Crime
The age of consent in India is 18, which makes any sexual activity between teen couples – regardless of whether it is consensual – criminal under POCSO.
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Shubha was only 15 years old when her life was turned upside down. In September 2016, she found out she was 12 weeks pregnant. The father was her neighbour, Sumith*, who was around 17. A distraught Shubha informed her parents, who took her to a government hospital to terminate the pregnancy.

However, because Shubha was 15, the hospital informed the local police of the pregnancy, making it a case of statutory rape under Protection of Children from Sexual Offences (POCSO) Act. And while Shubha and Sumith had consensual sex, it didn’t matter – because Shubha was a minor and POCSO does not take into account a teen, or a child’s consent.

Ultimately, the case went to court, and in March 2018, Sumith was found guilty, and sentenced to life imprisonment. Though social workers who saw the case say that Sumith was a minor, due to poor legal representation and lax efforts to determine his age, he was deemed to be 19, an adult, and prosecuted accordingly.

All of this, because Shubha and Sumith, like many other teenage couples in India and across the world, had sex.

The POCSO Act is meant to prevent and address child sexual abuse in India. However, activists say that there are many cases where the law has been misused against consenting teenage couples. The age of consent in India is 18, which makes any sexual activity between teen couples – regardless of whether it is consensual – criminal under POCSO.

“This is not what the law was meant for. It defeats the purpose of the POCSO Act,” points out Vidya Reddy of Tulir – Centre for Prevention and Healing of Child Sexual Abuse. 

Take the recently released numbers in the National Crime Records Bureau (NCRB) for 2017. The statistics break down POCSO victims by age profile. The numbers shoot up significantly in the higher age groups - a portion of them presumably are teen couples who were caught engaging in consensual sexual acts.

While the number of victims under six years of age and between six to 12 years was 656 and 2,164 respectively, they quadruple in 16 to 18 age group. POCSO victims between 12 to 16 years and 16 to 18 years were found to be 6,674 and 8,266 respectively in 2017.

There has been no comprehensive study to ascertain what proportion of these are ‘romantic cases’ as compared to genuine child sexual abuse cases. However, these numbers do beg a conversation about the law, consent, and teenage sexuality.

POCSO does not take into account children’s sexuality

Civil society activists and groups have been pointing out for a long time that POCSO does not consider the fact that children also have a sexuality. This, even though teenage relationships are romanticised and find plenty of representation in pop culture. Yet, there is no caveat that recognises consent in POCSO.

A social worker in Karnataka, who works with child sexual abuse survivors, explains some common circumstances wherein these ‘romantic cases’ are booked under the Act. “One is when a couple, where either one or both are minors, runs away, and the parents file a missing persons complaint. They are often easily found, the police make a POCSO case based on the assumption that they have had sex,” she says. If both the boy and girl are minors, then technically both can be victims under POCSO. However, it is determined by who has filed the complaint.

The informants in such cases are nearly always the girl’s parents, says legal researcher Swagata Raha, based on her findings from a study by Bengaluru’s National Law School of India University’s (NLSIU) Centre for Child and the Law (CCL). Called Implementation of the POCSO Act, 2012, by Special Courts: Challenges and Issues, the CCL-NLSIU study was published in 2018, and looked at POCSO cases in Special Courts in five states: Delhi, Assam, Maharashtra, Karnataka and Andhra Pradesh.

Swagata adds, "There are cases in which the girl is an informant as well, usually when there is a breach of the promise to marry, or she has become pregnant and the boy refuses to bear any responsibility or marry her.” 

Section 19 of POCSO makes it mandatory for anyone having knowledge of sexual abuse of a minor to report it. And because all sexual activity between minors is looked at as sexual abuse under POCSO, doctors and hospitals are mandated to report teenage pregnancies - regardless of whether the relationship and/or sex were consensual. The police then invariably register a POCSO case.

“Another way ‘romantic cases’ are booked under the Act is when the girl realises she is pregnant, and wants to abort, or when she delivers the baby,” the social worker says.

What happens when such cases go to court?

An unreleased study commissioned by the Karnataka Department of Women and Child Development, which looked at 100 POCSO cases at a sessions court in the state from 2015-16 found that 68% were ‘romantic cases’.

