Representative image of a couple
Representative image of a couple

‘Romantic cases’ make up nearly 20% of POCSO cases in three states: Report

The study by Enfold Proactive Health Trust, undertaken with support from UNICEF and UNFPA, suggested that the age of consent for sexual activity be re-examined and comprehensive sexuality education be introduced in schools.

A study of 7064 cases registered under the Protection of Children from Sexual Offences (POCSO) Act in Maharashtra, West Bengal, and Assam has revealed that 23.4% (1715) of them are ‘romantic cases’. According to POCSO, the age of consent for sexual activity is 18. If a person below 18 is involved in a sexual relationship, it is considered as statutory rape, even if it was consensual. The study was undertaken by Enfold Proactive Health Trust with support from UNICEF (United Nations International Children’s Emergency Fund) India and United Nations Population Fund (UNFPA). It examined various factors involved in ‘romantic cases’, including conviction rates, who provided testimonies, ages, and ‘accused’ persons and ‘victims’, among others. The report defines ‘romantic cases’ as those where the ‘victim’, their family members, and/or the special court states that the accused person and the victim were in a consensual romantic and/or sexual relationship.

The report states that informants in these 1715 cases were predominantly parents (70.8%) and relatives (9.4%) of the girl. The girls themselves were informants only in 18.3% of the cases. This is a significant number because the report highlights how the rate of conviction is higher in cases where the girl testified against the accused. In 75 out of the 259 cases where the girl testified, the accused was convicted. At the same time, acquittals were also high (220 cases, 74.6%) where the girls testified that they were in a consensual relationship with the accused.

In 314 cases, the girls lodged a complaint against the accused for reasons that included refusal or breach of promise to marry (155) and forced sex and/or kidnapping (154). Other factors include pressure from parents or community (52) and sexual harassment, which included stalking by the accused (24). 64.9% of the cases involved girls leaving their home to be with their partner, for reasons ranging from parental disapproval of the relationship (280), arrangement of a marriage against their will (113), and violence or threat of violence (65). It is to be noted that all the ‘victims’ in these ‘romantic cases’ were girls, with an exception of one case in Maharashtra where the ‘victim’ was male.

The girls in these ‘romantic cases’ were often married to the accused persons. Out of the 798 (46.5%) cases where the girls were married to the accused, 180 of them were married at the time that the First Information Report (FIR) was filed, and in 681 cases, they married subsequently. Only 15 cases resulted in conviction when the girl was married to the accused.

However, problematic factors such as abuse and violence were observed in 248 cases. In 188 cases, the girl testified that the accused forcibly had sex or kidnapped her. The accused was violent or threatened violence in 36 cases. The accused misrepresented his name or age, suppressed that he was married, or stated that he belonged to a different faith in 21 cases. In 54 of the 106 convictions, one or more of the above listed problematic factors were observed from the facts of the case. In 87 of the 106 cases convicted, the special courts explicitly stated that the consent expressed by a minor is immaterial under the POCSO Act. This was the primary reason for the conviction in these cases, even if the girl did not testify against the accused.

At the same time, the courts had concluded in 1058 (61.7%) of the total 1715 ‘romantic cases’ that the relationship between the girl and the accused was consensual. Various approaches were used by the courts to determine that the relationship was consensual, including the girl’s assertion that there was no sexual assault and lack of ‘intention’ of the accused to commit sexual assault since he was married to the girl, among others. While the special courts did consider grooming and exploitation in some cases, there were also cases in which it concluded, based on her conduct, that the relationship was consensual even though the girl testified against the accused.

The report mentions that the aim of ‘romantic cases’ were rarely reporting sexual harm or violence but to controlling and detering girls from being in consensual relationships. In some cases, it was also used as a device to compel the accused to honour his promise of marriage. The report further added, “By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. The blanket criminalisation of consensual sex among or with adolescents is in gross oversight of their sexual development, bodily integrity and autonomy, and normal desires for attachments and relationships.”

Highlighting how ‘romantic cases’ overburden the criminal justice system, the report also mentions how adolescent girls and their partners are subjected to a criminal investigation and trial which affects their dignity, mental health, interpersonal relationships, and employability. The report also mentions how the law undermines adolescent girls by “unidimensionally casting them as victims, rendering them voiceless, and without any agency to enter into relationships or choose their partners.” However, adolescent boys are seen to be in conflict with law and can even be tried as adults.

Inclusion of comprehensive sexuality education in school curriculum to ensure that adolescents can make informed and safe choices while also learning to develop respectful sexual and social relationships was recommended by the report. Further, the report also called for a re-examination of the age of consent for sexual activity, while balancing between protection from exploitation and acknowledging sexual behaviour among adolescents.

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