edu/20891/1/mittermeiercl_etdPitt2014.pdf (Last Visited, 11th Dec. 2015).
[xvii] Lt. Col R. Shashi Kumar and Ors. Interaction of media, sexual activity and academic achievement in adolescents Medical Journal Armed Forces India 69 (2013) 138 E143, 139.
[xviii] Supra note 16 at 21.
[xix] Id. at 7.
[xx] Id. at 7.
[xxi] Sunil Mehra, Sexual Behaviour Among Unmarried Adolescents In Delhi, India: Opportunities Despite Parental Controls, 14 (MAMTA).
[xxii] Supra note 16 at 9.
[xxiii] Id. at 65.
[xxiv] Id. at 66.
[xxv] Mittermeier, supra note 17 at 18.
[xxvi] Id. at 19.
[xxvii] Id. at 31
[xxviii] Id. at 21.
[xxix] Mehra, supra note 22 at 10
[xxx] Id. at 15.
[xxxi] Mehra, supra note 22 at 10.
[xxxii] Id. at 15.
[xxxiv] Jamie Couso, Sexuality of Minors and Criminal Law, 13. https://www.law.yale.edu/documents/pdf/sela/SELA09_Couso_Eng_WV.pdf (Last Visited 12th Dec., 2015).
[xxxv] Kieran Walsh, The sexual rights of children and age of consent, 5.
[xxxvi] Id. at 6.
[xxxviii] Nancy J. Cobb Adolescence: Continuity, Change and Diversity 189 (4th ed. Mayfield Publishing Company 2000).
[xli] Id. at 178.
[xlv] Id. at 180.
[xlvi] Id. at 181.
[xlviii] Adolescents in India: A Profile 11.
[xlix] Couso, supra note 37 at 17.
[li] Id. at 8.
[liii] Id. at 14.
[lvii] Anon, “Consensual sex with minor not a crime, Delhi court says”, Times of India, 26 August 2013, https://articles.timesofindia.indiatimes.com/2013-08-26/delhi/41454391_1_minor-girl-15-year-old-girl-18-years
[lviii] ‘Love not crime’, teen’s lover freed, https://timesofindia.indiatimes.com/city/delhi/Love-not-crime-teens-lover-freed/articleshow/10121184.cms (Sept. 26, 2011).
[lix] Jitender Kumar Sharma v. State and Another, 2010 (171) DLT 543.
[lx] Law Ministry wants age of Consent to be reduced to 18, https://www.dnaindia.com/india/report-law-ministry-wants-age-of-consent-to-be-reduced-to-14-1808687 (Last time visited 13th Dec. 2015).