Author Name:   uditmisra

This article deals with the Age of Consent debate with respect to the Sexual Offences Bill, 2012...

Raising the Age of Consent – One step forward, four steps back

On the 22nd May, 2012, the Lok Sabha succeeded the Rajya Sabha in passing the Protection of Children from Sexual Offences Bill, 2012. This admirable piece of legislation has been enthusiastically welcomed by society, for filling in an obvious void in the law. While rape is regarded as a serious criminal offence, under the Indian Penal Code, the IPC, as it stands, is surprisingly silent on a slew of other sexual crimes, grouping them under vague provisions such as “Outraging the modesty of a woman”. Indian Law, up till now has not even distinguished between sexual offences against adults or children, another wrong that has been rectified by the passage of this bill.

However, it has not been smooth sailing throughout. Despite the positive intentions of the bill, an issue had arisen with regards to an amendment made to it at the behest of the Parliamentary Standing Committee on Human Resource Development. This committee recommended that the age of consent be increased from 16, as provided by the Indian Penal Code as well as the earlier, 2001 version of the bill to 18. This move has come under heavy criticism from various quarters, being termed regressive, in a country that claims to be liberal. In this essay, the author shall deal with this particular issue in detail.

Before one discusses the age of consent with respect to sexual acts, one must understand what consent truly is. Black’s Law Dictionary defines consent essentially as a concurrence of wills, while in the Indian Contract Act it is defined as a mutual understanding of something in the same sense. Therefore, the phrase “age of consent” refers to an age where an individual is considered competent to understand the ramifications of partaking in sexual activity and willingly agree to the same.

Thus far in India, it has been specified in Section 375 of the Indian Penal Code, wherein it is provided that sexual intercourse with a woman under the age of sixteen years, with or without her consent shall be considered as rape, thus implying that sexual intercourse with the consent of an individual above said age shall not be punishable. The present bill, however seeks to supersede this provision by redefining a child as “any person below the age of eighteen years”, in line with other enactments such as the Indian Majority Act, 1875, the Indian Contract Act, 1872 and the Juvenile Justice (Care and Protection of Children) Act, 2000.

This proposal has encountered a great deal of resistance and disapproval. For a nation that claims pride in its liberal character, such a provision could only be construed as a step backward into a further regressive state of mind. The Judiciary, as is its right, has raised concerns regarding the rationale behind the government’s move. Additional Sessions Judge Virender Bhat, in his judgement acquitting an individual accused of kidnapping and raping a minor girl, stated-

“In my opinion, the raise in age limit for sex by consent to 18 years would not only be undemocratic and regressive but also a step in the backward direction. Such a move would open floodgates for prosecution of the boys for offence of rape, on the basis of complaints by the parents of the girl, no matter the girl would have been the consenting party and the offer to have sexual intercourse may have come from her side,”

This indeed is a pertinent issue in this debate. India, while liberal, can at times have a very conservative mind-set. The third National Health Survey, 2005-06 states that nearly 43% of women aged between 20-24 had engaged in intercourse before they were eighteen. Although the reality of consensual sexual intercourse between teenagers today has slowly begun to strike the common man, there is a chance that the conservative in him would rather not accept it. The introduction of this legislation would thus pave the way for over-protective parents and teenagers with scores to settle to use the law to prosecute their former partners.

With this raising of the age of consent, the only nations in the world harsher on teenage intercourse are those, which do not recognize any age of consent at all; where any sexual relations outside the confines of marriage are termed illegal and severely punished. On the other hand, if one were to look at legislations around the world with regard to this matter, one would find that a majority of nations in fact recognize sixteen, or even less as the age of consent.

Comparing the current bill with the Sexual Offences Act, 2003 – it’s equivalent in the United Kingdom; one finds only a single core difference. An individual under this act only commits an offence if he intentionally, sexually touches a person and that person is under the age of sixteen. Similarly in the United States, thirty out of fifty States stipulate sixteen as the age of consent.

The drafters of the bill have suggested that including the element of consent within the scope of the bill, and treating children aged between sixteen and eighteen differently, taking them outside the ambit of Clause 3 of the bill would invariably result in vigorous cross-examination of the victim, leading to revictimisation at the hands of the justice delivery process, which would be especially problematic when dealing with children.

