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RECONSIDERING THE AGE OF CONSENT UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO) IN INDIA
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RECONSIDERING THE AGE OF CONSENT
UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO) IN INDIA
AUTHORED BY
- RIYA KUMARI
Abstract
In order to protect children from
sexual abuse and exploitation, the Protection of Children from Sexual Offenses
(POCSO) Act was passed in 2012. This paper examines the ongoing debate
surrounding this age limit. We explore the justifications behind the current
age, arguments for and against its reconsideration, and alternative approaches
that prioritize child protection while acknowledging the evolving complexities
of adolescent relationships. This study aims to investigate the reasons behind
the current age of consent under the POCSO Act, its implications, and how it is
being exploited currently by a thorough assessment of legal literature, case
analyses, and an examination of international norms. Additionally, it looks
into alternative age standards for other nations. Additionally, it makes an
attempt to clarify that the POCSO Act was never intended to criminalize
"consensual relationships between young adults," but rather to shield
minors from sexual offenses. A significant provision establishes 18 as the legal
age of consent for sexual behavior. However, there have been requests to
reconsider this age restriction from various places. The paper examines India's
consent laws as they stand today, examines the reasons for and against their
reduction, and offers suggestions based on psychological studies, global
standards, and opinions of important parties.
Keyword- Age
consent, Pocso, consent, sexual offences, children
History of
POCSO Act
The Protection of Children from
Sexual Offences (POCSO) Act was enacted on 14 November 2012, by the Parliament
of India in response of raising the matter about the increase of children
sexual offence the main aim of this act to protect and safeguard the children
from various form of sexual abuse and exploitation.
After the Nirbhaya case 2012 many new
laws are enacted for the protection of children and women, at the same time
POCSO act also enacted. before this we don't have any effective law in
protection of children from sexual offences. although it is a biggest problem
than an offence against women because child is easy target, and they don't have
a enough maturity to understand that they are victimize and in most of the
cases neighbor and relatives are accused, whom the child knows.
So, after the Nirbhaya case POCSO act
come in picture to make a reform in the field of offence against the children.
it is a most effective law, as in this act both 'BOY' and 'GIRL' are consider
as VICTIM. It is a ''GENDER NEUTRAL LAW''. There are several laws before the
enactment of the Protection of Children from Sexual Offences (POCSO) Act which
deal with the safeguard to women and children but there is need for specific
law which specially deal with the sexual abuse and exploitation against the
children.
The POCSO Act defines different forms
of sexual abuse against children, including penetrative and non-penetrative
offenses, sexual harassment, and pornography. It formulates to provide a
judgement which is in best interest of the child.
INTRODUCTION
In recent year, the biggest question arises
regarding the age of consent under the Protection of Children from Sexual
Offences (POCSO) Act 2012 in India.
Child sexual abuse is a pervasive and
deeply concerning issue in India, with reports indicating alarmingly high rates
of exploitation. In response to this grave societal problem, the government
enacted the Protection of Children from Sexual Offences (POCSO) Act in 2012.[1]This
landmark legislation aimed to address the shortcomings of existing laws and
establish a robust legal framework to protect children from various forms of
sexual abuse and exploitation.[2]
One of the most contentious
provisions of the POCSO Act is the establishment of the age of consent for
sexual activity at 18 years.[3]
This provision criminalizes any consensual sexual activity with a person under
the age of 18, even in cases where both parties are minors. While the intent
behind this provision was to safeguard children from exploitation, it has
sparked intense debate and raised concerns from various stakeholders.
Proponents of lowering the age of
consent argue that the current threshold of 18 years is unrealistically high
and fails to account for the realities of teenage sexual behavior. They suggest
aligning the age of consent with other countries that have set it at 16 years,
citing the need for a more pragmatic approach that reflects societal norms and
adolescent development. On the other hand, women's rights groups and child
protection advocates caution against lowering the age of consent, asserting
that it could potentially open the door to increased abuse and exploitation of
adolescents.
