Age Of Consent: The Gray Area Between POCSO and Consensual Sex

In India, any sexual contact with person under 18 is classified as rape, regardless of whether it is by mutual consent. There have been calls from various stakeholders in the country to decrease the age of consent to 16 years.

By Puran Choudhary , 18 Mar 2023

Almost a decade ago India introduced the Protection of Children from Sexual Offences (POCSO) Act in 2012 which criminalises all sexual activity by children under 18. Many adolescent boys and girls in consenting relationships are now finding themselves on the wrong side of law. Increasingly, there have been calls from various stakeholders in the country to decrease the age of consent to 16 years.

A study conducted by Enfold Proactive Health Trust, in three states, Assam, Maharashtra and West Bengal found that of the total 7,064 POCSO judgments registered between 2016 and 2020 and available on e-courts, 1,715 cases (24.3 percent) constituted ‘romantic’ cases.

Romantic cases were cases in which either the victim admitted to a relationship with the accused or where a prosecution witness stated that the relationship was romantic or where the court itself concluded that it was romantic and were registered under the POCSO Act as all the victims were below the age of 18 years.

“We really don’t think of adolescents as sexual beings in the first place, and we only think of them as persons to be protected from sexual exploitation,” Shruthi Ramakrishnan Senior Legal Researcher at Enfold Proactive Health Trust who was also part of the ‘Romantic’ Cases under the POCSO Act and Implication of the POCSO Act in India on Adolescent Sexuality told the MOJO Story.

Recalling an incident from their research days, Shruthi spoke about a special case that really stood out. In Maharashtra a young couple went to the hospital for a pregnancy checkup. The hospital staff enquired her age and the girl said it was 18, no proof was demanded and over the months the girl delivered.

“After six months there was an inspection by the Central Adoption Resource Authority which revealed that the girl’s Aadhar Card reflected that she was 16 years old when she gave birth,” Ramakirshnan added.

By the time the case was in court the girl refused to testify against her husband and stated that the age on her Aadhaar is incorrect. According to the legal standards, Aadhar is not a proof of age; only birth certificates or school records are. The husband was therefore acquitted by the court. On an average such cases go on for two to three years, Ramakrishnan confirmed.

Explaining the plight of the family Ramakirshnan added that, “Suddenly you’re seeing your husband being arrested on a charge of rape and this could possibly end up in minimum mandatory imprisonment of 20 years. Even if the judge wants to take a lenient standard, the most lenient he can go is a 20 year sentencing period.”

Ramkrishnan also added how the system overlooks this fact of teenagers being sexual beings and calls it a ‘social blindspot’ in Indian society. “I think it is sort of acceptable that underage girls are getting married and having sex within those institutions. But, to think of underage minors having sex outside of the institution of marriage is definitely not spoken of and conceived,” the legal researcher said.

Enfold Proactive Health Trust is based out of Bengaluru, Karnataka and conducts research on the implementation of child protection laws, prevention of child sexual abuse and gender empowerment.

The Law As A Tool

The report highlighted that informants in 80.2 percent of ‘romantic’ cases were parents and relatives of the girls who did not approve of the relationships. The girls themselves were informants in 18.3 percent of the cases. The takeaway from the research is also that POCSO cases are frequently filed as a tool of retribution by the girl’s family.

Ramakrishnan highlighted that when parents disagreed with the girl’s choice of a partner, they used POCSO as a tool.

“Parents resort to filing criminal complaints when they are unable to dissuade their daughters from engaging in relationships they do not approve of or where these relationships cross caste and faith lines. This trend is also visible in the application of the Prohibition of Child Marriage Act, 2006 (PCMA) where evidence is pointing towards increasing use of these laws by parents against self-arranged marriages,” said Ramakrishnan.

She further added that the bigger question here is what is the government doing about such cases and why are they not being conscious of the matter. “Is this making them (the girls) safer or is it just making it worse for them? Once they come into the criminal justice system there is no going back. There are no settlements or compromises. The entire criminal justice system has to be duly followed despite the girl consensually agreeing to having sex.”

