Guest Post: Choice, Volition, Participation, Consent — Appraisal of a Minor's Consent in Child Sexual Abuse Cases

(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.]

Guest Post: On POCSO and Reducing the Age of Consent for Consensual Adolescent Relationships

(This is a guest post by Ishita Soni)

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) criminalises various forms of sexual offences against a ‘child’ who is defined as a ‘person below the age of eighteen years’, regardless of consent. In other words, 18 years is deemed as the ‘age of consent’ for sexual activities, and intercourse with any person below this age attracts criminal liability. As a result, the High Courts of Punjab and Haryana and Bombay have held that the consent of a ‘minor’ has no value in the eyes of law for the purposes of ascertaining an accused’s culpability under POCSO.

Notably, though the POCSO Act is gender-neutral, in 2020, more than 99% of the total cases involved female victims and out of these 50.2% of females were aged between 16 to 18 years. Whilst these numbers do not indicate the percentage of non-consensual sexual abuses that transpired (factually, since legally all of these are non-consensual), data suggests that 46.6% of cases pertained to "friends/online friends or live-in partners", thereby suggesting a likelihood of the existence of consent. 

In this way, the POCSO Act engenders a legal anomaly wherein adult female adolescents of 16 years or above are deemed wholly and absolutely incapable of furnishing consent, even though they may possess the mental competence and intelligence to grasp the consequences of their sexual acts. Concomitantly, the male sexual partners of such females are ipso facto privy to the rigours of the Act, irrespective of their age, as the statute does not encompass any exception for consensual or teenage relationships. This gives rise to a practical absurdity which was craftily illustrated by the Calcutta High Court as under – 

“even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old.” 

The non-recognition of consent tendered by such non-18-year-old-adolescents has invited disapproval from courts that have acknowledged this as a ‘legal grey area’. In this post, I underline the transitioning judicial thought and prevailing foreign jurisprudence to posit that the overarching, rigid Act should be amended to lower the age of consent from 18 years to 16 years. If implemented, this redefinition would permit a case-by-case analysis of adult-adolescent relationships wherein bodily autonomy could be exercised whilst being safeguarded under POCSO’s shield. 

Indian Judiciary’s Resurgence towards a lower Age of Consent

Before the POCSO Act, the Indian Penal Code, 1860 established the legal age of consent for sexual acts as 16 years for unmarried females and 15 years for married females. This changed with the advent of POCSO that raised the age to 18 years, threatening imposition of harsh punishments for partaking in adolescent sexual experimentation – something that represents perfectly normal behaviour. Resultantly, the past decade has witnessed a paradigm shift in the judicial outlook as courts have recurrently lent their support for a reduced age of consent. The avalanche of reasons cited by the courts in favour thereof can be categorised as follows: 

A. Adolescents engaged in romantic relationships consciously consent to sexual acts

The blanket protection tendered to every person under the POCSO Act has multiplied the number of elopement cases that are pursued by the family members of the females who volitionally elope with their male counterparts. The voluntary nature of such elopement is conveniently neglected by the kith and kin of such females whose primary aim is to regain the custody of their adolescent girl by any means necessary. 

In fact, in Sabari v. Inspector of Police (Madras High Court, 2019) [“Sabari”], the court declared that a majority of the POCSO cases involve minors between the age group of 16 to 18 years who are mired in ‘love affairs’. This observation came with a caveat that adolescent relationships could emanate from "mutual innocence and biological attraction" and thus cannot be construed as "an unnatural one or alien to a relationship of opposite sexes." It was recommended that the definition of ‘child’ be modified to solely include persons below the age of 16 years instead of 18 years. Underlying these observations was the belief that minor girls (and boys) were quite capable of meaningfully consenting to sexual relationships. 

Sabari was cited in Vijayalakshmi v. State (Madras High Court, 2021) [“Vijayalakshmi”] to take a lenient view of an accused who was in a serious affectionate relationship with a teenager. It was held that the Act did not aim to regulate cases involving adolescents / young adults who indulged in romantic relationships. Towards this end, courts have often placed emphasis on the ‘practical aspects’ and ‘ground realities’ to appreciate how environmental factors like social media, movies, web series, peers, familial upbringing, inter alia, play a profound role in augmenting an inquisitive adolescent’s fondness towards members of the opposite sex. 

Hence, Indian courts have tried to limit the periphery of the POCSO Act to keep consensual romantic-turned-sexual relationships out of its ambit, recognising mental and emotional maturity in female adolescents that enables them to furnish valid consent for sexual acts. 

