Balancing Protection And Autonomy: Rethinking POCSO's Approach To Adolescent Relationships

On February 17^th this year, the Bombay High Court passed an order granting bail to an accused charged under sections 4, 6, 8 of the POCSO Act for raping a minor girl. Notwithstanding the fact that consent of the minor is immaterial in the scheme of POCSO, the order noted that the minor had a consensual encounter with the accused and granted bail in order to secure the ends of justice. Albeit, the court clarified that its observations are restricted to the bail application, the order does well in recognising social reality of adolescent romantic relationships. Numerous studies highlight that romantic relationships are prevalent among adolescents in India. Consequently, the substantial number of cases registered under POCSO are that of romantic nature. The percentage of romantic cases is more than 20% in states like Delhi, Maharashtra and Andhra Pradesh. This demonstrates that a large number of consenting individuals come into conflict with the law due to the deep chasm between the law and ground reality. However, it is pertinent to note that the objective of POCSO was never to criminalise consensual sexual relationships. The Protection of Children from Sexual Offences Act, 2012 is a special legislation that was enacted to eliminate rising number of child sexual abuse cases in India. Section 2 (1)(d) of the Act defines child as a person below the age of eighteen and thereafter criminalises any form of physical intimacy with a minor irrespective of his/her consent. The Act delineates and penalises offences of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, child pornography and its usage under its legislative framework.

Divergent Judicial Interpretations

While interpreting and applying provisions of POCSO, the courts have rendered two divergent categories of judgements. In the first category of decisions, the provisions are applied literally and the consent of the minor is taken to be 'not material at all'. The Madras High Court in Maruthupandi vs. State, literally interpreted the provisions and stipulated that penalties under POCSO are attracted irrespective of the fact that the relationship was consensual or not. In second category of decisions, the courts have purposively interpreted the provisions and taken a practical approach in order not to unnecessarily penalise individuals for engaging in consensual intimacy. The Madras High Court in another ruling Vijaylakshmi vs. State employed purposive interpretation and recognised that consensual relationships among adolescents is a part of biosocial dynamics, therefore, 'painting a criminal colour to this aspect will only serve counter-productively'. However, the predicament lies in the fact that the provisions of POCSO are unambiguous, leaving no room for purposive interpretation. The judicial maneuvering by the judges in order to reconcile the unfairness of provisions of POCSO with the need to adopt a practical approach having regard to societal realities might have inadvertently legitimised what is explicitly prohibited by law. Furthermore, these divergent decisions give rise to contradictory precedents for future cases with similar factual matrices. As a result, this grants judges greater latitude to exercise judicial discretion, which is undesirable in the context of a special legislation like POCSO.

Ramifications Of Criminalising Consensual Relationships

The blanket criminalisation of all physical intimacies below the age of eighteen presents a range of issues, ultimately doing more harm than good. Adolescence is a phase in which the body undergoes fundamental changes. Research has shown that hormonal maturation during puberty drives teenagers to pursue romantic relationships which plays a key role in emotional growth. The oversimplified criminalisation of innocuous consensual relationships undermines one of the principal objectives outlined in the preamble of POCSO Act, which aims to ensure healthy emotional and social development of a child. Sections 19 and 20 obligates all individuals particularly counsellors, healthcare providers etc. to report any offence under the POCSO Act which comes into their knowledge and failure to do so is punishable under section 21 with maximum imprisonment of six months or fine or both. The fear of facing criminal prosecution coupled with the risk of male partner being imprisoned discourages minors to access reproductive healthcare services. This requirement disproportionately affects couples from marginalised communities as they are the ones who are more likely to benefit from social services. This not only exacerbates the risk of unwanted pregnancies, unsafe abortions and transmission of sexually transmitted diseases but also violates the right to privacy and right to life of teenage couples guaranteed under Article 21 of the Constitution. Reports have also unobscured a troubling trend in which the family members of adolescent girls file complaints when they disapprove of consensual relationships. This tendency of parents emanates from the patriarchal belief that sexual purity of women belonging to the family symbolises the honor of the family which needs to be preserved. Thus, the provisions of POCSO are being weaponized by the parents as a mechanism to stifle the bodily autonomy of adolescents. Moreover, there is a possibility that these provisions are employed to delegitimise inter caste and inter religious unions. This can be corroborated by the fact that overwhelming majority of romantic cases invariably culminates in an acquittal in as much as the victim refuses to testify or turns hostile. Even where the victims testified to having participated in consensual sex, the courts were more inclined to record an acquittal.

