10th October 2023 (9 Topics)
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Place the Child at Centre
Context:
Recently, the Law Commission’s recommendations on age of consent sidestep key question of how to protect the young from sexual abuse, while ensuring they are not punished for consensual sexual activity with peers.
Critique of the Law Commission's Recommendations
- Missed Opportunity for Reform: Law Commission's 283rd report advises against altering age of consent under POCSO Act and calls to review age criteria for consent, especially in cases of de facto consent in statutory rape.Increase from 16 to 18 years in age of consent leads to unintended consequences for adolescents.
- Mandatory Minimum Sentences impact Families: POCSO and IPC provisions mandate 10 years for statutory rape, regardless of consent.
- Missing Global Perspectives: Report examines age of consent approaches in various countries with lower ages.
Flaws in Proposed Mitigation Measures
- Limited Scope of "Close-in Age" Exception: Proposed exception applies at sentencing, not as a defense in cases of consensual activity with minors.
- Ambiguity Surrounding "Tacit Approval": Introduction of "tacit approval" in place of "consent" lacks clarity and definition.
- Concerns about Judicial Discretion Criteria: Criteria like social/cultural background changes may unintentionally reinforce traditional norms.
Balancing Protection and Autonomy for Youth
- Universal Concern for Protection: POCSO aims to safeguard youth from sexual abuse, a universally recognized need.Equally important is shielding them from undue shame, punishment, and incarceration for age-appropriate exploration.
- Child-Centric Approach and CRC Guidelines: Convention on the Rights of the Child emphasizes differential protection for those under 18, respecting their evolving capacities.
- Criminalization's Disproportionate Impact: Data suggests criminalization disproportionately affects marginalized and economically disadvantaged groups.
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