Age of consent: Why is teenage sex with consent illegal in India?

Indian sex passed a strict new law ten years ago to address cases of child sexual assault.

Yet, because the Protection of Children from Sexual Offences (Pocso) Act makes any sexual behavior by a kid under the age of 18 a crime, many adolescent boys in consenting relationships find themselves in legal trouble.

The "age of consent" is currently the subject of renewed debate, and there are increasing proposals to decriminalize underage sexual activity.

I was taken to visit a 16-year-old who had supposedly been raped several years earlier while working on a report about police sending female beat constables to a Delhi neighborhood with a high crime rate to increase women's safety.

The policewoman described her to us as a rape victim.

The girl denied being raped when I pressed her for her story, though.

She replied, "Main apni marzi se gayee thi (I went with him freely)".

The policewoman motioned for me to go as her mother started yelling at her.

She added that the neighborhood teen boy had been detained and was going to face rape charges after the girl's parents filed a complaint against him.

She concurred that the girl's connection appeared to be voluntary but insisted that the police were forced to open an investigation.

The incident I saw years ago is only one of the countless instances of underage Indian females engaging in sexual relationships that are labeled as rape every year.

A strict rule like Pocso was required due to the high prevalence of child sexual abuse; in a 2007 government investigation, 53% of children reported having experienced sexual abuse of some kind.

Nevertheless, it simultaneously raised the legal age of consent from 16 to 18, making millions of teenagers who engage in sex with adults criminals.

With more than 253 million teenagers, India has the largest cohort of teenagers in the whole world, and despite premarital sex being forbidden, polls show that a significant portion of them are sexually active.

More than 39% of women reported having sex before becoming 18 in the most recent National Family Health Survey (NFHS-5), the government's most thorough household survey. 10% of people in the 25-49 age range reported having sex before turning 15 years old.

As a result, there are now increasingly louder proposals for lowering the legal age of consent to 16, in line with the rest of the developed world and several South Asian nations.

According to advocates for children's rights, parents frequently employ the criminal justice system to restrict their daughters' sexuality and prevent them from entering into relationships, particularly those that are inter-caste or inter-religious.

They claim that making sexual behavior that occurs with consent illegal destroys lives and burdens the already overworked criminal justice system.

Data regarding the problem's scope are now available for the first time.

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7,064 Pocso court judgments handed out between 2016 and 2020 in three Indian states—West Bengal, Assam, and Maharashtra—were examined by researchers from the child rights organization Enfold Proactive Health Trust. The majority of the instances were girls between the ages of 16 and 18.

One in four incidents, or 1,715, were classified as "romantic" according to their analysis, which was published earlier this week.

According to the research, the figures would be significantly higher if they were compiled using data from all of India because, in tens of thousands of Pocso cases reported each year, the perpetrators were "friends/online friends or live-in partners on the pretense of marriage."

According to Swagata Raha, lead researcher at Enfold, "criminalizing adolescent sexual conduct, which is entirely normal, demonstrates the law is out of step with reality."

The bulk of the cases, according to the report, were brought by the girls' parents or relatives if they ran away from home or were discovered to be pregnant. In most of these situations, the police alleged rape, sexual assault, sexual harassment, or kidnapping.

Ms. Raha adds that this criminalization can have "severe ramifications" for both the girl and the boy. "And the relationship gets involved in the criminal court system."

"The girls are disgraced, humiliated, and stigmatized; if they refuse to return to their parent's house, they are placed in shelters. The boys are imprisoned or kept in surveillance homes for extended periods because they are considered juvenile offenders or accused minors.

"The accused then needs to go through investigation, custody, and trial and might risk 10 to 20 years in prison," she continues.

Fortunately, the vast majority of the 1,715 cases Ms. Raha and her team examined ended with acquittals.

According to the report, "convictions were a rarity and were only documented in 106 cases (6.2%) while acquittals were the norm in romantic cases with 1,609 or 93.8% being rejected."

This low conviction rate was caused by the fact that females confessed to loving the accused in 87.9% of cases, did not say anything that might have been used against them in 81.5% of cases, and in some cases claimed that their families had coerced them.

The high percentage of convictions also demonstrates that trial courts frequently adopt a lenient attitude when handling "romantic" matters. The criminalization of consensual sex among or with adolescents has received attention from India's higher judiciary in recent years.

A relationship between juveniles or minors with young adults is "not abnormal but a product of natural biological desire," Madras High Court Justice V Parthiban stated in 2019, rejecting a teen's sentence and recommending a revision to the age of consent.

And most recently, Chief Justice of India Dhananjay Chandrachud added his voice to the conversation by urging lawmakers to reconsider the legal age of consent.

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Unicef has also pushed India to decriminalize adolescent sex. According to Soledad Herrero, who is in charge of the organization's child protection efforts in India, "children have the right to protection, integrity, dignity, and involvement, even in their personal relationships."

The UN Committee on the Rights of the Child had emphasized the need to strike a balance between respect for their developing autonomy and protection, she noted.

According to Ms. Raha, "there is acknowledgment" from the judiciary and those working in the criminal justice system that it is necessary to view these "romantic" cases differently and that parliament has to reexamine the law.

We are requesting the decriminalization of consenting adolescent sex; we can look at an Indian model, but we must acknowledge that adolescent sexuality is normal.