CRIMINALISING ROMANCE? THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT
Updated: Aug 28, 2020
By- Mugdha Mohapatra, 4th Year B.A L.L.B Student at National Law School of India University, Bangaluru
In this paper, I will argue that the lack of consideration for consent under the Protection of Children from Sexual Offences (POCSO) Act 2012 violates a child's right to dignity and privacy. I will also attempt to prove that the absence of taking into account consent also stands against articles 12, 16, and 18 of the United Nations Child Rights Convention (UNCRC) 1989. I will first examine how sections 3, 7, 19, and 21 of the POCSO act violate the right to dignity and privacy of a child. Practical problems encountered in the implementation of these sections of the POCSO act have been outlined. Lastly, a possible solution has been presented.
VIOLATION OF RIGHT TO DIGNITY AND PRIVACY
According to section 2(d) of the POCSO Act, a child is anyone below 18. The broad aim of this act is to protect children from all forms of sexual offenses, protect the privacy of a child, and fulfill the state's obligation under the UNCRC. In doing so, I contend that it ignores the right to dignity of a child. Before understanding how this is true, one thing needs to be understood. Under article 21 of the Constitution, children have the right to dignity and other fundamental rights. They are not merely extensions of their parents and hold individual rights. Section 3 and 7 define the terms 'penetrative sexual assault' and 'sexual assault.' The definitions exclude any allowance for taking into account the children's views involved in the commission of said offences. According to the report of the Rajya Sabha standing committee, there should be no allowance of consent as this would place the victim under focus. Only the conduct of the accused should be taken into account. But what about scenarios where both parties are children? According to a clinical psychiatrist interviewed by the Centre for Child and Law-NLSIU, Bengaluru youngsters these days can be emotionally and psychologically mature. The law treats the child as a criminal as someone who has committed a wrong. This, in turn, leads to a mixture of shame, embarrassment, and regret.
Due to increased exposure to the media and the internet, sexual exploration is not uncommon among children below 18. In such an environment, this act's provisions can lead to an environment where children are under a constant threat of being subject to ostracism by being defined as criminals. Under section 34 of the act, youngsters involved in the commission of an offence under the POCSO act shall be dealt with section 10 under the Juvenile Justice Act. In the best-case scenario, the child will be apprehended by a special police unit or a child welfare officer and, after an inquiry, either be released or placed in a juvenile home. According to the J.S.Verma committee report, these homes are yet to attain the infrastructure necessary for reformation or rehabilitation. Forms of social behavior by the young are characterized as disruptive and deviant, rather than being recognized as emotional responses to social constraints or strategies to cope with local contexts.
In the Indian context, a large number of cases filed under the POCSO are by disgruntled parents against their daughter's choice of partner. In State v. Vikram, it was alleged that the accused had kidnapped the victim and committed rape. The victim herself stated that she was in love and had accompanied the victim willingly. The father of the victim later withdrew the case. Criminalization of romantic relationships leads to minors' exposure to the harshness of the criminal justice system and impedes healthy attitudes to sexual behaviour. Another unintended consequence of criminalization of all kinds of sexual conduct between minors is that it is in violation of Article 5 and Article 17 of the UNCRC that relates to access of information regarding physical and mental health. Declaring sexual conduct as illegal pushes such issues to the background and hinders children's access to sexual education. Under the reporting requirements of sections 19 and 21 of the POCSO act, a parent, counselor, or anyone a child may be comfortable sharing information with, is now obligated to report such an act as a crime. Such provisions intensify risk to adolescents by weakening support structures, preventing adolescents from seeking help, and pushing adolescent behavior to no longer be protected.
The Supreme Court has observed that "privacy at its core includes the preservation of personal intimacies...privacy connotes the right to be left alone."
Article 16 of the UNCRC holds that children should have the right to privacy. This is not to imply that such a right is unqualified or unrestricted. Criminalizing romantic relationships among minors allows police officers, prosecutors and judicial officers to probe into a deeply personal sphere of children's lives. ChildLine operators have noticed that children are often uncomfortable to speak on these matters openly in court or in front of their parents.
In cases such as State v. Rahul Balu Gheghadmal & Anr, the victim first admitted she was in a romantic relationship with the accused, then changed her statement during the examination-in-chief. What I would like to draw attention to is the fact that the child had to interact with several representatives of law enforcement agencies and repeatedly express the nature of what had happened. Such interaction with law enforcement harms the mental health of a child.
Article 12 of the UNCRC gives children the right to be heard and taken seriously. Although India's commitment to the UNCRC is not absolute or binding, it is relevant to appreciate the reasons for giving children this right. Priscilla Anderson has argued that children are just as able to make decisions in complex factual information, judgments of relative risks, ethical dilemmas, and highly emotional contexts.
