(This is a guest post by Siddharth Malik and Navjot Punia)
The Nagpur Bench of the Bombay High Court in Nitin Damodar Dhaberao v. State of Maharashtra [Crl Appln (BA) No. 724 / 2023 decided on 05.01.2024] granted bail to a 26-year-old accused who had been charged, among others, under Sections 4 and 6 of the Protection of Children from Sexual Offences Act 2012 (“POCSO”) and Section 376 of the Indian Penal Code 1860.
The case concerns a 13-year-old girl who had gone away with the 26-year-old accused, who had promised to marry her. She admitted to a love relationship with the accused and did not complain of use of any force or subjection to forceful sexual intercourse by the 26-year-old. Though a chargesheet had been filed in 2020, the trial had still not commenced. Accordingly, the Court released him on bail.
In this piece, while exploring the contours of consent in such cases, we argue that the Court’s reasoning in placing reliance on the voluntary and non-unilateral nature of the act is opposed to the scheme and purpose of POCSO and is deeply problematic, for such an approach places victims of child sexual abuse in an extremely vulnerable position due to the power relations that exist between them and the accused. We argue for a strict adherence to the standard of statutory rape in cases where the victim is not close to the age of consent and the relative age difference between the victim and the accused is so large that the power relations between them completely negatives the minor’s voluntariness or choice of participation in sexual activity.
Though the Court recognised that a minor’s consent has no relevance, it nonetheless proceeds to allude to it by invoking the purported love relationship of the victim with the accused. The brooding theme of the Court’s rationale behind granting bail to the accused remains to be the voluntary participation of the minor child in the alleged sexual act. The Court remarked that the case seems to be in the nature of mutual attraction between the two young persons, and it is not the case that the accused had subjected the victim to sexual assault out of lust. Thereafter, the Court took note of the delay in trial since the filing of chargesheet in 2020 and the fact that the trial will take its own time for final disposal, and proceeded to order release of the accused on bail.
The Court, we argue, erred in getting fixated with the binaries of presence or absence of consent in a case where such a consideration was not at all warranted. Feminist scholars like Julia Simon-Kerr and Catherine MacKinnon have argued that the entire concept of consent in cases involving sexual assault is deeply problematic as it does not take into account the ever enduring hierarchical relations that exist between sexes, and in a way reinforces such historically unequal relations. Arguments on similar lines, on the perception of consent and the innate subjectivity in this concept have been raised in the discourse over the ongoing marital rape challenge.
In light of such progressive developments, it is appalling to find judges taking such a parochial position in matters involving the bodily autonomy of individuals, where they fail to recognise the concept of statutory rape in its true sense. Enshrining the concept of statutory rape in cases of sexual offences involving minors is a move towards recognising the vulnerability and elasticity attached to the concept of consent. The tendency towards misjudgement in engaging in sexual activity renders a minor extremely vulnerable to coercion, abuse and exploitation, and a large difference in the relative age further aggravates the minor’s susceptibility to coercion, fear, confusion and peer pressure when it comes to engaging in a sexual relationship. As Catharine MacKinnon argues, consent does not account for sex that is the coerced result of psychological or social-hierarchical threats. What may appear to be a voluntary, consensual participation in sexual activity may not be so when seen in the context in which the minor’s supposed volition is exercised, thus rendering their choice of engaging in the sexual activity completely nugatory.
But in this case, not only did the Court fail to consider this reality of the supposed voluntariness of participation by the minor, it also failed to apply the judicial standards in deciding such cases. In the cases where a minor’s consent has been accounted for (thereby making the physical act non-unilateral hence not attracting POCSO), it has been done so only because the minor was close to attaining the age of consent. The issue of consent in the cases of minors who are about to turn major has been accepted to be an issue falling in a grey area, and has been accompanied by calls to lower the age for consent to 16, considering the instances where sufficient level of maturity has been gained (discussed here and in Sabari v. The Inspector of Police). The rationale behind allowing the consent of a minor to be given consideration has been elaborately explained in a Calcutta High Court judgment reproduced here:
“In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.”
However, in the present case, the Court alludes to the consent of the 13-year-old child by referring to the purported love relationship between the victim and the 26-year-old accused. The Court based its reasoning on the non-unilateral nature of the alleged physical relationship, completely overlooking the fact that this case could not have fallen in the grey area by virtue of the extremely young age of the victim, coupled with a very high relative age difference between them. As highlighted previously, the volition to participate in the physical act is negatived by this context in which such volition or choice is exercised by the minor. The maturity level of the parties involved – the victim of the age of 13, and the accused, 26 – is highly asymmetric, contributing to a skewed power relation which further warrants strict scrutiny of the minor’s exercise of volition.
Merely because the victim in this case has confessed that they were in a consensual relationship cannot allow the court to disregard the fact that there is a stark difference in the level of maturity (particularly in matters of sexual activity, discussed here) that can be expected from a 13-year-old as against 16-17 years old. It was inappropriate on part of the Court to conclude that the relationship was one that emerged out of love and not out of lust without adequately considering the effect, on the purported love relationship, of the context of their relative age and the asymmetric level of maturity of the two. The Court in the present case has extended the teenage romantic relationship exception to the accused, an individual (in the words of the Court) of the tender age of 26. The exception for relationships emerging out of love has generally been confined to cases where the accused was just above the borderline of 18 years. The Court has, however, unreasonably stretched this argument to include a relationship between 26- and 13-year-olds within it. The “close in age” exemption could not have been applied here. It has been stated in no uncertain terms in Independent Thought v. Union of India, (2017) 10 SCC 800, that-
“[t]here is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this. Therefore, unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant.”
Such an approach in POCSO cases has not been uncommon on part of our Courts (another such instance was the 'skin-to-skin' judgement of Bombay HC) whereby the rigours prescribed by statute are diluted in the courtroom. We therefore question if legislative means that recognise the complexity and layers of consent are in and of themselves sufficient to reform sexual offences adjudication (involving minors, more particularly), where the social and political context so strongly informs the perception and understanding of choice and consent for the functionaries in the adjudicatory process. Katharine K Baker has argued on similar lines to press on the need to reform the underlying social perceptions, and not just the law. She argues that–
“[c]riminally punishing nonconsensual sex has proved difficult [...] precisely because the legal proscription on nonconsensual sex competes with the masculinity norm, biological theory and popular belief, all of which re-enforce and legitimate the notion that men crave sex regardless of consent. Given this tension between the law and other well-established norms, it should come as little surprise that a sizable number of men have yet to internalize the moral wrong of nonconsensual sex. And even those men who have internalized the abstract wrong [...] have difficulty concretely identifying what nonconsensual sex is. This difficulty stems both from well-established sexual behaviour roles that shun explicit communication and from our continuing reluctance to explicitly discuss, both societally and individually, what consent is.”
The present bail order is only one such reflection of an instance where the social beliefs and a subjective understanding of consent overpowered the statutory obligation to strictly comply with the standards of statutory rape. It highlights the possibility of unsettling a victim-centric legislation through the Court’s perusal, albeit indirectly, of considerations that are foreign to the POCSO’s letter and purpose.
[Note: This piece is only intended to explore the Court’s appraisal of a minor’s consent (and effect thereof) in cases involving childhood sexual relations. It does not seek to argue against the grant of bail to the accused on account of delay in the trial of the offence.]
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