A legal tool for moral policing

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THE MEDIA has manufactured a storm over the age of consent, based on a campaign of misinformation and scaremongering. Age of consent does not mean the “age at which you are allowed to consent for sex”. It is a concept of criminal law that fixes the age below which ‘consent’ will not be a valid defence against a rape charge. Raising the age of consent to 18 means that if a 16 to 18-year-old boy is charged with rape, he will be convicted even if the girl tells the court she had consented.

The age of consent in India has not been ‘lowered’ suddenly from 18 to 16. since the 1983 amendments in the rape law in the Indian Penal Code, the age of consent has been 16.

It was only in November last year that the Protection of Children from Sexual Offences Act (POCSO), raised the age of consent to 18. And in February, the Centre’s Criminal Law (Amendment) Ordinance, hurriedly introduced in the wake of the Justice Verma Commission report, too fixed the age of consent at 18.

What about the argument that as the age of marriage is 18, the age of consent should be the same? The point is, if a 16 to 18-year-old boy has sex with his 16 to 17-year-old wife, he is not criminally liable, under the law, to be convicted for this. Even their marriage is not automatically invalidated; instead, when the couple turns 18, they have the choice of annulling or retaining the marital bond. So why should an unmarried 16 to 18-year-old boy of the same age face punishment as a rapist/sexual offender for consensual sexual contact with a girl of a similar age?

At the age of 16-18, it is true that pregnancy is not advisable medically, and so sex at that immature and vulnerable age should not be encouraged. However, it is equally true that mutual attraction between the sexes is absolutely natural at that age. What is needed is to equip youngsters not only to understand their body, and to respect and not despise that attraction, but also to deal responsibly with that attraction. What is certainly not needed is to criminalise that attraction and brand innocent boys as rapists.

Indeed, boys who are wrongly branded as rapists for a consensual relationship will only develop a distorted perception of sexuality and women, and therefore, will be more likely to become violent towards women!

Moreover, we live in a world where moral policing is a huge danger to young people’s lives and choices. Under the POCSO, a third party (parents, moral policing outfits, khaps, anyone) can file a complaint of rape against a boy, and the court will have to convict the boy ignoring the girl’s plea that it was consensual sex.

That is why many judges have pleaded that the age of consent be retained at 16 and not raised to 18, so they are not forced to convict young kids of rape even when it is obvious that the sexual contact was by consent. For instances of judges’ opinions, see ‘Proposed age of consent for sex regressive’ (Hindustan Times, 13 May 2012) and ‘Court urges rethink on age of consent’ (The Times of India, 30 April 2012).

If the age of consent is raised to 18, our gender-biased police, who harass couples even for sitting together in parks, will get another tool by which to extort bribes through threats of rape charges.

Will keeping the age of consent at 16 encourage trafficking and rape? Of course not — since trafficking and rape are crimes, no matter what the age. However, if the age of consent is raised to 18, what is more likely to happen, instead, is that young boys, especially among the Dalits or other oppressed castes, will end up facing rape convictions for consensual relationships with girls from the upper castes.

Women’s groups have suggested that the law incorporate a clause whereby a man who is four years or more older than a 16 to 18-year-old girl can be convicted of statutory rape irrespective of the ‘consent’ of the girl, since an older man can sexually exploit a young girl in circumstances where the ‘consent’ is not really ‘free’. But consensual relationships between youngsters of a proximate age should not be deemed to be rape.

(The views expressed here are personal)

Krishnan is Secretary, All India Progressive Women’s Association

letters@tehelka.com

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