B. Consent of adolescents is considered for bail and quashing of cases

Indian courts have time and again considered elements other than the female’s age in trials under the POCSO Act. For instance, in Sau Anjali v. State of Maharashtra (Bombay High Court, 2018) and Praduman v. State (Delhi High Court, 2021), the courts factored in the relevance of the minor’s consent and her age difference with the accused to enlarge the latter on bail. 

This trend was followed in Ephina Khonglah v. State of Meghalaya (Meghalaya High Court, 2021) where the court accepted the existence of a romantic relationship between two teenagers which had culminated into a ‘consensual’ sexual act. The court recognised that albeit consent had no legal validity, it was nevertheless relevant for adjudicating a bail application. In doing so, however, the order creates legal fissures wherein consent of the minor female carries no legal significance for determination of guilt but is nevertheless relevant for the grant of bail.

Let alone bail, courts have also quashed several cases where adolescents participated in consensual non-exploitative relationships. In Teiborlang Kurkalang v. State of Meghalaya (Meghalaya High Court, 2022) and Skhemborlang Suting v. State of Meghalaya (Meghalaya High Court, 2022), the females who were 17.5 years old voluntarily married accused persons and bore a child out of their wedlock. The courts opined that the parties were ‘in love’ and their sexual relationship did not entail physical coercion, harm or assault to quash proceedings. This approach was adopted by the High Courts of Delhi, Calcutta, and Madras when females above 16 years of age were caught up in similar circumstances. 

This widening interpretative gap between the strict implementation of the Act and its benevolent-cum-purposive application must be bridged by introducing specific parameters in the legislation that permits the consideration of adult-adolescents’ consent. 

C. Non-consideration of the accused person’s age results in unfair discrimination 

The blanket protection given to minors (primarily, female children) goes hand in hand with the blanket punishment provided to all accused persons irrespective of age. Section 19 of the Act mandates every person to report violations of the POCSO based on any ‘apprehension’ or ‘knowledge’. Therefore, males engaging in sexual intercourse with adult-adolescents are at a greater risk of facing the harsh punishment of minimum 10 years imprisonment. This stringent punishment is applicable notwithstanding the male person’s age, comparative age gap, or relationship with the female. This creates disparate standards for the accused persons who are of the same age as that of the females and thus less capable of exerting any form of influence, power, position or authority for sexual mistreatment or grooming. 

Admittedly, a sizeable age difference need not always reflect the true nature of the relationship between parties to warrant punishment; however, it can still be a relevant indicator of the probable power-dynamic and equation that existed at the time of the purported sexual abuse. In this regard, the Delhi High Court has held that the age difference between the female and the accused is directly proportional to the perversity of the offence. Yet, this finds no mention in the Act as a yardstick for ascribing blame. 

Further, in Sabari, the court opined that in an innocent relationship between a "boy and a girl of 16 or 17 years, who is either in school final or entering college, […] the boy is subjected to the rigours of POCSO Act." The court highlighted that gravity of rigorous imprisonment under the Act is incomprehensible by young teenagers who wilfully participate in consensual sexual activities. Thus, the nature of proscribed sexual conduct must merit the severity of the punitive sentences envisaged under the Act.

This view was buttressed in Vijayalakshmi where the court observed that imposition of such punishments on youth could cause "irreparable damage to their [sic] reputation and livelihood" on account of their otherwise innocuous actions. Even in Jayaprakash v. Inspector (2022), the Madras High Court held that the stringent nature of the Act brings the youthful life of an adolescent boy to a grinding halt, which was never the intent of the statute.

As mentioned above, since more than 99% of POCSO cases in 2020 involved female victims, presumably, majority of the accused persons were male. Such funnelled application of the Act’s severe provisions against male persons is inequitable, prejudicial and detrimental towards their natural justice rights. The POCSO Act warrants legislative sanitization for its fair and just application vis-à-vis the males who do not deserve to get automatically embroiled amid the contours of the Act, despite the existence of their female partner’s consent. 

Comparative Analysis with International Standards

In the United States of America, individual state laws govern sexual offences against minors. A fine comb reading of the state-wise statutes demonstrates that none of them extends blanket protection to minors under the age of 18 years. Albeit statutes use distinct terminologies to criminalise the act of sexual intercourse with minors—such as ‘sexual assault’, ‘gross sexual imposition’, ‘rape’, ‘sexual battery’, and ‘criminal sexual abuse’—a lower age of discretion is prescribed to legally admit adolescents’ consent for sexual intercourse. These states can be classified into 6 categories: 