More often than not, these cases end in acquittals, especially if the victim and the accused appear to have married; and even more so if the girl has become pregnant or has given birth. 

The CCL-NLSIU study found that “in Karnataka, six of the 110 (5.45%), in Delhi, 144 of 667 (21.58%) judgements analysed were ‘romantic’ cases, and in Assam, 27 out of 172 cases (15.69%) were ‘romantic’ in nature. The percentages in Maharashtra, and Andhra Pradesh were found to be 20.52% and 21.21% respectively.”

In such cases, convictions were 0% in Assam and Andhra Pradesh; 1% in Delhi, and 3% in Maharashtra. Courts take a lenient view in such cases keeping in mind social considerations. "For instance, the fact that the accused is providing for the victim and her child, or that if the accused were sent to prison, it would be next to impossible to rehabilitate the victim and her child into a narrow-minded society,” the CCL-NLSIU study states.

In many such ‘romantic cases’, the victim girl may turn hostile, and refuse to testify against the accused too, resulting in an acquittal. “An acquittal could also happen if the girl’s age cannot be established below 18 years of age,” Swagata adds.

Cases such as these being filed under POCSO “results in wastage of police and courts’ time, and resources too, that could otherwise be looked into to investigate real child sexual abuse cases,” Vidya says.

Argument for lowering the age of consent

Vidya argues that sexual relations between teens should not be criminalised above the age of 16. “Unless it is through coercion, trickery or force,” she says.

“We need to re-examine the age of consent, particularly in the light of the objectives of the POCSO Act,” Swagata agrees. She adds that the POCSO Act was a result of India’s obligation under the United Nations Convention on the Rights of the Child (UNCRC) to prevent ‘inducement or coercion of a child to engage in any unlawful sexual activity.’ However, keeping in mind the evolving nature of children, the Committee on the Rights of the Child (a body of independent experts that monitors the implementation of the UNCRC) has also advised countries against criminalising consensual, non-exploitative sexual activity among teenagers. 

In fact, this came up for discussion even when POCSO was being debated. The National Commission for Protection of Child Rights (NCPCR), a statutory body formed in 2007 to monitor the laws, policies and programs pertaining to child rights, had recommended that the age of consent at 16 (before the amendment to the Criminal Law Act, 2013, that raised it to 18) be retained. 

According to the CCL-NLSUI study, the NCPCR had also suggested adding an exception that would not consider consensual non-penetrative sexual acts between two children who are at least 12 years of age, within two years of each other as criminal. The suggestion added that consensual penetrative sexual acts between children above 14 years and within three years of each other would also not be criminal. 

A similar provision exists in Canada, where the age of consent is 16 years. However, a 14 or 15-year-old Canadian can engage in sexual activity consensually given that the partner is no older to them than by five years, and there isn’t a relationship of “trust, authority or dependence” between the two.

A double-edged sword

While there are substantial arguments to amend the POCSO law, there are also concerns. This is why activists say that while they have been seeing cases of misuse of POCSO against consenting teen couples, any amendment to the Act must be undertaken only after further research into such 'romantic cases' and how they are treated by Juvenile Justice Boards.

One such concern, says the social worker from Karnataka, is that “if an exception taking into account consent among teens is added, it can be misused in actual abuse cases too. Yes, consensual teen relationships are being criminalised, but the reverse can also happen where the perpetrators claim that the sexual abuse was actually a consensual sexual relationship.”

This is pointed out in the CCL-NLSIU study as well, in context of acquittals being higher in ‘romantic cases’ booked under POCSO. While judges tend to be lenient in such cases keeping in mind social realities, in some cases, victims may have married the accused under social pressures, coercion, or a lack of alternatives even if they were initially raped or groomed by the accused. “But it does not appear that any effort was ever made by Special Courts to consider whether the victim actually consented to the marriage, and if so, under what circumstances,” the study says.

The problem, the social worker points out, is that we are not having conversations about sex with our children, the social worker says. “Teenage relationships have always happened, and they will happen. But unless we talk to our children, they will not be able to discern the difference between safe and unsafe relationships and sexual behaviour, or confide in trusted adults when they are in trouble.”