Criminalising Consent: The Pitfalls of the POCSO Act 

India’s national legislation on child sexual abuse, the Protection of Children from Sexual Offences Act, more commonly referred to as POCSO, was enacted in 2012 with the objective of protecting young children from varying degrees of sexual assault. The statute was a culmination of relevant provisions regarding child sexual abuse in the Indian Penal Code, Goa’s Children’s Act, 2003 and Rules, 2004. The Act defines and formulates punishments for aggravated penetrative sexual assault, penetrative sexual assault, sexual assault, aggravated sexual assault and sexual harassment of children under the age of 18. 

Notably, the statute is gender neutral (implying children of any gender may be identified as victims, and persons of any gender may be perpetrators), unlike India’s legislation on rape under Section 375 of the IPC. Gender neutrality in the Act, in conjunction with other progressive clauses of no time limit on reporting abuse and criminalising non reporting, has placed India on a list of countries with progressive and child-friendly sexual abuse prevention policies for children. India ranked 16th among 60 countries globally on the Out of the Shadows Index 2021, which evaluates countries on their prevention and response mechanisms to child sexual exploitation and abuse. 

Despite this, India’s POCSO Act treads a dichotomous line between being comprehensive and progressive, while also retaining vestiges of colonial era conservatism. The Policy suffers from a critical shortcoming: criminalisation of romantic relationships between consenting adolescents.

The POCSO Act imposes an indiscriminate blanket ban on all sexual activity with any person under the age of 18, without considerations of consent. The Act makes no distinction between cases of sexual grooming or assault and consensual sexual activity.  

In the treatment of consensual adolescent relationships as illegal, the state criminalises a significant proportion of sexual encounters occurring in the country. According to data from NFHS-4, a staggering 57% women reported their age of first sexual encounter to be between 15-19 years. In a study conducted by MediAngels survey amongst Indian urban school adolescents, it was found that the average age of first sexual contact is 13.72 years among boys and 14.09 years in girls. The average age of intitiation of sexual intercourse is 14 in males and 16 in females. 30% boys and 17.2% girls engage in sexual contact (Iyer 2015).

The consequence of the Act, inevitably, is the penalisation of adolescent relationships. In a study published in 2020, it was found that 32.58% of victims of alleged sexual assault under POCSO, reported having had voluntary and consensual sexual intercourse. In another study by NLSIU Bangalore, in Karnataka, six of the 110 (5.45%) cases registered under POCSO, in Delhi, 144 of 667 (21.58%), in Assam, 27 out of 172 cases (15.69%) were identified as ‘romantic’ cases. The percentages in Maharashtra and Andhra Pradesh were found to be 20.52% and 21.21% respectively.

In criminalising all consensual sexual activity below the age of 18, the state imposes a form of morality over children and prevents them from exercising sexual agency. The Child Rights Convention extends the Right to Privacy to children, which includes the right to sexual  autonomy and dignity. In the case of the State vs. Suman Das, the Supreme Court in India has itself remarked that penalising someone for engaging in a consensual sexual relationship “would mean that the human body of every individual under 18 years of age is the property of the State and no individual below 18 years of age can be allowed to have the pleasures associated with one’s body.”

Adolescents are sexually curious and engage in sexually experimental behaviour. POCSO, effectively, criminalises this natural human instinct, curbs a healthy expression of sexuality and lends institutional validation to the Victorian objection to premarital sex. The existence of the legal loophole further intensifies, facilitates and sustains the social stigma associated with adolescent sexual activity and is frequently weaponised against consensual relationships. 

The POCSO Act is gender neutral, which implies that both the minors who engage in a sexual relationship “stand both as victims and perpetrators vis-à-vis each other.” The ground reality, however, remains that boys are more commonly treated as perpetrators than girls, who are more often conceived to be the victims. In treating the girl as a victim in a situation where she has engaged in a voluntary, consensual relationship, the state takes on a paternalistic role, limiting the sexual autonomy of young women. 

The Act is also often weaponised by a girl’s family to perpetrate notions of “shame” and “honour,” and maintain control over her relationships and sexuality. A 2022 study by Enfold Proactive Health Trust found that 64.9% POCSO cases registered involved the girl leaving her home to  be with her partner for reasons ranging from parental disapproval of the relationship to violence. In these circumstances, POCSO becomes a tool to enable patriarchal structures and enable parental control over young women. 

The registering of consensual relationships under POCSO exacerbates and is exacerbated by the judicial issues already plaguing the country. Romantic POCSO case add to the already mounting judicial burden in India’s courts, often to result in long and unnecessary proceedings that ultimately lead to acquittals. In 94.2% of ‘romantic’ POCSO cases registered between 2016-2020, the court acquitted the accused. 

Criminalising consensual relationships also implies that the accused is often a juvenile himself. The judicial issue of pendency has an aggravated impact on a juvenile accused.  An increased time between hearings of cases, and therefore, an increase in time in disposal of cases, leads to young boys of school going age exhausting time and resources on trials and hearings. Hearings require physical presence in courts. Travelling to courts periodically adds to transportation costs, and in several cases might also lead to opportunity costs in case of young daily wage earners. This also has an impact on the learning, development and social, personal and psychological growth of the youngster. In a research study conducted, it was found that students arrested during the 9th or 10th grade were six to eight times more likely to drop out of high school than their peers who had not been arrested (Hirschfield 2009).

It is necessary for India’s policy on child sexual assault to address the nuances associated with the issue. While the criminalisation of romantic relationships is undesirable, adequate caution must be exercised to guard against grooming. India may take cues from countries that have set the precedent in this regard. The consent laws in the US are widely referred to as “Romeo and Juliet” laws. In Florida, the age of consent is fixed as 18 and an age gap of up to 4 years is legally permissible. In Canada, if both children engaging in a sexual relationship are between 12-15, it does not constitute an offence under the law. When one party is above the age of 12, a gap of 2 years is permissible. In South Africa, consensual sex in the age group 12-16 is legally permissible. 

Policymakers must accord due respect to adolescents’ rights of sexual agency and autonomy. Recently, a single judge Bench of the Allahabad High Court also noted that the POCSO Act was never intended to criminalise consensual romantic relationships between adolescents. The legislature must take into cognizance judicial pronouncements of these principles and amend the law to reflect contemporary social realities.

About Kashish Komal

Kashish is an ESG Consultant, holding a Master's in Public Policy from NLSIU, Bangalore and a Bachelor's in History from St. Stephen's College. She is passionate about social justice and gender and uses writing as a tool for engaging with the same. Her hobbies are reading and watching contemporary cinema.

Kashish Komal

Kashish is an ESG Consultant, holding a Master's in Public Policy from NLSIU, Bangalore and a Bachelor's in History from St. Stephen's College. She is passionate about social justice and gender and uses writing as a tool for engaging with the same. Her hobbies are reading and watching contemporary cinema.

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