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Consent and controversy

The Protection of Children from Sexual Offences Bill passed by the Rajya Sabha will criminalise sexual activity between consenting adolescents

Written by Flavia Agnes |
May 12, 2012 3:16:44 am

The Protection of Children from Sexual Offences Bill passed by the Rajya Sabha will criminalise sexual activity between consenting adolescents

There is a need to revamp the criminal provisions governing sexual crimes,which were framed in 1860 as part of the Indian Penal Code. Rape was defined in narrow terms,and other sexual crimes paled into oblivion and were termed as either “unnatural sex” or “violating modesty”. This raised two questions — first,when does a girl child acquire “modesty” that can be “violated”? The second question concerned the sexual abuse of boys,particularly in cases of paedophilia,as the term “unnatural sex” placed both sexual assault and consensual same-sex relationships on the same scale.

The anti-rape campaign launched in the early 1980s after the adverse ruling in the Mathura rape case brought in some changes in rape laws,but these were directed towards prescribing a stringent punishment as a deterrent and did not question the framing of rape in patriarchal terminology. Since the 1990s,there have been demands for a gender-neutral rape law to bring within its purview sexual violation of boys and non-penetrative sexual abuse of girls. Various drafts prepared and circulated over the last 20 years lay dormant.

The age of consent for sexual intercourse has always been contested. In 1860,10 years was the stipulated minimum age. But the furore caused by the death of an 11-year-old girl at the hands of her 35-year-old husband through forcible penetration led to the raising of the age of consent to 12 years in 1892. Later,during the nationalist movement,when women’s groups entered the political arena,they highlighted the adverse effects of early pregnancy upon women’s health,and demanded that the age of consent to marriage and sexual intercourse be raised to 14 years. Then,the age was raised to 15 years in 1949,and later to 16 years. Consensual intercourse with a girl under this age was construed as “statutory rape”. But the provision made a concession to the husband,who was permitted to have sex with his wife if she was above the age of 15. This dichotomy and confusion persists,as the age of marriage under the Hindu Marriage Act and the Child Marriage Restraint Act is 18 years. The proposed bill aims to resolve this confusion by stipulating a uniform age for marriage as well as sex,and inadvertently contributes to a puritanical notion that marriage and sex are synonymous.

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What will the impact of criminalising sexual activity between underage,consenting adolescents be? To understand this,we must examine a phenomenon known as “elopement marriages” — marriages contracted without the consent of the respective parents. The issue brings to the fore ways in which multiple social subordinations — caste,region,religion — intersect with patriarchy to hone in on the sexual choices of defiant young women within established social mores. The situation becomes precarious when an upper-caste girl elopes with a lower-caste boy,or when a Hindu girl falls in love with a Muslim boy. In a strictly stratified society,ridden with prejudices against lower castes and minorities,a young couple who dares to cross the boundaries is severely punished.

It is necessary to examine how “age” is pitted against “agency” in the context of elopement marriages. It appears that choice,or desire,as expressed by a woman,is somehow intrinsically illicit when it is against parental diktat and caste or community norms,and therefore needs to be contained and controlled. Girls who exercise active agency to defy convention pose a threat to the established social order,and are confined by reframing consent itself. Here,“consent” gets embedded in assumptions about rational choice and parental authority,rather than choices made by women.

More problematic is the way in which discourses within progressive movements engage with notions of age,agency and consent when there is a rupture between these terms. Within this complex social reality,how do we view the demand by some groups to declare all child marriages as void ab initio? These groups have been critical of the court verdicts that upheld the validity of marriages of minor girls below the age of 18 in cases of rape and kidnapping brought to court by parents of the eloped girl. In this context,these groups demanded that the age of marriage and age of consent to sexual intercourse be made synonymous.

It is critical that the government’s move to bring in much-needed reforms within the law of sexual crimes is more nuanced and sensitive to the needs of the child and child-adult. The campaign was initiated to bring to the fore cases of incest and abuse of young children by those in authority over them. Rather than giving a boost to moral policing by parents and community leaders,what is required through these reforms is to stipulate procedural guidelines that would protect a child during investigations and trial. The need is to evolve protocols that are binding on the judiciary and other stakeholders,rather than criminalising sexual activity among this vulnerable group. It is hoped that the reforms will not again be shelved and placed in cold storage because of the avoidable controversy that has been foregrounded.

