The new law to protect children from sexual offences, though progressive in many respects, gives cause for concern by defining children as below 18 years
The Protection of Children from Sexual Offences Bill, 2012, currently awaiting Presidential assent is a welcome step for many reasons.
The penal code does not take into account the reality of many different acts of sexual violence committed on children and the range of sexual contexts according to the extent of coercion, injury, age and incapacitation of the child. The concept of relationship with the child, crucial in such cases, is completely absent in the existing law; there are no separate provisions to address sexual violence committed by family members, friends or those in positions of authority. The Indian Penal Code also does not specifically address sexual violence against the boy child except under Section 377 that criminalises homosexual behaviour. The new Bill addresses these concerns and defines various categories of sexual acts that are offences when perpetuated against children. It is gender neutral, which is progressive. But in its definition of a child as below 18 years of age, it gives cause for concern.
While this would seem to make it easier for those below the age of 18 to prove sexual abuse without being cross-examined on the problematic question of consent, the reality is more complex. The Bill defines “penetrative sexual assault and sexual assault.” However, under the definition of “sexual assault” the Bill criminalises all sexual contact either with or between those under 18. The Bill calls for mandatory reporting by anyone who “apprehends” that an offence may be committed, and failure to report is an offence. This will encourage moral policing against under-18s; even consensual intimate behaviour may lead to complaints by family members and others. On the other hand NGO's, child rights groups or family members who hesitate to take such a case to the police can be penalised.
The Bill also shifts the burden of proof on to the accused in a very significant way — just as in the Narcotic Drugs and Psychotropic Substances Act — that would affect fair trial standards. It introduces a concept of “culpable mental state”, which includes motive, knowledge, or intention. This can be used against those who do not report an offence. False complaints made with the intention of humiliating, extorting, threatening or defaming a person is an offence under the Bill. But the fact that the law recognises such dangers indicates the risks in shifting the burden of proof to the accused. By the time persons prove their innocence, there will be no energy left in them to prosecute a false complaint.
The issue of age is not related to minors alone. There are many instances of adult women who are unable to prove their age being kept in “protective custody”. When young couples in inter-caste or inter-religious relationships elope or marry, families misuse a provision of the IPC relating to kidnapping from lawful guardianship, under which an offence is made out if the young person who is considered to be “kidnapped” is below 18 years as the lawful guardian in such cases is the father. Given the ground reality of violence perpetuated by Khap and caste panchayats against young couples, raising the age from 16 to 18 years for consensual sexual behaviour is problematic.
The Bill is completely silent on the issue of marital rape; which means, it is the penal code that will apply. Under the IPC, marital rape is an offence only when the wife is below 15 years, three years younger than the age of consent prescribed by the new Bill. Clearly there is a difference in the way the Bill addresses relationships
Pre-marital relationships among those above 16 years is on the rise and a study by the International Institute for Population Studies (IIPS) and Population Council in 2010 conducted in Andhra Pradesh, Bihar, Jharkhand, Maharashtra, Rajasthan and Tamil Nadu is revealing. The study conducted among youths of the age group 15 to 24 years indicates that while a minority of young men and women had made or received a “proposal” for a romantic relationship (21-23 per cent), smaller percentages reported that they had been involved in romantic partnerships (19 per cent and nine per cent respectively of young men and women). Patterns of pre-marital romantic partnerships suggested they were initiated at an early age and were usually hidden from parents but not from peers.
There was a clear progression in reported physical intimacy and sexual experience with romantic partners: while 88 per cent of young men had held hands with a romantic partner, just 42 per cent had sex with their partner; among young women, while three-quarters had held hands with a romantic partner, just one in four (26 per cent) had engaged in sexual relations.
The report further indicates that these opportunities exist despite strict social norms prohibiting pre-marital mixing with the opposite sex. The increasing number of Habeas Corpus petitions filed in various High Courts by young persons seeking the right to exercise their choice in personal relationships also reflects this trend. It is not to suggest that consensual sexual acts amongyoung persons are not fraught with problems. But criminalising all such acts is missing the wood for the trees.
What is required is to address behaviour among young people in various appropriate ways and break the silence around intimacy and sexuality. Otherwise the law would only be misused to criminalise a natural process of growing up.
(Geeta Ramaseshan is a Chennai-based lawyer)