The persecution of consent 

It is important for the law, courts, and the police to handle with a degree of sensitivity the question of consensual, underage relationships, simply because the tangle ensuing from this ‘offence’ has upended many young lives 

October 02, 2022 01:08 am | Updated 12:56 pm IST

Illustration for The Hindu: Satheesh Vellinezhi

Illustration for The Hindu: Satheesh Vellinezhi

Meena* and her classmate Ravi had liked each other from the time they were in school together. Both were 17 years old, and after schooling, they continued their relationship.

However, as resistance continued from Meena’s family to the relationship, she chose to leave home and landed up on his doorstep. His family, however, told her that her parents would miss her a lot and took her back home. A few months later, as problems persisted for the couple from Meena’s family, she insisted that he take her away from them or otherwise she would kill herself.

Also read | The fallacy of potency tests

Meena’s family then filed a complaint against the boy. With a case registered under the Protection of Children from Sexual Offences (POCSO) Act, Ravi’s ordeals were only just beginning.

Mandatory reporting

This comprehensive law provides for protection of children and young people from a range of offences. A child, according to the Act, is anyone who is aged below 18 and cannot consent to any sexual activity. Under Section 19, any person, including the child who has an apprehension that an offence under the Act is likely to be committed or has knowledge that the offence has already been committed, will have to report it.

For several couples aged 16-18 and involved in consensual, romantic relationships, the impact of the law on their lives is immense.

In Ravi’s case, he was apprehended and sent to an observation home. His parents were left trying to make sense of what was happening and arrange for financial resources to visit him and to hire a lawyer. The family had to pawn a vehicle to raise money.

For long, activists have called for the revision of the age of consent under the law. Despite being in a consensual relationship, several couples, like Ravi and Meena, end up facing a police investigation, possible institutionalisation, as well as the stigma and mental trauma that follow.

“The POCSO Act has a draconian aspect that does not factor in healthy or normal adolescent development and sexuality. The impact it has on the teenagers in romantic relationships and the psycho-social trauma that such cases leave them with is immense,” said Vidya Reddy of Tulir, Centre for Prevention and Healing of Child Sexual Abuse.

‘Contrary to sciences’ 

Ms. Reddy also pointed out that in several such cases in which the boy and the girl are aged below 18 and in a consensual, non-exploitative relationship, the boy is the one who is booked under the Act. “It is perplexing as to why a case is only registered against a boy and the girl is considered an aggrieved party. This is a very protectionistic way of looking at adolescent sexuality which also means that we don’t believe young women have a sexual identity. This is contrary to what the sciences tell us about healthy development,” she said.

While there are no official records of romantic or consensual relationships which have come under the Act, independent assessments have attempted to look at how many elopement or ‘Romeo-Juliet’ cases, as they are popularly called, make up the total number of cases in POCSO courts.

Elopements and love affairs, which are often charged under the Act since the law does not recognise consent, constituted a significant number of the cases that come to the special courts. The POCSO High Court Committee in Tamil Nadu recently directed that such cases of ‘non-serious’ offences be transferred from the POCSO courts which have been set up in 16 districts to the Mahila Courts. The aim was to ensure quick disposal of cases of serious offences under the POCSO Act.

This is not the first time such a direction has been given. A similar move was made in 2021 for the transfer of cases involving girls aged 16-18 to the Mahila Courts from the POCSO courts in Madurai, Salem and Tiruvannamalai.

A 2017 study by the Indian Council for Child Welfare (ICCW) on children apprehended under the POCSO Act for elopement in Tamil Nadu indicated that of the 118 boys who were apprehended for various sexual crimes under the Act and brought before the Juvenile Justice Board across Tamil Nadu, 53 cases (45%) were cases of elopements.

The reasons for elopements, the study indicated, were the urge of sexual exploration and the fear that they might not be able to marry the person they loved because of stigmatising factors, including caste and class.

Dheena, 17, eloped with his girlfriend, a minor, who later gave birth to a baby. A social worker, who was engaged with the case, said that while there were no complaints initiated by either family since they did not want to cause trauma to the girl, their relationship became an issue at the hospital where she was delivered of her baby.

Even though Dheena remained by her side, the hospital informed the police as mandated by the POCSO Act. He was apprehended and sent for a month to an observation home. Through the course of the investigation, a DNA analysis was done, and it established him as the father of the child. Despite this, he was subjected to a potency test. The condition for his bail was that he had to shift from the area of residence with his family and stay far away from the girl, disrupting their livelihood and pushing the family deeper into economic vulnerability.

