Child, law and consensual sex

GS-II | Polity

Why in the News?

Various cases registered under the POCSO ACT, 2012  were quashed by High Courts (HCs) of Bombay, Madras & Madhya Pradesh on the grounds of 'consensual sex' between the victim and the accused.

 

What are the concerns regarding the judgments of HCs?

The Madras HC has quashed a case involving a 17-year-old girl citing consensual sex.

1.       Creates a gap between the apex court and HCs interpretations
        Supreme Court Judgment in Independent thought vs. UOI case- even sexual intercourse with a minor wife is rape

2.      This goes against the very basic definition of 'child' and 'age of consent' as18 years as mentioned in the POCSOact.

3.      The purpose of Sec 375 of IPC (sexual intercourse weather with or without her consent is rape if she is under 18 years of age) gets defeated.

4.      Goes against the best interests of the minor girls - Even in cases of
·         Consensual sex, whether the girl really understood the consequence of early pregnancies is questionable.

About:

Main features of POCSO Act, 2012

1.       Defines Child as any person below the age of 18years.

2.      Child friendly trial system.

3.      Death penalty for rape of child less than 12 years of age.

4.      Special courts to adjudicate cases of POCSO Act.

5.      No time limit for reporting of cases by the victim.

6.      Protection against sexual abuse, harassment, pornography and trafficking for children less than 18 years of age.

7.      Gender-neutral legislation.

Issues associated with the POCSO act relating to 'consensus':

1.       Criminalizing consensual relationship

a.      Used as a tool by parents to curtain sexual expression of girls and attempt to safeguard family honour.

b.      Victim girls become voiceless as it violates their Right to life, privacy and dignity.

2.      Impeded adolescents' Right to barrier-free access to sexual and reproductive Health Services.

3.      Mandatory reporting to police under the POCSO act has pushed girls to unsafe abortions.

4.      Madras High Court: Adolescent romance marks an important sign for adolescents' self-identity, functioning and capacity for intimacy.

5.      Institutionalization of adolescence especially girls - as the girl child refuses to go along with her parents for any reasons.

6.      Male child victim cases go unreported (the National Crime Records Bureau shows only 0.8% cases registered related to male child victims).

Other issues related to POCSO Act:

1.       The statement of the girl child victim has to be recorded by women SI, but faults due to following reasons,

·         Poor strength of women staff with only 10% women workforce in the police stations.

·         IUCAW (Investigation Unit on Crime against Women) mandates one third of women officers in the total workforce, but this remains largely unmet.

·         Mahila desks for registering complaints related to women are also largely understaffed.

2.      Performance of banned two finger tests

3.      No punishment for those who retract their statement during the case proceedings.

4.      Issue in age determination whether it has to be based on Date of Birth in school or date of birth in Hospital

·         This dilemma is often used to fake minor as major for escaping provisions related to consensus and damage to private parts.

5.      Pressure on Investigating Officers (IO) to submit a charge sheet within 2months. This pressures the IO for investigation completion and not quality.

6.      Delay in judgment

·         Kathua Rape case - Conviction of the accused took 16 months.

7.      Overlap of 'Age' provision of POCSO Act and Juvenile Justice Act.

 

Way forward:

1.       Comprehensive sexuality education to

a.      Enable adolescents to make informed decisions.

b.      Impart skills & attitudes to vulnerable groups.

2.      Amendment to POCSO act and IPC provisions to decriminalize consensual acts of adolescents greater than 16 years of age.
·         Till that law enforcement agency, Child welfare committees and Juvenile Justice boards should use their discretion to act in the best interest of the child.

3.      The Bureau of Police Research and Development should analyse cases of
·         Consensual sex to help the Central govt. to take decisions regarding reduction of age of consent.

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