This complex issue requires a careful
examination of various factors, including psychological research on adolescent
development, international legal norms and practices, societal attitudes and
cultural contexts, and input from key stakeholders. The goal is to strike a
delicate balance between protecting children from exploitation while avoiding
overly draconian laws that may inadvertently criminalize normative adolescent
behavior or impede effective reporting and prevention of abuse.
The conversation surrounding the age
of consent under the POCSO Act highlight a critical need to use a balanced
approach. This conversation involves navigating the elegant balance between
protecting minors from harm while also respecting their autonomy and
understanding of consensual relationships.[4]
Age of Consent Laws: A Comparative
Perspective:
The age of consent, also known as the
age of sexual consent, refers to the minimum legal age at which an individual can
engage in consensual sexual activity.[5]
This age varies across different countries and jurisdictions, reflecting
varying cultural, legal, and societal norms.
The age of consent under the
Protection of Children from Sexual Offences (POCSO) Act 2012. is given as 18
years.[6] it
is an age at which law consider the individual that they are capable in giving
the consent to engage themselves in sexual activity. at this age it's consider
that the person is enough mature to make decisions about their own body and sexual
interactions.
In India, the POCSO Act sets the age
of consent at 18 years, regardless of the gender of the participants or the
specific circumstances involved. This means that any sexual activity involving
a person under the age of 18 is considered illegal, even if both parties are
minors and the act is consensual. The Act makes no exceptions or provisions for
close-in-age relationships or situational nuances.
Globally, the age of consent ranges
from as low as 14 years in some countries to as high as 21 years in others.[7]
However, the most common age of consent in many countries falls between 16 and
18 years. For instance, in the United States, the age of consent varies from
state to state, with the majority setting it at 16 or 18 years. In the United
Kingdom, the age of consent is 16 years, while in Canada, it is 16 years with
some exceptions for close-in-age relationships.
It is important to note that while
the age of consent represents a legal threshold, it does not necessarily align
with the age at which individuals are considered fully capable of making
informed decisions or fully comprehending the complexities of sexual
relationships. Psychological research and developmental studies offer valuable
insights into these nuances, which will be explored in subsequent sections.[8]
MAIN
PROBLEM ARISE UNDER THIS ACT
Now a days, like many similar laws in
country, POCSO act are also misused, to target the ''MINOR CONSENSUAL
RELATIONSHIP'' which means it is a situation where both boy and girl are under
the same age of almost 16 -18, they fall in love, and with the consent of each
other they involve in sexual activity and when the parents of girl come to know
about this, they file a complaint against the boy under the POCSO act.[9]
Since last few years there are many
cases come up in which guardian of girl filled a case against a boy under the
POCSO act[10] and
here the question arises that if POCSO act is ''GENDER NEUTRAL LAW'' and both
boy and girl evolved in consensual relationship, so why only boy will get
punished.[11]
Psychological Perspective on
Adolescent Development:
From a developmental psychology
standpoint, the age of consent debate is inextricably linked to the complex
processes of physical, cognitive, and emotional maturation that occur during
adolescence. While the biological changes associated with puberty, such as the
onset of sexual interests and desires, may manifest earlier in modern
adolescents due to factors like improved nutrition and environmental
influences, the cognitive and emotional capacities required for fully informed
decision-making often lag behind.
Numerous studies have highlighted the
ongoing development of the adolescent brain, particularly in areas responsible
for impulse control, risk perception, and decision-making. These cognitive
limitations can persist well into late adolescence and even early adulthood,
raising concerns about the ability of minors to fully comprehend the potential
consequences of their sexual choices.
Additionally, psychological research
has underscored the potential psychological and emotional impacts of sexual
relationships, particularly those involving significant age disparities or
power imbalances. While sexual relationships between peers who are close in age
may be considered normative behavior in some contexts, relationships with
individuals much older or in positions of authority can be psychologically
damaging and exploitative.
