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Interpretation of POCSO Act to support Consensual Relationships

  • Published
    14th Nov, 2022
Context

In a Judgement by the Delhi High Court, it remarked that the intention of the Protection of Children from Sexual Offences (POCSO) Act was to protect children below the age of 18 from sexual exploitation and not to criminalize consensual relationships between young adults.

About
  • The POCSO Act, 2012 was enacted to safeguard the children’s interests. The POCSO Act, 2012 tends to protect the child from sexual offenses.
  • The act is gender-neutral and recognizes both girls and a boy as a victim of sexual violence.
  • This law defines a child as any person below the age of 18 years.
  • Forms of sexual offense: It defines different forms of sexual offenses including
    • penetrative and non-penetrative assault
    • sexual harassment
    • pornography

What is the issue?

  • Since the consent of a “child” is immaterial, consensual sexual intercourse with or among adolescents is treated on par with rape.
  • With the enactment of POCSO, a number of young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
  • It also impacts the delivery of justice as these cases constitute a large burden on our courts, and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.
  • There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative

Few Other Interpretations:

  • Other than Delhi High Court, Punjab and Haryana High Courts have also seen the issue of the age of consent as a cause of the unusual arrest of older adolescents as accused of Rape.
  • Karnataka High Court quashed the criminal proceedings under IPC and observed that if the court would shut its doors to the couple who are married then the entire proceedings would result in a miscarriage of justice.

What is the purpose of the Minimum age of sexual consent?

  • The minimum age of sexual consent is the age from which someone is deemed capable of consenting to sexual activity.
  • The objective of the minimum age of sexual consent is to protect adolescents from sexual abuse and the consequences of early sexual activity on their rights and development.
  • There is a possibility that young adolescents may be lured into sexual activity by older adults making those from disadvantaged settings.
  • The underage sexual activity presents a number of risks in relation to sexual and reproductive health, including unwanted or early pregnancy and exposure to sexually transmitted diseases.
  • Early pregnancy and motherhood in many cases are, in turn, primary determinants of school dropout for adolescent girls.

What are the options available to victims in such matters?

  • The only relief available to the couple is to urge the High Court to quash the case by using its inherent power under Section 482 of the Criminal Procedure Code, “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Capability to give “free consent”:

  • It has been found in most cases in the age group of (16-18 years) that girls turn hostile because the sexual act was not against their will and they were not allured or induced into indulging in the act.
  • It has also been observed that due to a change in the sociocultural environment in recent decades, teenagers are sensible enough to understand the implications of their conduct.

Provisions of the laws relevant to the situation:

  • Our laws do not consider any action by a child under the age of 7 an offense.
  • Even if the child is between the ages of 7 and 12, but has not attained sufficient maturity to judge the nature and consequences of his conduct, his act would not be considered an offense.
  • After that, it is implied that a child above 12 years of age develops a sufficient understanding of the implications of an offense.

Changing scenario:

  • With the changing sociocultural scenario, the assumption of attaining maturity may also be applied in cases of granting “free consent”.
  • One has to note here, that the Child Labour (Prohibition and Regulation) Act defines a child as a person under the age of 14, and, therefore, those above 14 can legally be employed in otherwise prohibited occupations and processes.

Global Scenario:

  • Many countries have 16 years or below that as the age of consent.
  • Most of the American states, Europe, Japan, Canada, Australia, China, and Russia fall into this category.
  • Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.
Way Forward
  • There is a need to define consensual sex as a separate category of crime under a more liberal provision.
  • Taking out such cases from the purview of the penal law will also help the police divert its attention toward more serious and complex cases.
  • According to the National Crime Records Bureau about half of the POSCO Act cases fall in the category of the 16-18 years age group. Removing cases of consensual sex under this category can help us get a better picture of sexual assault cases.
  • There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.
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