This is not to discredit cases where the victim has been "groomed" by the accused, but to just bring to the fore the necessity to understand the contexts in which children have made decisions. The result of this can be seen in the numerous cases in which the victims have turned hostile or have appeared as witnesses for the defense.
In State v. Akhilesh Harichandra Mishra the victim was 15 years old when she eloped and married the accused. The judge in the case held that the matter had been settled as the girl had consented to intercourse. If this case had been any different, the minor who was dependent upon the accused would have been deprived of his support. In cases where the victim is pregnant due to intercourse, the judges have preferred an acquittal over conviction as the victim was dependent upon the accused. Such considerations should not be left to the discretion of the court.
There is a legal problem when similar cases are treated arbitrarily by courts, in cases like State v. Sachin Gotiram Kedar, the special court held that as the victim was 17 years old, she was capable of understanding the consequences of sexual intercourse. In other cases, consent or the victim's capacity to "understand consequences" is not taken into account.
The exception provided for marital rape under section 375 of the IPC, which did not classify sexual intercourse with a man and his wife not under 15 years as rape, contradicted the provisions of POCSO. (The Supreme Court has read down the exception to section 375) Theoretically, section 42A of POCSO overrides section 375 of the IPC. Still, courts have taken contradicting views in similar cases; in Jahirul Maulana v. State of Assam, the court quashed the charge sheet against a man who had allegedly raped a minor, However, the Karnataka High Court in Soni Nihal v. Sri. Sandeep Patel, with nearly identical facts and observed that the "criminal proceedings initiated for the alleged offense [rape] could not be quashed."
A POSSIBLE SOLUTION
Having enumerated the problems and challenges in the prevailing system, I propose a possible solution based on a study of the system of the age of consent prevailing in Germany. This is not to say that it is a fool-proof system but simply propounds a more effective solution. Under sections 176, 180, and 182 of the German Criminal Code, any sexual act with a minor below the age of 14 is punishable except if both parties are of the same age. In the age group of 14-16, consensual sexual activity with some of the same age is permitted. In the age group of 16-18 are eligible to consent to sex except if, in an adult-child relationship, the adult is entrusted with the care or protection of the child. In the age of consent laws of Germany, Canada, Switzerland, and Australia, a "close in age exemption" is also provided.
In the Indian context, a tiered system of age on consent laws and a close in age exemption will be a significant departure from the existing system. Although such a system would have to be reworked based on our country's distinctive social conditions, it will allow teenagers autonomy over their bodies and not push such issues to the background and allow them to seek help when required. While looking at cases of adult-child relationships, the court may also have the freedom to consider specific contexts and circumstances.
Lastly, the necessity for sex education for children of all age groups can't be denied. Comprehensive sex education recognizing the different situations facing youngsters today is much more effective than exposing them to harsh consequences under the law.
Sexual repression means repression of one's identity and their right to be themselves, this stands true in the case of criminalization of sexual activity amongst young people. It is impractical in the context of the evolving capacities of children to disregard their choices. Moreover, it has the negative effect of depriving them of their right to seek guidance and support.
In the actual application of this law, several internal contradictions have been noted. Decisions have been made in blatant disregard of the POCSO Act and consideration of other factors. Contradictions with existing laws have also led to a subjective application of POCSO laws.
Therefore having understood the negative implications of a lack of age of consent in the Indian context and its harmful effects on children's development, a departure from the current system is crucial to a system where children's views and rights are taken into account.
Protection of Children from Sexual Offences Act, 2012, Statement of Objects and Reasons.
Society of Unaided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 3445.  Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development,  ZACC 35, (Constitutional Court of South Africa) [hereinafter Teddy Bear Clinic for Abused Children]. Parliamentary Standing Committee on Human Resource Development, Rajya Sabha, THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES BILL, 6.9 (2011). Centre for Child and Law, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Maharashtra [unpublished CCL-NLSIU]. Teddy Bear Clinic for Abused Children  ZACC 35 Report of the Committee on Amendments to Criminal Law, 21(c), (2013). M. Waites, The Age of Consent, 13 (2005). State v. Vikram, Special (Child) Sessions Case No. 6 of 2015, (Pune). Teddy Bear Clinic for Abused Children,  ZACC 35.  Justice K.S. Puttaswamy v Union of India, 2017 SCC OnLine SC 996 State v. Rahul Balu Gheghadmal & Anr Sessions, Case No. 240 of 2014, (Nashik) Supra note 8 P. Alderson, School students' views on school councils and daily life at school, Children & Society (2000) Supra note 5 State v. Akhilesh Harichandra Mishra, Spl. C. No. 165 of 2015 (Thane) State v. Sachin Gotiram Kedar Sessions Case No. 25 of 2015, (Nashik) Section 182, German Criminal Code, 1871. Supra note 7 at 27
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)