Insights From Global Approaches

India has adopted what has been referred to as a fixed age rule that outlaws all sexual activity with or between persons under the age of eighteen, devoid of any other consideration. Nonetheless, numerous countries have embraced a more thoughtful and reflective approach in their legal systems. Most of the American states have adopted a comprehensive approach in their statutory rape laws factoring in various determinants like the age of consent, minimum age of victim, age differential between the victim and the defendant and minimum age of the defendant in order to prosecute. To illustrate, the state of Pennsylvania has set the age of consent at sixteen but the law still recognises consensual sex above the minimum age of thirteen where the age differential is not more than four. An individual is legally competent to consent to a sexual act when he or she has attained the age of consent. In circumstances where an individual has not yet attained the age of consent, other factors come into play. States have established a minimum age threshold, below which the consent of the victim is deemed irrelevant. Where, the victim has reached the minimum age of consent but not yet attained the full age of consent, the legality of the act is contingent upon the age differential i.e. the difference in ages between the victim and the accused. Several states have prescribed a maximum age differential beyond which the sexual act is statutorily prohibited. This approach takes into account the discrepancy in understanding and appreciation of the consequences of the sexual act between the participants and in a manner, ensures that the victim is not influenced into the act. Sixteen U.S. states have also set a minimum age for defendants to be prosecuted, though this is applicable only when the victim has attained the minimum age of the consent.

In Canada, the legal age of consent is sixteen, however, the law accommodates close-in-age exemptions, which varies based on the victim's age. For instance, for a fourteen or fifteen year old, close-in-age exemption is less than five years, but for a twelve or thirteen year old, close-in-age exemption is restricted to less than two years. The rationale behind this variation is the fact that the gap in cognitive development grows with increasing age differential which might vitiate consent. The close-in-age exemption does not applies where there is a relationship of trust, power, dependence, authority between the victim and defendant. The logic behind this exception is that the position of influence of the defendant in such relationships exacerbates the vulnerability of the victim which compromises his/her ability to provide informed consent. The South African Constitutional Court in the Teddy Bear Clinic case struck down section 15 and 16 of the Sexual Offences Act as ultra vires the Constitution of South Africa to the extent that they criminalised consensual intimacy between minors aged between twelve and sixteen. The court made a commendable ruling by holding that engaging in romantic relationships is a normal and healthy developmental process. It went a step ahead in as much as it recognized that criminalisation and stigmatisation of consensual intimacy is invasive and a blatant violation of minor's right to dignity.

Reimagining Consent

It is manifest that the provisions of POCSO and their inconsistent judicial interpretations has led to an undesirable situation. The allocation of resources of the already overburdened criminal justice system for the purpose of prosecuting consenting teenagers is not only counterproductive but also practically absurd particularly when the courts themselves have acknowledged the evolving capacity of teenagers to develop sexual relations. The overinclusive criminalisation that POCSO entails militates against the principle of best interest of child, as it stigmatises sexual curiosity, discouraging teenagers from seeking help and, in turn, making them more vulnerable to sexual abuse. The objective of POCSO is to protect minors from sexual exploitation and not to criminalize consensual relationships. However, the courts have taken a case-specific approach to reconcile the provisions of POCSO with the legislative intent and interest of the victim. Therefore, the legal uncertainty is set to continue until the Supreme Court clarifies the constitutionality of criminalizing consensual relationships or the Parliament amends the legislation. To realise the objectives of POCSO, a more multifaceted approach that strikes a balance between safeguarding minors from abuse and recognising their sexual autonomy is imperative. Introduction of age-appropriate sex education in high school curricula and awareness programs will enable teenagers to make more informed and risk free sexual choices. It is pertinent to note that the age of consent was revised from sixteen to eighteen after the Criminal Law Amendment Act, 2013, thereby, criminalising many consensual relationships in the age bracket of sixteen to eighteen. The suitability of the fixed age rule needs to be revisited to make space for consensual relationships. Incorporating factors such as age differential, type of sexual act, existence of exploitative relationship etc. is suitable to better gauge the competence of an individual to consent. Additionally, inspiration can be taken from the American model to establish a minimum age of consent that varies in proportionality with the nature of sexual act. Such exercise should be carried out only after extensive consultation with all stakeholders including members of the judiciary, law enforcement, healthcare providers, counsellors and all affected individuals.

Views are personal.