INTRODUCTION

Consent is a nuanced concept, especially when viewed in the context of adolescents, and when the question arises: at what age can one be entirely in the hold of their faculties to be capable of consenting to sexual relations? According to Explanation 2 of Section 375, Indian Penal Code, consent regarding sexual relations has been defined as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.” While the Penal Code only talks about consent in the context of women, the Protection of Children from Sexual Offences Act, 2012 (POCSO) defines a child as any person who is under the age of 18, whether female, male, transgender, or non-binary. Every country has a prescribed age of consent, under which a person cannot be legally said to be capable of giving their consent, even if they engage in sexual relations through their own choice.

The age of consent in India is currently set at 18. While the IPC earlier prescribed it to be 16, POCSO set the age at 18, creating a discrepancy. However, the Criminal Law (Amendment) Act of 2013 increased the age under Section 375 from 16 to 18. Therefore, any person under the age of 18 is legally incapable of giving their consent, and any sexual relations they enter into shall be unlawful. Two adolescents under the age of 18 can both be held liable for statutory rape if they engage in sexual intercourse, and if an older person engages in sexual activity with an underage person, it shall be considered statutory rape, even if the two are in a mutual, consenting relationship. Such provisions, while intended to protect children from being exploited, are often misused to prosecute young adolescents who are in consenting relationships.

Therefore, many countries all over the world have introduced certain exceptions to the age of consent, one of them being the close-in-age exemption, or the Romeo and Juliet laws. The exemption derives its name from the infamous tale of Romeo and Juliet, teenagers in love, aged 17 and 14 respectively, an occurrence which in today’s day and time would be a crime in several countries. The close-in-age exemption allows for the legal sustenance of a consenting relationship between two people, where either both of them might be underage, or where one might be underage and the other above it, to an extent of a prescribed number of years, and protects adolescents from the grave consequences of being labelled as a sex offender. For example, in Sweden, the age of consent is 15, or 18 if there exists a fiduciary relationship between the potential offender and the underage person. However, they allow for a close-in-age exemption, where a person who makes sexual contact with an underage person is exempted from being prosecuted if they are no more than 3 years older than the underage person.

THE ROMEO-JULIET CLAUSE AND INDIA

India does not currently have a close-in-age exemption, which means any sexual relationship between two underage people, or that between an older partner and an underage person shall be considered to be statutory rape. This means that effectively all adolescent relationships are criminalized, whether consensual or not. Normal developmental processes such as exploring romantic relationships or one’s sexuality are deemed unlawful, not to mention the misuse of laws designed to prevent sexual violence by disgruntled parents who disapprove of their child’s relationship. In India, relationships are governed largely by systems of caste, religion, and one’s social standing. Families play a significant role even in adult relationships, let alone those of adolescents, which are largely considered taboo and dishonour.

Therefore, laws such as POCSO are extensively used by families to exercise increased control over who their children end up with. It is not uncommon for parents to file rape charges against boys from a different caste or religion that their daughters elope with consensually. Without a close-in-age exemption, these boys are prosecuted under POCSO despite the girls refusing to testify against them. Families that have no qualms about marrying their underage daughters to older men readily seek to use the absence of a close-in-age exemption to their advantage only when the relationship does not suit their image. A staggering amount of cases filed under POCSO and other acts are cases of romantic relationships reported by families. A study conducted by the National Law School of India University’s (NLSIU) Centre for Child and the Law showed that cases revolving around romantic relationships accounted for around 21.58% in Delhi, 21.21% in Andhra Pradesh, 20.52% in Maharashtra, 15.69% in Assam, and 5.45% in Karnataka.

Certain studies were conducted, whereby the district court cases filed under POCSO in three different cities were examined: Delhi, Mumbai and Lucknow. About 18-54% of all such rape cases accounted for cases of consenting sexual relationships reported by parents of adolescent girls. Another study conducted by The Hindu stated that approximately 30% of all sexual assault cases in Delhi, and 23% of cases in Mumbai, were just consensual relations reported as rape. NLSIU’s Centre for Child and the Law conducted another study from 2013-15, diving into trial court cases filed under POCSO in Delhi. It showed that around 28% of all cases concerned adolescents, and out of those, 90% resulted in acquittal because the girl refused to testify against her partner. In 19% of the total cases, the adolescents were already married after effecting a compromise, and 10% of the girls stated that they were in a consensual relationship with their boyfriend and were not raped at all.