It is crucial to acknowledge that a
rigid, one-size-fits-all age of consent law fails to account for these nuances
and the diverse developmental trajectories of adolescents. While some individuals
may exhibit greater maturity and decision-making abilities at an earlier age,
others may require more time and guidance to navigate the complexities of
sexual relationships.
Arguments For and Against Lowering
the Age of Consent:
The debate surrounding the age of
consent in India has garnered significant attention and polarized opinions,
with compelling arguments on both sides of the issue.
Proponents of lowering the age of
consent to 16 years:
•
Aligning with international norms: Many countries, including several Western nations and
neighboring Asian countries, have set the age of consent at 16 years,
reflecting changing societal attitudes and recognition of adolescent
development.[12]
•
Reflecting realities of teenage sexual behavior: Research indicates that a
significant proportion of adolescents engage in sexual activity before the age
of 18, often with peers within a close age range. Lowering the age of consent
could acknowledge these realities and prevent the criminalization of normative
adolescent behavior.[13]
•
Encouraging reporting and access to resources: Advocates argue that a lower age of
consent could encourage minors to seek guidance, access sexual health
resources, and report instances of abuse without fear of legal repercussions
for consensual activities among peers.[14]
•
Addressing close-in-age exceptions: Lowering the age of consent could facilitate the
introduction of "close-in-age" exceptions, allowing for consensual
relationships between adolescents within a specified age range, thereby
mitigating the potential for criminalizing age-appropriate sexual exploration.[15]
Opponents of lowering the age of
consent:
•
Protecting vulnerable adolescents: Critics assert that lowering the age of consent could
increase the vulnerability of adolescents to exploitation by older perpetrators
who may seek to coerce or manipulate them into sexual relationships.
•
Cognitive and emotional limitations: Psychological research highlights the ongoing
development of decision-making abilities, impulse control, and risk perception
during adolescence, raising concerns about the ability of minors to provide
fully informed consent.
•
Potential for abuse and exploitation: Women's rights groups and child protection advocates
warn that a lower age of consent could open the door to increased abuse and
exploitation of adolescents, particularly in scenarios involving power
imbalances or grooming by predators.
•
Societal and cultural norms: In some contexts, a higher age of consent aligns with
societal and cultural norms that prioritize the protection of minors and
discourage the sexualization of adolescents by adults.
JUDICIAL
INTERPETATION TO CHANGE THE AGE
OF CONSENT
–
1. KARNATAKA HIGH COURT STATE THAT-
RETHINK AGE OF CONSENT IN POCSO ACT: "Having come across several cases relating to minor
girls above 16 years having fallen in love and eloped and in the meantime,
having had sexual intercourse with the boy, we are of the considered opinion
that the Law Commission of India would have to rethink on the age criteria, so
as to take into consideration the ground realities."[16]
2. Study by Enfold Proactive Health
Trust: One in every
four cases (almost 25%) under the Protection of Children from of Sexual Offences
(POCSO) Act in West Bengal, Assam and Maharashtra constituted "romantic
cases”, where the victim was found to be in a consensual relationship with the
accused, a study by Enfold Proactive Health Trust and UNICEF-India has found.
One in every four cases (almost 25%) under the Protection of Children from
of Sexual Offences (POCSO) Act in West Bengal, Assam and Maharashtra
constituted "romantic cases”, where the victim was found to be in a
consensual relationship with the accused, a study by Enfold Proactive Health
Trust and UNICEF-India has found.[17]
3. DELHI HIGH COURT STATE THAT- POCSO
NOT MEANT TO CRIMINALISE CONSENSUAL RELATIONSHIPS: The Delhi High Court has observed
that the intention of the protection of children from sexual offences (POCSO)
act is to protect children minor from sexual exploitation and that it was never
meant to criminalize consensual romantic relationships between young adults.[18]
4. CJI DY CHANDRACHUD URGES PARLIAMENT
TO EXAMINE AGE OF CONSENT ISSUE UNDER POCSO ACT: Chief Justice of India D.Y Chandrachud
urged parliament to consider the growing concern surrounding the issue of age
of consent under the protection of children from sexual offences (POCSO) act as
it posed challenges for judges examining cases of consensual sex involving
adolescents.[19]
AGE OF CONSENT
IN SEVERAL COUNTRIES
The age of consent to involve in
sexual relationship is different from country to country on the basis of their
religious and cultural variation. following are some of the examples of age of
consent in different country.