However, the author believes that this concern is largely unfounded, as the issue of consent is really all-important in such a scenario. When dealing with individuals between the ages of sixteen and eighteen, it is important to note that they have attained a level of maturity, competent to realize the consequences of their acts. This has been testified to by the international community, as has been mentioned previously. Although Jurisprudence does point towards moving away from the classical trial-oriented approach in cases of sexual crimes and focussing on the conduct of the accused and the circumstances surrounding the offence rather than the conduct of the victim, the legislature must recognize that ignoring the issue of consent completely would only provide a tool of harassment towards minors in cases where neither party objects to the act that has taken place.

In order to circumvent such concerns, the principle of taking a lenient view towards close-in-age relationships has been proposed by many sections. In a recent judgement Additional Sessions Judge, Kamini Lau stated-
“The legal system cannot be used to punish youngsters in love who are at the verge of attaining majority and this court cannot ruin their lives by taking a hyper- technical view, especially so when the age gap between these youngsters is within acceptable limits and does not reflect an exploitative coercive situation,”

The same principle is also applied in various degrees, in different countries across the world. Canada applies this principle in the form of two exceptions. Although the age of consent is 16, a minor aged 14-15 may engage in intercourse with a partner less than five years older, and a minor aged 12-13 may engage with a partner less than two year older. Similarly in Finland, the law states that the act will not be punished if “there is no great difference in the ages or the mental and physical maturity of the persons involved". In the United States, a set of laws known as “Romeo and Juliet laws” have been passed in some states, which serve to reduce or eliminate the penalty of the crime in cases where the couple's age difference is minor and the sexual contact is only considered rape because of the lack of legally recognized consent. Connecticut, Indiana and Texas have so far enacted these provisions.

A second model too exists, with regard to avoiding the problem raised by the issue of consent. Nations such as Spain and Argentina, with the lowest age of consent in the world at 13, have enacted special provisions in order to protect minors against sexual crimes. The Spanish Penal Code provides against deceit being used in order to gain the consent of a minor, while the Argentine Penal Code applies strict restrictions for sexual activities with adolescents between the ages of 13-16.

Thus, the author believes that with viable, tried and tested alternatives available to address the problem the legislature postulates, it does not need to resort to such arbitrary and draconian provisions which indeed have more shortcomings than merits. A belief that it is too early for those between 16 and 18 to engage in intercourse is well-founded, however criminalising all consensual sexual activity in a conflicted social environment where teenagers are becoming increasingly more aware of their own sexuality can have terrible consequences. Virtue cannot be imbibed through legal provisions; it should instead be left to parents and teachers to impart the requisite knowledge. Compulsory sex education is the most necessary thing at this point in time, rather than “insensitive” restrictions on the free choice of the youth.
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# See Department-Related Parliamentary Standing Committee On Human Resource Development Two Hundred Fortieth Report On The Protection Of Children From Sexual Offences Bill, 2011, ¶6.5 (hereinafter Report).
# Black’s Law Dictionary Free Online 2nd Ed., Definition of Consent, July 17, 2012, available at http://thelawdictionary.org/consent/ (Last visited on July 17, 2012).
# Indian Contract Act, 1872, §6.
# Indian Penal Code, 1860, §375(6).
# Protection of Children from Sexual Offences Act, 2012, §2(d).
# State Vs. Sandeep Paswan, No. 8 of 2012 (Delhi S.C.) (Unreported).
# Third National Health Survey, 2005-06, July 18, 2012, available at http://www.measuredhs.com/pubs/pdf/FRIND3/00FrontMatter00.pdf (Last visited on July 18, 2012).
# Sexual Offences Act, 2003, §9(1)(c) (U.K.).
# Report, supra note 1 ¶6.9.
# Id., 9.
# Supra note 6.
# State Vs. Rattan Lal, No. 162 of 2011 (Delhi S.C.) (Unreported).
# Tackling Violent Crime Act, 2008 (Canada).
# Criminal Code of Finland, §6(2) (Finland).
# Spanish Penal Code, §183(1) (Spain).
# Argentine Penal Code, §120 (Argentina).

The  author can be reached at: uditmisra@legalserviceindia.com

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