If these studies are to be believed, then this is a gross violation of the institution of justice. Such arbitrary reporting of consensual relationships between two adolescents as rape takes away resources from people who are true victims of sexual violence and require urgent help. It further casts skepticism on valid claims of survivors. The Madras High Court, in 2019, stated that the majority of the cases registered under POCSO were elopement cases because of which actual cases of minor rape victims were often ignored. Further, in most cases, only the boys were prosecuted, nullifying the gender-neutral character of POCSO. In this case, the trial court sentenced the boy to 10 years of rigorous imprisonment and a Rs. 3000 fine, even though the girl refused to testify against him. The High Court, however, recognized that there was insufficient evidence and acquitted the boy.

The Madras High Court, in the abovementioned case, also suggested that the definition of a “child” as given in POCSO must be changed to someone who is under the age of 16 instead of 18 and that close-in-age exemption must be introduced in India to prevent the misuse of protective legislation. The close-in-age exemption was also supported by the National Commission for the Protection of Child Rights (NCPCR) which suggested that it must include (a) a consensual non-penetrative sexual act between two children above the age of 12 years sharing the same age or two years of age gap difference and (b) consensual penetrative sexual acts between children above 14 years who are of the same age or sharing three years of an age gap. These suggestions have not been taken into account as of yet. However, the lack of a close-in-age exemption does not necessarily prevent what it seeks. Adolescents still pursue relationships with each other, except they now face the danger of being prosecuted. The National Family Health Survey – 4 (2015-16) showcased that 11% of girls had had their first sexual encounter before turning 15, and 39% before they turned 18.

Further, the criminalization of adolescent sexual relations, on top of the societal stigma, only contributes to the lack of sexual health awareness and the inaccessibility of reproductive health resources to young women, thereby perpetuating outdated systems like patriarchy and misogyny. According to POCSO, any private citizen, including a doctor, teachers or parents, are mandated to report any sexual activity among teenagers. Teenagers who are sexually active and require emergency medical resources, such as contraceptives, safe abortion, or treatment of sexually transmitted diseases, cannot seek help without risking prosecution. Young adolescents are forced to choose between going to prison, refusing to exercise their reproductive rights or seeking help from unhygienic, unsafe and unreliable sources.

CONCLUSION

Laws such as POCSO are crucial to fight sexual violence against children. However, in the absence of a close-in-age exemption, one can’t help but feel it greatly diminishes any autonomy that adolescents exercise over their sexuality. The Act blankets all adolescent sexual activity, whether consensual or not, under the ominous banner of statutory rape. While it does not stop adolescents from engaging in sexual activity, it does impose a massive risk on them, which they might sometimes have to pay with prison time. Most importantly, it comes at the cost of compromising one’s sexual and reproductive health, as seeking professional help is not an option. Further, the arbitrary filing of cases under POCSO, which are in reality just instances of two consenting adolescents, takes away resources from those who are endangered.

If a close-in-age exemption were to be introduced, it would enable adolescents to access timely and safe healthcare, and the legal resources would be able to prioritize those in need. The institution, which is comfortably perpetuating ancient systemic problems such as patriarchy, caste and gender discrimination in the name of law, needs to be reviewed and revised. The stigma around adolescent sexuality must be removed and seen for what it is: just another step towards the development of a well-adjusted human being. Innocent adolescents must be allowed to enforce their rights and permitted a degree of control over their bodies and what they choose to do with them. The question must be asked whether the ultimate goal behind these legislations is truly being realized. If the answer casts even a shadow of a doubt, the legislation must be adapted to serve the interests of those who seek its aid.

ENDNOTES

1. Indian Penal Code, No. 45, Acts of Parliament, 1860
2. Protection of Children from Sexual Offences Act, No. 32, Acts of Parliament, 2012 (India)
3. The Criminal Law (Amendment) Act, No. 13, Acts of Parliament, 2013 (India)
4. Veenashree Anchan et al., POCSO Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need and Legal Obligation for the Adolescents in India, Volume 43(2), Indian J Psychol Med, 158, 160 (2021)
5. Amitra Pitre & Laksmi Lingam, Age of Consent: Challenges and Contradictions of Sexual Violence Laws in India, Volume 29(2), SRHM, 1, 7 (2021)

This article is written by Aanya Sharma, currently pursuing law at Campus Law Centre, Faculty of Law, University of Delhi.