Shraddha Chaudhary
Overinclusive Criminalisation
The Protection of Children from Sexual Offences Act, 2012 (POCSO) defines all persons under the age of 18 as ‘children’. By making children’s consent irrelevant to the definition of its offences, the statute creates the legal fiction that all sexual contact with a child, so defined, is non-consensual. Green argues that statutory rape offences (which criminalise sexual contact based on age alone, regardless of consent, like POCSO) are instances of overinclusive criminalisation. In trying to criminalise certain forms of wrongful conduct (coercive or exploitative sexual contact), they bring into the fold of criminal law, and thereby expose to criminal sanction, conduct that is not inherently wrongful (de-facto consensual sexual contact with a minor). The idea that criminalisation by POCSO is overinclusive appears to align with common intuition amongst the judiciary, as well as some child rights activists. For instance, the report of HAQ Centre for Child Rights on the Implementation of the POCSO Act in Delhi and Mumbai notes,
… a large amount of court time is being spent on cases involving a romantic relationship–especially since 107 the age of sexual consent went up from 16 years to 18 years–resulting in the child turning hostile and/ or the prosecution being otherwise unable to prove the offence of ‘penetrative sexual assault’ or ‘sexual assault’
Similarly, the Recommendations for the Protection of Adolescents in the National Child Protection Policy, 2018 by Partners for Law in Development to the Ministry for Women and Child Development (MWCD) specifically advises the Ministry to lower the age of consent to 16 “for non-exploitative, non-coercive, consensual sex between peers/persons of proximate ages.”
The high percentage of acquittals (CCL-NLSIU, p. 133) in cases where the minor prosecutrix and the accused are alleged to be in a ‘romantic’ relationship with each other (or, de-facto consensual relationships) also points, among other things, to the judicial intuition that such cases do not deserve the heavy hand of criminal law. This intuition was made express in a recent judgement of the Madras High Court, in which the single judge stated, “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.”
If we accept that the blanket criminalisation of sexual contact with children under POCSO is overinclusive criminalisation, it follows that sexual contact with children deserves, at least to some extent, to be decriminalised. Exactly what form such decriminalisation ought to take is a discussion beyond the scope of this piece. What is possible, and necessary, is a discussion on what considerations should guide us in thinking about decriminalising sexual contact with children. In this blog, therefore, I attempt to lay out what I regard the most important of these considerations.Before I proceed, it is worth highlighting that the majority of cases considered by Special Courts under POCSO are, in fact, cases of coercive sexual impositions and not de-facto consensual cases. The decriminalisation under discussion would (and should), therefore, address a minority (though not insignificant) of these cases. The studies by the Centre for Child and the Law, National Law School of India University, Bangalore (CCL-NLSIU) found that the percentage of de-facto consensual cases under POCSO were between 15 and 22% for all five states (p. 133). This was also seen in the study by HAQ Centre for Child Rights (p. 61), which found that these cases were approximately 26-27% of the cases selected by them.
(I) Why Decriminalise?
It is by no means clear that POCSO was not intended to cover adolescent sexual relationships. As I have argued elsewhere, “[T]he Parliamentary Committee (Rajya Sabha) [para 6.8] which considered the POCSO Bill, 2011 had, in fact, criticised the clause providing for the possibility of consent in cases of sexual intercourse with minors between the ages of 16 and 18.” Furthermore, since the suggestion to make an exception for sexual contact between two minors was explicitly rejected on the ground that children needed protection from sexual abuse by other children [para 5.1-5.4], it would seem that POCSO was meant to apply to adolescent sexual relationships as well.
This does not mean, however, that the blanket criminalisation approach of POCSO is rational or justified- it isn’t. First, children’s vulnerability to sexual abuse does not justify making their consent irrelevant, for it adds insult to injury for those children who can meaningfully consent to varying degrees. Adult women too are vulnerable to sexual abuse in various forms (as are some adult men, sexual minorities, and gender non-conforming persons), but they are not thereby precluded from consenting to wanted sexual contact. Second, such an approach treats cases where children are coerced, forced, subjected to violence, or exploited, as morally the same as cases where children did, in fact, consent. This gives rise to issues of fair labelling and just punishment (Green, p. 426-427), since forms of conduct that are not equally wrong or harmful are clubbed together, morally condemned and criminally punished to the same degree. And third, the rationale given by the Parliamentary Committee and the MWCD approaches the issue backwards. Instead of addressing the systemic flaws with consent assessment for sexual offences in the criminal justice system, it seeks to shield children specifically from its pernicious effects by denying their very capacity to consent [para 6.9]. In any case, as the studies of CCL-NLSIU on the functioning of Special Courts under POCSO Act indicate, making children’s consent relevant has not, in fact, protected them from unseemly consent assessment (p. 135-137).
