Madras HC says consensual teen sex must be excluded from POCSO: Why experts are lauding move

The Madras High Court on Friday made significant observations acknowledging adolescent sexuality and the need to exclude it from the purview of Protection of Children from Sexual Offences (POCSO) Act. The court recommended that POCSO should be amended so that consensual sexual relations between a girl of 16 years and above, and a boy who is not more than five years elder to her, should not be considered as sexual assault under the Act.

Justice V Parthiban made these statements on a case of elopement by a couple. Presently, POCSO makes no distinction between sexual assault and consensual sexual relations between teenagers. Experts have often pointed out how this is misused in many ways; for instance, by disgruntled parents of an eloped underage couple to incriminate the boy. 

The court also noted the findings by the Tamil Nadu Commission for Protection of Child Rights (TNCPCR) which found that majority of the cases registered under POCSO are elopement cases. "Due to this, the actual cases of minor rape victims are not prioritized resulted in delays in rendering justice for the minor victims of rape," a report by the TNCPCR included in the judgment said. 

While civil society workers and legal experts have hailed the Madras High Court's differentiation between consensual sexual acts between teens and sexual assault as a much needed acknowledgement, there are also words of caution. 

The case

In the case that the HC was hearing, the elopement happened in June 2014 when the girl would have been around 17 years old. According to the complainant, her grandfather, she was kidnapped by her schoolmate who then married her in a temple by tying thaali, took her to Bengaluru and sexually assaulted her.

A Mahila court in Tamil Nadu's Namakkal district found the boy guilty and sentenced him to ten years of rigorous imprisonment under sections 5 and 6 (aggravated penetrative sexual assault) of POCSO and section 363 (kidnapping) of the Indian Penal Code. However, Justice Parthiban reversed the conviction given by the trial court, taking into account that the girl herself had denied the allegations of kidnapping. 

The judge added that the trial court had not taken into account the consent of the girl, despite there being inconsistencies in the prosecution's case for sexual assault. "The trial Court has also failed to appreciate that only when a case of sexual assault is made out, the question of consent being immaterial can be pressed into service," he said. 

Court observations on teen sexuality

-- The court made a case for normalising teen relationships and sexuality, calling the relationship between a girl below 18 with a boy of a similar or slightly above teenage "the result of mutual innocence and biological attraction" and that such relationship cannot be construed as an "unnatural" or "alien" between opposite sexes. Even though the girl in this scenario is capable of giving consent, provisions of POCSO do not take that into account if the relationship becomes sexual. 

-- The court recommended that "on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision."

-- In a progressive move, the court also took into account grooming, distinguishing it from consent. "The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence." 

Is 16 the appropriate age of consent?

Swagata Raha, a legal researcher, feels that while the court has demarcated 16 as the minimum age when consent for sexual acts can be given, it is a known fact that teenagers below that age are also engaging in consensual exploratory sexual activity. "While the acknowledgement of teen sexuality is welcome, we need to be careful to not hastily amend the Act to make the age of consent 16 without proper analysis of the trends. Lawmaking needs to be based on evidence," she says.

Meanwhile, Vidya Reddy of Chennai-based Tulir, an NGO which has been working with survivors of child sexual abuse, says that though it may sound arbitrary, there has to be a socially acceptable cut off and the age of 16 seems about right. 

However, both Swagata and Vidya caution against challenges of the age determination process, and therefore the age of consent should not be the only factor in determining sexual assault. "There is a huge number of people who do not have birth registrations in India and therefore it's difficult to ascertain their age," Vidya says. "Age determination is fraught with confusion and many cases end in acquittal because of prosecution's failure to prove that the victim was a child," Swagata adds. 

The grounds for consent

Interestingly, the Madras High Court's observation was already present in the form of a provision in the initial drafts of POCSO, Vidya says. Being one of the people who worked on the 2012 law, she recounts that the Law Ministry had approved of the draft which maintained the age of consent at 16, while also laying down many riders about how the consent was obtained. 

"There were many riders, like consent should not have been obtained under trickery, deceit, coercion or when the person was incapacitated, besides others. Later, we also included the concept of recklessness on part of the perpetrator, which is there in the Canadian law," Vidya says. The concept of recklessness on part of the perpetrator is defined  as when "defence is not available where the accused's belief arose from the accused's self-induced intoxication, or where the accused's belief arose from the accused's recklessness or willful blindness or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting."  

However, what finally emerged as the POCSO Bill from the Women and Child Development Ministry contained neither the lowered age of consent nor the riders for obtaining consent, Vidya says. 

Another aspect that needs to be considered in gauging consent is grooming. Grooming is a preparatory process where the abuser gains a child’s trust, with the intent to abuse him or her, while also manipulating the child to ensure he or she does not disclose the abuse. Consent given in these situations therefore, is under manipulation and not informed and enthusiastic. Swagata says that that there is a need to make this distinction and that children or teens who have been groomed into sexual abuse need to be given protection. 

A committee to look into heinous crimes against children

Apart from suggesting that the age of consent for sex be lowered, the Madras High Court also said that there was a need to look at why violent and heinous sexual crimes against children and women were on the rise. It also pointed to reasons like pornography, and objectification and stereotyping of women as objects of "carnal attraction" in films as possible reasons. 

Justice Parthiban called for the Tamil Nadu government to set up a high level committee comprising people like a social auditor, psychologist, social scientist etc., to investigate the reasons behind these serious crimes.