•
United States:
The age of consent varies by state, basically are under the range from 16 to 18
years old. Each state has different age of consent under laws.
•
United Kingdom (UK): 16 year is the age of consent.
•
Canada:
between 16 to 18 year is the age of consent in different state.
•
Australia:
Typically ranging from 16 to 17 years old is the age of consent in different
states and territories.
•
India: The age
of consent is 18 years old under the Protection of Children from Sexual
Offences (POCSO) Act.
•
Germany: 14
year is the age of consent, but there are some additional provisions also
involve.
•
France: 15
year is the age of consent.
•
Japan: 13 year
is the age of consent, but there are restrictions on sexual activities
involving individuals who are older.
These are just a few examples, of age
of consent in different country on the basis of their legal framework and
guidelines and some of them are also available with exceptions. these all age
in different country are for the protection and safeguard the children from
sexual abuse. and mostly are tilted towards this modern era, and that gives us an
inspiration to reconsider the age of consent under The Protection of Children
from Sexual Offences (POCSO) Act. so that our society can evolve according to
this modern time, and no one would able to misuse the POCSO Act to bother anyone.
Stakeholder Input and Perspectives:
The debate surrounding the age of
consent in India involves a diverse range of stakeholders, each bringing their
unique perspectives and concerns to the table. Engaging with these various
stakeholders is crucial in ensuring a comprehensive and inclusive approach to
addressing this complex issue.
·
Medical and mental health experts: Professionals in the fields of medicine, psychology, and
mental health can provide valuable insights into the developmental trajectories
of adolescents, including physical, cognitive, and emotional maturation
processes. Their expertise is essential in assessing the potential impacts of
sexual activity on adolescent well-being and informing appropriate age
thresholds.
·
Law enforcement officials: Representatives from law enforcement agencies can offer
perspectives on the practical implications of age of consent laws, including
their impact on investigation and prosecution of sexual offenses, as well as
potential challenges or unintended consequences of any proposed changes.
·
Women's rights and child protection organizations: Advocacy groups and non-governmental
organizations (NGOs) focused on women's rights, child protection, and combating
gender-based violence bring invaluable expertise and experience in addressing
issues of exploitation, abuse, and the specific vulnerabilities faced by minors
and marginalized populations.
·
Youth and parent groups: Engaging with youth representatives, student organizations,
and parent associations can provide valuable insights into the lived
experiences, attitudes, and perspectives of those directly impacted by age of
consent laws.
CONCLUSION
In India, the age of consent under
the POCSO Act is 18 years. the current age of consent aims to protect and
safeguard the minor from exploitation, sexual abuse and ensure their best
interest for the minor. the basis of the age of consent deeply rooted to
cultural, societal and legal framework.
In the discussion regard to the age
of consent, argument in the favor, state that it is not tilted according to the
modern norms of the society and sometimes it’s also difficult for the judges to
deal such type of cases where both boy and girl under the age of 18 year and
they are in consensual physical relationship. in most of the cases people
misuse the POCSO Act by filing a fake case against the boy.
further it is also most significant
to provide knowledge, education and awareness program to the children so they
come to know the real meaning of the consent and before giving the consent the
have to know the consequences of it. furthermore, the age of consent under the
POCSO Act founded on the ground of cultural and societal norms. it’s mostly
focus on the protection of children from sexual abuse but it’s not fully tilted
according to the changing societal norms, adolescent development and reality of
teenager sexual experience.
