Our state defines a child as anyone under the age of 18, with the spirit to protect minors from sexual abuse. But this has created another problem because even consensual adolescent sexuality is considered a crime, and that of exploitation and violence.
The Indian state criminalises all sexual activity and sexual behaviour by the individuals under the age of 18. It is extremely important for us to understand the impact this provision has created in today’s society.
How does the state criminalise adolescent sexuality?
Adolescent Sexuality is criminalised through two acts:
- POSCO: Protection for Children from Sexual Offences Act (2013)
- PCMA: Prevention of Child Marriages Act (2008)
POSCO would consider a 17-year old boy a criminal, even for having a consensual sexual relationship with another 17-year old, even if both the participants had equal responsibility in the sexual relationship. The question of consent would not even arise in a minor’s case. Every sexual activity is a crime and can be acted against.
“I feel this law is very sexist as it considers only the guy to be the offender. A girl can also initiate it and therefore both of them are equally responsible if they engage in consensual sex,” said a college student.
What is the harm in this?
These acts are often used by parents in a punitive manner against underage couples who have engaged in consensual sexual relationships or against self-arranged marriages. Often it is because of what families consider as a “girl’s honour” in India. Getting involved in relationships outside of one’s caste and religion is also a problem for parents and a motive for accusing the spouse of their daughter with sexual assault.
Besides, the POSCO demands mandatory reporting of adolescent sexuality from service providers like doctors, counsellors, et cetera. This means that all these people are required to report any sexual activity involving a minor, whether it was consensual or not.
This makes it a challenge for minors and underage individuals (especially girls) to seek help and guidance regarding sexual relationships and activities. Seeking medical and psychological treatment and help from doctors in the form of abortions, contraceptives & protection or therapy regarding this matter is almost impossible.
This can also lead to a delay in abortions beyond the legal limit, which can force underage girls to take up unhealthy and dangerous methods of abortion, or forcefully go through delivery.
POSCO also puts medical professionals into a dilemma as the 1971 Medical Termination of Pregnancy Act (which governs the circumstances under which comprehensive abortion can be provided) only requires the doctors to get written consent of a guardian in case of a minor. It does not require the professionals to report to the police. This creates a conflicted position for doctors, about when and if to inform the police.
There is no dispute regarding the fact that there is merit in the laws against child sexual abuse. But this often hinders the access to safe medical and psychological services for minors. Respecting “the best interests of the child” mandate, the POSCO Act should consider and work towards safe access to such facilities for young girls.
In addition to that, it also creates an idea in the minds of young adolescents that all sexual activity is inherently wrong and confuses them about how to identify actual sexual violence and harm from safe sex. Sex is extremely stigmatised in India, with a lack of sexual education for minors. Porn is extremely easy to access in comparison to sex education, which is absurd when we think about it. Such acts like POSCO can further increase this problem.
The logical argument is that the state punishes adolescent sexual offenders above the age of 16 in the same way as adult sexual offenders. Then why don’t these same adolescents above the age of 16, do not have the same power of consent as adults? There is a constant dilemma about whether the state should decrease the age of consent for adolescents to 16 or not. This cannot be done just so. Responsible education about sex is necessary.
What can be done?
Decriminalisation of adolescent sexuality (when consensual) is essential to destigmatise sexuality in India. With modernising society, the law should also catch up and evolve with it. Instead of criminalising adolescent sexuality, we as a society should work towards making our young generation more aware of sex and its implications. Things like how to engage in safe sex, how to differentiate between bad touch and good touch, and how to know whether they’re prepared for sex or not, should be taught in schools. Sexual education would enable youngsters to make responsible decisions for themselves and capable of being consenting individuals, at least above the age of 16.