The writer is a lawyer and director of Majlis in Mumbai

The bill comprehensively deals with sexual assault on children. The age of consent issue shouldn’t distract us from that
Pinki Virani

Mea culpa. My doing. As also that of a male judge and school principal. A female doctor and college professor. NGOs like ex-cop Amod Kanth’s,aiding marginalised children. States as distinct as those in the south and the Northeast,and people with varying incomes,have wound up as the coalition that shot down a contentious clause. The clause we killed was a part of the otherwise landmark law-in-the-making,the Protection of Children from Sexual Offences Bill 2011. And why have we been such clause-slayers?

Because when government agrees to make a new law,it cannot,within the same law,not provide equal protection to all affected by the law. It was a violation of the rights of five crore children in one specific age band under the Constitution. The clause also created two surreal loopholes in the guise of “consent”.

First,it gave legal protection to potential offenders; an invitation to criminally minded adults to break the law by raping a child between 16 and 18 years of age. The onus of proving it a crime would have been on the child.

Second,it criminalised sexual experimentation among those aged between 16 and 18. This age band falls within the Juvenile Justice Act. To place them under a new law,one meant to punish majors and protect minors,is to take away their rights under the old one,which avoids legal applications on sex between minors unless there is a complaint.

The Protection of Children from Sexual Offences Bill is India’s first legislation to protect children sexually from predatory adults. Children are defined as minors,understood as being between newly born and 17 years,11 months and 29 days. It includes those yet to be born,since the bill,when it becomes law,will protect every child-citizen of India hereafter. Adults or majors are understood as ranging from 18 to 108-plus. The 18- year cut-off establishes the difference between minors and majors. To reduce or increase the cut-off would require Parliament to pass a separate law. It cannot come under the ambit of this bill.

To date,there is no law in India to provide justice to those under 18 being raped and molested by paedophiles,at home or outside. Twenty five per cent of our boys and 40 per cent of our girls below 18 are sexually abused. Half of this is perpetrated by adults who are in positions of trust,across class and caste lines. (Bitter Chocolate statistics from 2000; a 2007 government study has higher figures.) The cases that are reported — most are not — have been tried in open adult courts with adult laws and calendars. This bill stipulates the setting up of special courts and a time-frame.

I was asked if the new law will “punish innocent love”. He is 19,his girlfriend 17,they engage in “thoda bahut” and “may marry or may not” after she turns 18,he 21. He makes a valid point about the almost overlap of the minor and major ages. I reply,“Your case won’t reach a court unless she makes a complaint to a police station. Should she complain,it would go to a special court where,presumably,a judge will already have been sensitised to such situations.” The male young adult nods,he has understood that with rights,sexual or otherwise,come responsibilities. That no matter what the cut-off age,there will always be an almost-overlap.

The bill comprehensively deals with different aspects of how an entire childhood can be raped. It goes beyond penile-penetration to encompass fingers and objects. It is gender-neutral for children and adults. The key elements are: penetrative sexual assault; aggravated penetrative sexual assault; sexual assault; aggravated sexual assault; sexual harassment; the use of a child for pornographic purposes; the storage of pornographic materials involving a child; and the abetment of offences.

Some words paraphrased from the excised clause: “Provided that when such penetrative sexual assault is committed against a child between 16 to 18 years,it shall be considered whether the consent for such an act has been obtained against the will of the child.” “Consent” means “the unequivocal voluntary agreement when the person has,by words,gestures or any form of non-verbal communication,communicated willingness to participate in the act.” “Unequivocal voluntary agreement” meant “willingness given for specific and be limited to the express act consented to under this section”.

This clause was only applicable to two aspects of the bill,penetrative sexual assault and sexual assault. Which meant that,while the clause stood,it was a crime to sexually harass a child when she or he was 18 but a child could be two years younger when a worse sexual crime was committed upon him or her and that would be “okay” because the child’s “consent” would be sought.

We adults,who believe in explaining boundaries to children so that they grow into accountable citizens,have stood strong for the passage of this law. We recognise the country’s committed key bureaucrats as the spine of this bill. On May 10,the Rajya Sabha passed the bill. It takes a lot of elders working together to protect a child. Next,it’s the Lok Sabha’s turn.

The writer is a National Award winner for her work on the protection of children from sexual abuse

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First published on: 12-05-2012 at 03:16:44 am
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