A debate, a long overdue one, is currently unfolding in India. Consent, a powerful word, has thus far failed to get its due in a country where sweeping generalisations, a patriarchal mindset and a vacuous Bollywood have often meant that the enormity of the word is lost in translation.
The age of consent in India currently stands at 18 years and the Law Commission says any tampering with the status quo will have ‘unintended consequences’ including an impact on the fight against child marriage and trafficking. These are serious concerns yet the debate to bring the age down to 16 years and re-instating the pre- 2012 status is not far-fetched either, ground realities and legal limitations point to how this may be a better solution to protecting our children. Incidentally till just over a decade ago in India males were not part of any legal framework.
The age of consent is defined as the age when a person by law can agree to marriage or sexual activities, depending on the country. It differs from giving assent which applies even to those under the legal age. The loophole that allows for criminalising of consensual relationships between young adults is not just anecdotal as the law interprets that there can be no consent among those who are below the age of 18.
Legal reforms should safeguard young adults
In a world flirting with the non-binary, the traditional binaries of good and bad have been long out of sync just as much as the simplistic good touch and bad touch. This othering often overlooks the coming of sexual age of a generation where adolescents have a parallel online existence; they watch shows on OTT platforms at the same time as a global audience refuting all arguments of a ‘western influence spoiling our children.’ Child psychologists say the exposure has opened a curiosity’s box whereby the age of first experience has gone down.
So, how can punishment for two consenting minors who are led by adventure and recklessness be the same as mindless violence and fearlessness? India’s Chief Justice Chandrachud has noted precisely this dichotomy appealing to Parliament to re-look at the age of consent as it poses difficulty, he says in handling cases of sexual activities between consenting adolescents in ‘romantic cases.’
One in four cases filed under the Protection of Children from Sexual Offences (POCSO) Act that regulates age of consent involve consensual relationships with a steep acquittal rate of 93.8 per cent. It could however take years for the case to be disposed by court. Legal reforms though need to not just respect bodily agency and autonomy but also safeguard the young adults. Awareness is key, stakeholders need to internalise that consent can be revoked anytime.
The law needs to safeguard not a traditional notion but reality. It is a double- edged sword, innocent adolescents can get tangled in the legal web while on the other hand genuine cases that need justice could suffer.
Consent is not a dry word; and while no means a stark no, its nuances can be challenging as in a sensational 2018 rape trial in Australia when the headlines screamed, ‘I am that girl.’ Five years earlier Saxon Mullins, 18, was raped in an alleyway just behind the pub where she was partying. The perpetrator was the son of the owner of the pub. Physically pinned down the victim said she was too scared to move which was questioned as consent and the judge went further examining whether consent was at all in the victim’s mind. Mullins gave up her anonymity to come out into the open saying she did not consent, but questions rose on whether she knew she was not consenting. There was no closure after a five-year long criminal legal battle. A jury and a series of judges agreed that Saxon did not consent to sex, but the legal sticking point has always been whether the man, Lazarus knew she was not consenting.
Finding the right balance is a global conundrum. In the UK there are demands to increase the age from 16 — which is the age in many other countries worldwide — after allegations against comedian Russel Brand include him being sexually involved with a 16- year-old girl when he was 30. Japan raised it from 13 this June while there is no age of consent in several countries.
Consent is a very thin line especially in young adults where curiosity extends to access whether it is digital exposure or porn. Love in the time of social media means that consensual sexual relationships are worn as a badge of honour by not just boys but also girls. The law needs to safeguard not a traditional notion but reality.
It is a double- edged sword, innocent adolescents can get tangled in the legal web while on the other hand genuine cases that need justice could suffer. But worryingly it also allows for an easy out in cases of violence inflicted by those under 18. Amendments are needed to differentiate between a criminal activity and consensual relationship while protecting the parties from sexual exploitation. As it stands, even doctors are wary of treating minors who have had a sexual relationship, putting them at risk.
Intimacy is almost a taboo in the country, but a younger generation is pushing the boundaries. Will the lawmakers address the elephant in the room? For a young adult, is it a criminal offence to have a consensual relationship? In the question lies the answer.