“When it is a consensual relationship or one that has a shared intimacy, in several cases we see the families of girls support them strongly and want a case to be filed against the boy. The boy’s family is often clueless. This is also very telling of how we educate children on their rights and the POCSO Act — girls have been made much more aware than boys,” said Priya Vijaykumar, former chairperson of the Coimbatore Child Welfare Committee and psychologist.

Despite the Act being gender-neutral, she said, there were more instances of cases being filed against boys when it came to romantic, consenting relationships.

“For boys sent to observation homes, the experience is often traumatic and it unnecessarily exposes them at a young age to things that they shouldn’t be learning about or hearing. In Coimbatore, when I was part of the CWC, we took initiatives to address this and worked with police personnel on how to handle such cases in which both are below 18 and it is either an act of elopement or love affair,” she said, emphasising the need for the police to engage with child protection authorities closely.

Psychological impact 

The ICCW study in 2017 had indicated that with regard to the inquiry processes, not following child-friendly procedures, and delay in inquiry procedures often led to a psychological impact on the children in conflict with the law. For instance, 54% of the principal magistrates had said children in conflict with the law were not counselled during the stay at the observation home.

What is a potency test, how is it done?
While there are many ways to do a potency test, the one commonly used includes reflexes and measurement of the male genitalia based on which the authorities form their opinion that the examined individual is physically not incapable of sexual intercourse. If necessary, the hormonal assay, injecting chemicals to produce erection, and colour doppler studies are done.

“The aftermath of elopements and the legal turn it takes often leave a deep impression on these young minds. We need a normal, acceptable way of dealing with these cases as falling in love and growing up is a part of adolescence, and we need to find ways to address this and educate our children better,” said Girija Kumarababu, former general secretary, ICCW, Tamil Nadu, and a former member of the Juvenile Justice Board.

Naveen, 17, landed in trouble after a prank video went viral, showing him tying a ‘thali’ to his girlfriend, also a minor. Their families had already agreed to their getting married once the girl turned 18. What ensued was a case filed against him under the POCSO Act and the girl carted off to a government home. The apprehension of an investigation led to his running away. Two youngsters who were immaturely trying to prove their ability to make decisions ended up being charged under the law.

‘No middle ground’ 

Sannuthi Suresh, a psychologist, said the law seemed to view adolescents as either asexual and hence, victims, or exploitative and hence, sex offenders. “There is no middle ground here.”

Ms. Reddy, too, said that when any sexual activity by an individual below 18 years is considered a crime by law, this could lead to very warped views of sexuality and intimacy in the long run. “If comprehensive sexuality education and safe sex practices are made accessible for young people, we would also be seeing fewer teenage pregnancies,” she said.

The spotlight is now on how to go forward and educate adolescents on their bodily autonomy, rights and safe practices that include contraception. Ms. Sannuthi pointed out that there is a moral panic around the sexuality of young people, and said most parents and educators tend to prefer protection to informing and enabling conversations with their teens about this. “The onus is on the community as a whole, from parents to educators, everyone needs to be on this. Ideally, there should be more avenues for adolescents to access authoritative information — that is evidence-based and age-appropriate,” Ms. Sannuthi explained.

Law and relevance of potency test for child in conflict with law
Contrary to the earlier law, besides penile penetration, penetration by finger, other body parts or by objects into genital orifices is also included in the definition of penetrative sexual assault in the POCSO Act. Furthermore, penetration of penis, not necessarily erect, to any extent into genital orifices or mouth also constitutes a penetrative sexual assault. Also, Section 53 A of the Cr.PC, which specifically deals with the medical examination of a person accused of rape, does not insist on a potency examination.

With a lack of conversation about this as well as fewer avenues for them to explore their changing selves during adolescence, many turn to pornography which in no way is accurate, she added.

“Teens should instead be given information to the extent that they care to know and this has to be a long-term effort, as a part of their regular ecosystem of knowledge,” she added.

Asra Garg, Inspector-General of Police, South Zone, said that while the POCSO Act is to be implemented in letter and spirit and all necessary legal processes need to be completed, the police and other stakeholders looking at it on a case-by-case basis and adopting a humane approach towards dealing with non-exploitative cases would go a long way.

The south zone has taken several initiatives for the better implementation of the Act, he said. “While we emphasise the need to ensure all legal formalities are to be carried out as mandated, a humane approach will ensure that there are no long-term repercussions for teens involved.”

(*All names of minors have been changed to protect identity.)

(Those in distress or having suicidal tendencies could seek help and counselling by calling the State’s health helpline 104 or Chennai-based Sneha’s suicide prevention helpline 044-24640050.)

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