Romantically Acquitted

Acquittals were the norm in such ‘romantic cases’. Out of the 1,715 cases 1,605 (93. 8 percent) were acquitted of all charges under the POCSO Act. The report also mentioned that convictions were an exception and only 106 cases of the total were charged.

The Chief Justice of India at the two-day session of the National Stakeholders Consultation on the Prevention of Children from Sexual Offences (POCSO Act) urged the parliament to reconsider the issue of ‘Age of Consent’. He spoke about the difficulties faced by judges in trial and appellate courts in hearing cases of consensual sex which involved adolescents.

The CJI’s statement echoed the opinions of the Karnataka High Court, Madras High Court, Justice Verma Committee, and several experts and numerous child rights NGOs.

According to the Census of India report 2011, there are more than 253 million adolescents in the country making India home to the largest adolescent population in the world. Public health surveys have indicated that a significant proportion of Indian teenagers are sexually active.

According to the National Family Health Survey-5, 2019-21 (NFHS-5), 10 percent of women in the age group of 25-49 years had their first sexual intercourse before the age of 15, and 39 percent had their first sexual intercourse before the age of 18 years.

Many reports in the past have highlighted that sexual behaviour in adolescents, from the onset of puberty, is natural, normative, and an integral part of adolescent development and their transition into adults.

Implications Of The POCSO Act

The report stated that, “The blanket criminalisation of consensual sex among or with adolescents in gross oversight of their sexual development, bodily integrity and autonomy,” which undermines their fundamental right to life, privacy, and dignity.

Ramakrishnan further explained that such cases cause stigma within the community despite their acquittal. “ Boys may have to spend some time in jails and lockups while they are tried as accused. Girls are also not left off the hook as many parents don’t want to take them back,” she said.

Further emphasising on the repercussions of the Act, Ramakrishnan highlighted that some girls are not willing to go back home so they are institutionalised within state-run homes which are meant for children without parental care and children in need of care and protection and now these places are largely being used to detain girls in romantic relationships.

The entire applicability of the POCSO Act hinges on being able to prove that the girl is a minor. This poses as a major problem that “age is not such a black and white criteria in India” as Ramakrishnan mentioned.

A large number of the population do not have basic age related documents, so for them to prove that they’re no longer a minor is a huge hassle. Many times they don’t have the requisite documents and in a lot of cases the parents themselves don’t know the date of birth, She added.

“Romantic” cases overburden an already-strained criminal justice system that consumes significant time of the judiciary, police, child protection system, forensic science laboratories, and medical practitioners. In 2021, 92.6 percent of POCSO cases were pending.

Consent In Other Countries

A number of countries have set their age of consent between 14 to 16 years. Children at the age of 14 can consent to sex in Germany, Austria, Hungary, Italy, and Portugal. In the West, England and Wales, it is capped at 16 years. In the USA , the majority of the states have a legal age of consent as 16 years.

The World Health Organisation (WHO) defined ‘adolescence’ as the period between 10 and 19 years of age and for South-East Asia Region young people fall between 10 and 24 years of age. However, Ireland, Turkey, and the Vatican do not agree and have set their age of consent at 17,18 and 18 years respectively.

Taking a look closer to home, in Bangladesh sexual intercourse without consent when she is under 16 years of age is defined as rape. The age of consent in Sri Lanka is 16 years, regardless of gender or sexual orientation. Japan has set the age of consent at 13.

In countries like Libya, Afghanistan, and Saudi Arabia, Pakistan all of which are highly conservative require individuals to be married before they can legally have sex.

Ramakrishnan strongly advocated that a balance needed to be struck between protection and autonomy of adolescents in India. The report also reflected a similar view where a legal amendment was proposed to decriminalise consensual sexual acts involving adolescents above 16 years, while also ensuring that all children below 18 years are protected from sexual offences under the POCSO Act.

Lastly, adolescents and teenagers need to be provided with comprehensive sex education and should have the freedom to access confidential sexual and reproductive health services despite being underage.