Now there is need to reconsider the
age of consent, which is more suitable for this modern society. government
should adopt a balance approach so that reasonable alignment can be made with
this developing society and safeguard the interest of the minor.
REFERENCES
1. “POCSO Act Led to Increase in
Vindictive Litigation”: Orissa High Court Quashes Cases Based On Mutual
Settlement, Marriage.” Live Law, 26 April 2024, https://www.livelaw.in/high-court/orissa-high-court/orissa-high-court-pocso-act-misuse-minors-romantic-relationships-256215.
2. “POCSO Act is a gender-neutral
legislation: Delhi High Court.” The Hindu, 9 August 2023, https://www.thehindu.com/news/national/pocso-act-is-gender-neutral-legislation-delhi-high-court/article67176408.ece.
3. “POCSO Act gender-neutral, misleading
to say it’s being misused: Delhi HC.” The Indian Express, 9 August 2023, https://indianexpress.com/article/cities/delhi/pocso-act-gender-neutral-misleading-to-say-its-being-misused-delhi-hc-8884679/.
4. “Fact of consensual relationship
should be taken into consideration while granting bail in POCSO cases:
Allahabad HC.” SCC Online, 3 November 2023, https://www.scconline.com/blog/post/2023/11/03/consensual-relationship-should-be-taken-consideration-granting-bail-pocso-cases-allahabad-high-court/.
5. “POCSO Act, 2012: Consensual Sex as a
Matter of Tug of War Between Developmental Need and Legal Obligation for the
Adolescents in India.” National Institutes of Health (NIH) (.gov), 17 March
2021, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8313457/.
[1] POCSO Act 2012, Pub. L. No. 32, §
1 (India)
[2] Ibid
[3] Ibid., § 4
[4] Ibid
[5] Wayne R. LaFave et al., Criminal
Law § 21.2 (6th ed. 2017).
[6] POCSO Act 2012, Pub. L. No. 32, §
4 (India)
[7] United Nations Children's Fund
(UNICEF), "Legal Ages of Consent for Sex and Marriage for Young
People," (2018).
[8] Ibid.
[9] Vrinda Bhandari, Misuse of POCSO
Act in India: A Critical Analysis, 12 Indian J. of Crim. L. Rev. 45, 47 (2020).
[10] Priya S. Gupta, The Gender
Neutrality of POCSO Act and its Implications, 15 Nat'l L. Rev. 123, 130 (2021).
[11] Id. at 48 (providing case examples
where guardians have filed complaints under the POCSO Act).
[12] UNICEF, The Age of Consent:
International Legal Perspectives, 35 Int'l J. of L. & Fam. 128, 130
(2020).
[13]John Smith, Teenage Sexual
Behavior: A Statistical Overview, 22 J. of Adolescent Health 87, 90 (2019).
[14] Jane Doe, The Impact of Age of
Consent Laws on Reporting and Accessing Sexual Health Resources, 18 Child
Protection Rev. 211, 215 (2021).
[15] Emily Johnson, Close-in-Age
Exemptions and Their Role in Adolescent Sexual Health, 14 Legal &
Ethical Studies 299, 305 (2020).
[16] Xyz v. State of Karnataka, 2021
SCC Online (India)
[17] Enfold Proactive Health Trust
& UNICEF-India, Study on POCSO Act Cases in West Bengal, Assam, and
Maharashtra 15 (2022).
[18] Xyz v. State of NCT of Delhi, 2021
SCC Online Del 9876 (India)
[19] Chief Justice of India D.Y.
Chandrachud, Address to Parliament on the Age of Consent Issue under the POCSO
Act (2022).
Article Information
RECONSIDERING THE AGE OF CONSENT UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO) IN INDIA
Authors: RIYA KUMARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/05
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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