1. States that criminalise intercourse with minors below 16 years of age – Alabama, Georgia, Idaho, Massachusetts, Oklahoma
2. States that criminalise intercourse with minors below 15 years of age – Arizona, Louisiana, North Dakota
3. States that criminalise intercourse with minors below 14 years of age – Hawaii, Iowa, Kansas, Maine, Nevada
4. States that criminalise intercourse with minors below 13 years of age – New Hampshire, Pennsylvania, South Dakota, Virginia, Wyoming
5. States that criminalise intercourse with minors below 12 years of age – Delaware, Florida, Oregon
6. State that criminalises intercourse with minors below 11 years of age – South Carolina

A common thread running through the majority of these laws is that in addition to consent of the minor, they infuse ‘Romeo-Juliet’ provisions or ‘close-in-age’ exemptions that reduce or eliminate the penalty for consensual acts when the age difference between the adolescents is negligible. For instance, in Idaho, statutory ‘rape’ in respect of minors is criminalised under Section 18-6101 when the ‘victim is sixteen (16) or seventeen (17) years of age, the perpetrator is three (3) years or more older than the victim’. Likewise, in Colorado, ‘sexual assault on child’ is penalised under Section 18-3-405 when the ‘victim is less than fifteen years of age and the actor is at least four years older than the victim.’ Cognate provisions have been embedded in the laws of Alaska, Illinois, Hawaii, Minnesota, Montana, and Texas, which recognize an age-gap of 3 to 5 years between adolescents to exonerate the accused. Such age-gap provisions permit two adolescents – for example, of 17 years each – to discover their sexual proclivities willfully and freely, so long as it is consensual. 

The support for a lower age of consent is also countenanced by Section 150 of the Canadian Criminal Code, 1985 and Section 66C of the Australian Crimes Act, 1900 which criminalize sexual intercourse with girls under 16 years of age. This age bracket is further decreased to 15 years under the French Criminal Code, 1992 for considering the adolescents’ consent. 

Moreover, Section 176 of the German Criminal Code, 1998, Article 236 of the Chinese Criminal Law, 1979, Section 131of the Russian Criminal Code, 1996, and Section 375 of the Singaporean Penal Code, 1971, stipulate 14 years as the age of consent for penalizing sexual assault of females below this age limit. 

A parallel can also be drawn with the Gillick test prevalent in the United Kingdom to seek minors’ consent for performing medical procedures on their bodies. Per this, minors under the age of 16 years are deemed capable of giving informed consent when they have sufficient maturity, understanding, and intelligence to make authoritative decisions about their body and health. This is akin to Section 164A of the Indian Code of Criminal Procedure, 1973 which mandates medical practitioners to seek the rape victim’s consent before their examination. Alternatively, even from a legislative lens, UK’s Sexual Offences Act, 2003 recognizes 13 years as the age of consent under Section 5. 

Lastly, the Constitutional Court of South Africa, in the Teddy Bear Clinic case (2013), struck down provisions that criminalized consensual sexual conduct between adolescents who are aged between 12 and 16 years. The concerned legislation was deemed to be unconstitutional by virtue of violating the children’s rights to dignity and privacy. Pursuant to this, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 was amended to decriminalize adolescent sex and inject age-gap exceptions under Section 15. 

Clearly, unlike extant statutory rape laws of most developed nations, the POCSO Act fails to contemplate a situation where adolescents have the requisite psychological ability to take decisions endemic to their physical and biological well-being. When compared to foreign legislation, the Act espouses a regressive and disproportionate approach that cripples a mature individual’s agency over its bodily freedom. 

Conclusion

In a recent census conducted by the Indian Health Ministry, over 44% of total districts reported high female adolescent marriages and over 118 districts reported a high percentage of teenage pregnancies. Considering the burgeoning rate of teenage fertility, the Indian legislature must accept the contemporary reality of widespread youth sex. The protectionary objective of the POCSO Act should not propel overcriminalization by following an absolutist approach that completely ignores the sexual inclinations and decision-making power of female adolescents. This objective of furthering female (sexual) autonomy also mirrors the ideals of the recent Prohibition of Child Marriage Bill, 2021 that aims to expand female (reproductive) autonomy by raising the legal age of marriage for females from 18 years to 21 years. Contrary to the first glance opinion, this Bill does not propound that 18 to 21 year old women are incapable of consenting for marriage; instead, it aims to curb child marriages, raise the average age of motherhood, and reduce Maternal Mortality Rate, inter alia – none of which is indicative of adolescents’ inability to consent for sex. 

Given that a lower age of consent permeates through the sexual offence laws of other common law countries and its socio-contextual importance has been repeatedly reiterated by India’s judiciary, the POCSO Act should be amended to authorize females who are aged 16 years or above to explore their sexual dispositions, without having to expose their partners to sweeping penal punishments. The legislative logjam must be broken to ensure that the Act does not indiscriminately stifle and penalise genuine romantic relationships that ensue between consenting teenagers with the capacity to reason.