Perhaps the idea behind this blanket criminalisation was to convey a policy of encouraging abstinence for all children. Such a policy, however, would be impractical and excessive. Older children can and do have sexual contact with their peers, as well as with adults, and these experiences can be autonomy-affirming and positive. In other words, it is not necessary that every sexual interaction that a child has is wrongful, traumatising, or harmful, and so there is no good reason to prohibit all such interactions. Even if the policy had merit, criminal law would be ill-suited to achieving it, since it serves to punish, rather than educate and its ‘deterrence effect’, being contingent on a wide-range of factors, is unreliable at best and counterproductive at worst. For instance, because of its mandatory reporting clause, POCSO’s criminalisation blocks children’s access to contraception, healthcare, and counselling, and makes children’s sexual relationships illicit, thereby actually causing them harm.
(II) Sexual Autonomy
The second point to consider is, when speaking of decriminalisation of sexual interactions with children, whose sexual autonomy do we seek to recognise/protect? While the Supreme Court of India has affirmed the right to sexual autonomy as part of the right to life (Article 21, Constitution of India), it has also (Navtej Johar, Joseph Shine) restricted it to consenting adults. Does this mean that insofar as the law is concerned, children do not have a right to sexual autonomy?
The answer to this depends on whether one believes that rights come into existence upon their articulation by a legal authority, or whether their existence is merely recognised within the law by such articulation. Given the scope of this piece, I shall not attempt to defend either position. I argue, instead, that Indian children’s right to sexual autonomy derives from the United Nations Convention on the Rights of the Child (UNCRC) which has been signed and ratified by India. Articles 5 and 12, UNCRC recognise the need to involve the child in decisions concerning them based on their evolving capacities, which, it has rightly been argued, when it comes to adolescents, especially (UN Committee on the Rights of the Child, General Comment No. 4, p. 3), extends to their evolving sexual capacities (Lansdown, p. 32). This means that the sexual autonomy of children, especially older children, should be recognised and upheld according to their physical, sexual, mental, and emotional maturity.
However, sexual autonomy is not an unfettered right. Even adults, whose right to sexual autonomy is constitutionally recognised, are subject in its exercise, to the constraints of other people’s rights (to bodily integrity, privacy, autonomy, and dignity). Moreover, since older children continue to have childhood-related vulnerability to sexual abuse, notwithstanding their evolving sexual capacities, any discussion of decriminalising sexual contact with children must always seek to balance children’s exercise of their evolving sexual capacities with their continuing need for protection. This, in turn, requires us to factor in a couple of key considerations.
A. Pre-Pubescent Children
The first of these is the age of the child in question. When it comes to younger (pre-pubescent) children, their lack of understanding about sex and their consequent inability to meaningfully consent may seem an obvious reason to prohibit sexual contact with them. However, it has been argued that there are no good reasons for prohibiting such contact. Proceeding perhaps from the assumption that as a general rule the sexual autonomy of adults should not be restricted, Kershnar argues that sexual contact between adults and pre-pubescent children is not necessarily wrong where both parties are ‘willing’ (a token of agreement or lack of protest), because it is unclear that it is harmful per se (when removed from the harm caused by the stigma attached to such conduct), or that it is unfair to the child (in that the child may potentially feel sensual pleasure or ‘gain’ more out of the exchange). He also argues that the child’s inability to consent does not, by itself, make the conduct wrong, because adults make children do a number of things to which they do not (or even cannot) consent, such as going to school, or taking vaccinations. Such a conclusion must be guarded against by centralising the child’s well-being, rather than the adult’s sexual autonomy. Primoratz, for instance, argues, and I think rightly so, that even if the harmfulness of the sexual interaction with adults is considered moot, there are good reasons to prohibit sexual interactions between pre-pubescent children and adults. These stem from a child’s inherent lack of understanding about sex, combined with the asymmetry between adults and children and the fact that the sexual interaction is not meant to benefit the child (unlike schooling or vaccinations), even if it is not meant to harm them. I would add to this that such conduct is, by virtue of the child’s incapacity to consent, wrongful, because it reduces the child to an object of sexual pleasure (Gardner and Schute).
B. Older Children or Adolescents
The second concern is the age of the person who seeks to have a sexual interaction with a child. Even assuming the child in question is an older child or an adolescent, the normative status of sexual interactions between two adolescents is likely to be different from sexual interactions between a minor and an adult. This is because, generally speaking, adults enjoy a position of dominance over children. This may be because of a specific position of authority, such as a parent/guardian, teacher, or other institutional authority figure. But even otherwise, adults are in a position to meet the material (such as food, shelter and other things that require financial independence) and non-material (such as approval, popularity, love, care) needs or desires of children (Finkelhorn, 695-696). There is also significant asymmetry in the normative position of adults vis-à-vis children, due to differences in physical and psychological maturity (Primoratz, 107), but also the hierarchical social construction of childhood and adulthood, where children are raised to be dependent on adults (Jackson).
