How young is too young for consensual sex?

As important as POCSO is, courts and cops should be sensitised to understand the spirit of the law

October 04, 2019 03:55 pm | Updated November 30, 2019 01:28 pm IST

POCSO has unfortunately also morphed into a law used to criminalise consensual adolescent sexual activity

POCSO has unfortunately also morphed into a law used to criminalise consensual adolescent sexual activity

I attended a seminar last week organised by the Chennai-based Tulir, an organisation that works in the area of child sexual abuse. They were releasing a report on the reasons behind adolescent elopements. Authored by Madhu Mehra of Partners for Law in Development, the report had interviewed 15 girls, aged from 12 to 22, who had run away with their boyfriends.

The report is fascinating because it highlights some of the most crucial complexities that surround the issue of women’s freedoms.

On the one hand, we have horrific statistics of child sexual abuse — a 2007 study found that 53% of children surveyed had experienced some form of sexual abuse, with 21% facing severe abuse. With the issue compounded by social-sanctioned silence, the government finally passed, in 2012, the Protection of Children from Sexual Offences Act (POCSO) to provide a strong legal safeguard for children. It reinforced the law in many ways, including in how “abuse” is defined. But in its bid to widen the security net, it also defined any person below 18 as a child.

In this lies the rub, because adolescence sets in well below 18. The World Health Organization defines as ‘adolescent’ anyone between 10 and 19. And adolescence, as we all know, is the age of raging hormones. Sexual curiosity begins to emerge, boyfriends and girlfriends are made, and physical contact is explored.

As important as POCSO is, it has unfortunately also morphed into a law used to criminalise consensual adolescent sexual activity. In Mehra’s report, it is heart-breaking to read of a 17-year-old girl sent to a remand home and a 19-year-old boy imprisoned merely for the ‘crime’ of sleeping together or running away to get married.

Why do they elope in the first place? Primarily because they are forced to legitimise their sexual relationship. And because they don’t know of, and are not allowed, any alternative lifestyle choice besides marriage. And in this is embedded an entire story of social repression. A story that begins because of the continuing stigma around sex. When society insists that no sexual contact is permissible outside the framework of marriage, it puts an unnatural burden of abstinence on adolescents.

It would be far healthier if consensual sexual activity was accepted as an inevitable part of growing up, rather than place so great a premium on chastity that all pre-marital sexual contact is criminalised. And, by turning marriage into a fit-all ‘solution’, society forces young people into hasty and bad marriages.

But acceptance also means finding gentle ways to deal with adolescent pregnancy. Under POCSO, when any girl under 18 seeks an abortion, it is mandatory for the agency to report it to the police as sexual assault. The law would be far more woman-friendly if it made the performance of a safe and voluntary abortion mandatory before the reporting of it.

While undeniably the law was framed as protection, the tragedy is that POCSO is most often invoked by families of daughters who have eloped or are in consensual sexual relationships. So, the law is used not so much for protection as for punishment. Ironically, in their homes, these girls perform full-fledged adult roles — cooking, cleaning, earning, caring for younger siblings, looking after drunk fathers. But when it comes to consensual sex or marriage, they are thrown back into infantile roles.

How do we get the balance right between protection and liberty? For this, courts and cops must understand and use differentiated approaches for each case, based on individual stories. Already, if there is no kidnapping or trafficking involved, the Prohibition of Child Marriage Act allows the underage person to annul the marriage after turning 18. Why not give such marriages that grace period before rushing into arrest mode?

Unless judges and policemen are sensitised to understand the spirit of the law, the law will continue to be used in oppressive rather than progressive ways. And it will continue to be the tool of the powerful. The problem lies as much, therefore, in how our law-keepers themselves are socialised.

The Madras High Court has already suggested that consensual sex after the age of 16 be excluded from POCSO. In the meantime, it would be good to see the brute force of the law used with less devastating effect on young people while protecting the real victims of abuse more efficiently.

Where the writer tries to make sense of society with seven hundred words and a bit of snark.

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