As concerns sexual relationships between two minors as well, the possibility of abuse within a sexual relationship cannot be ruled out. Its nature, however, is not likely to be significantly different from the abuse that adults might face within their relationships, and therefore does not call for special consideration in the way that sexual interactions between an adult and a child would.In light of this, any discussion on decriminalising sexual interactions with children must consider these differences, as well as any additional safeguards or paternalism that would be justified by these differences when it comes to sexual interactions between adults and children. When considering cases that are heard by Special Courts under POCSO, for instance, it is worth remembering that accused persons are always adults. Given the asymmetry between children and adults discussed above, it is possible to argue that the accused person in these cases should be held to a higher standard of responsibility in their sexual interactions with children, because (i) they are likely to have a better understanding of what sex is and what its consequences are, and (ii) adulthood as a normative status gives them a position of power over children. While it is not necessary that all sexual relationships between adults and children reflect this asymmetry, it is a structural condition that cannot and should not be ignored when assessing how to deal with sexual interactions between adults and children.
(III) The Extent of Paternalism
The third and final point of consideration in the discussion on decriminalising sexual interactions with children, in my opinion, stems from the argument made above, that the asymmetry between adults and children might call for a paternalistic approach to sexual interactions between adults and children, even if absolute prohibition (as under POCSO) is unjustified. While this is true, it is worth considering how far the paternalism should extend. Should we, for instance, limit children’s sexual interactions with adults to monogamous, loving relationships? Should we allow sexual interactions only when they are likely to result in a legally protected relationship, such as marriage? Should we prescribe the age-gap between the child and the adult?
It isn’t possible to engage fully with these questions here, but it is important to say that in considering these questions, while the idea should be protect children from potentially harmful, coerced, or unwanted sexual interactions, an attempt to restrict them to specific forms of relationships based on our moral judgements would undermine their sexual autonomy. This, then, would be an overly paternalistic approach that is best avoided.
The Way Forward
Decriminalising consensual, non-exploitative sexual contact with minors can take a number of approaches: close-in-age exemptions for decriminalising sexual contact between post-pubescent minors or adolescents, allowing adolescents above a certain age to have sexual contact with adults, while setting up special safeguards in these cases against grooming and exploitation, or making adults responsible for ascertaining the age of the child, or various combinations thereof. It is not so much the specific mechanism that is deployed that will determine how children’s sexuality is treated by the criminal justice system, as whether any decision to decriminalise children’s sexuality gives adequate attention to the issues raised above. Moreover, we may look to other legal systems, such as Canada or Sweden, for guidance, but it would be essential to keep the Indian social context firmly in view so that we do not lose sight of social institutions such as the family, caste and other community-based relations which exercise significant control over people’s (especially women’s and girls’) sexual autonomy. In other words, while we may recognise in academia and policy that sex and marriage are different, and the capacities required to choose one are not the same as the other, this distinction is not always given much weight in general society. Therefore, age of consent laws may continue to be defeated by marriage, which would provide social, even if not legal, sanctification (Ghosh and Sen, 2020). Decriminalising sexual contact with minors must also consider the allied responses that would be required from the education and health sectors. Simply giving legal sanction to sexual contact between two minors, or between some minors and adults, would be meaningless without providing robust and age-appropriate sex education to all children so that adolescents who do engage in sexual contact have the tools to make informed choices (or at least the closest approximation). Similarly, it would be essential to ensure that doctors can provide services such as abortions or physical examinations, treatments for infections (among other things), as well as psychological and emotional support and information about contraception and protected, safe sex. With the absolute mandatory reporting clause of POCSO (s. 19) which criminalises non-reporting of any sexual contact that a child has, none of these essential services can be provided.
Conclusion
I have made an attempt here to lay out some considerations which, in my opinion, should guide any discussion on decriminalising sexual interactions with minors, or persons under the age of 18, currently all labelled ‘children’ by the law. I examined why decriminalisation might be justified, why children’s sexual autonomy and capacity ought to be centralised in this discussion rather than adults’, and why our approach to sexual interactions between adults and children, even older children, should differ from our approach in dealing with sexual interactions between two minors. I also argued that while greater paternalism would be justified in our approach to sexual interactions between children and adults, it should not have the effect of undermining the sexual autonomy that we are trying to recognise and protect by decriminalisation in the first place. Finally, I argued that what matters in decriminalising sexual contact with minors is not so much the specific mechanism used by the legal system (though this is not unimportant), but the considerations that underpin it. And my hope is that the talking points underlined in this piece can serve as a meaningful place to start a nuanced discussion on this.
Shraddha is a 2nd Year Ph.D Candidate, Faculty of Law, University of Cambridge and Lecturer, Jindal Global Law School. Her areas of interest are Philosophy of Criminal Law, the Criminal Justice System and its treatment of women and children, Family Law, and Feminism and law. Her faculty profile may be accessed here. Views expressed here are personal.
