Child, law, and Consensual Sex

Context: 

In the recent past, a trend of quashing of consensual sex cases by the judiciary has been observed, which is providing a spark in air to reduce the age of consent.

Background: 

• On July 12, the Delhi High Court released a 25-year-old accused on bail on the ground that the 15-year-old girl had eloped with him of her own choice.
• On July 10, the Bombay High Court quashed the conviction of a 25-year-old man under POCSO on the grounds that he had consensual sex with the 17-year-old girl. 
• On July 7, the Madras High Court quashed an FIR registered under POCSO and consequential criminal proceedings. 
• On June 27, the Madhya Pradesh High Court quashed an FIR registered under POCSO and all criminal proceedings on the basis that the sexual relationship was consensual. 

About Protection of Children from Sexual Offences Act (POCSO Act), 2012:

• It is the first comprehensive law in the country dealing specifically with sexual abuse of children.
• It was intended to protect children from sexual assault, sexual harassment and pornographic violations, as well as to establish Special Courts for such trials.
• It was enacted in 2012 and is administered by the Ministry of Women and Child Development.
• In 2019, the Act was amended to strengthen the penalties for specified offenses.

Who has the power to make laws?

• The power to make rules lies with the central government. 
• Designated Authority: To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority. 

Salient Features of the Act:

• Definition of Children: According to the Act, children are the individuals who aged below 18 years. 
  • The purpose of defining ‘child’ under POCSO, and of the provision under Section 375 of the IPC, is to safeguard children against penetrative sexual assault irrespective of their consent. 
• Section 90 of the IPC: It provides that consent is not consent, if it is given by a person who is under 12 years.
• Gender neutral: The Act is gender-neutral.
• Time Frame: 
  • For Reporting: A victim may report an offense at any time, even years after the abuse has occurred.
  • For Disposal: Any case under POCSO is mandated to be disposed of within one year from the date of reporting of the offense.
• Child-Friendly Mechanism: 
  • Police-person, a Child Protector: The Act assigns a police-person in the role of child protector during the investigation process. The investigation and trial are to be done in a way to minimize further trauma on the child.
  • Special Courts for Trials: The Act provides for the establishment of Special Courts for the trial of such offenses and matters related to it.
  • Safeguarding Children’s Interests: The Ac also safeguards the interests of children at every stage of the judicial process through child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial through special courts.
• Mandatory Reporting: The Act calls for mandatory reporting of sexual offenses. 
• About Cases of False Complaints: Section 22 of the POCSO Act provides for the punishment to the persons who file a false complaint in order to humiliate, extort, threaten or defame another person. 

Drawbacks of the POCSO Act:

• High Pendency of Cases: Although, the POCSO Act specifies that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offense but the number of pending cases is rising which is creating a huge problem in making the justice mechanism effective. 
• Lacking all aspects of Sexual Violence: The Act does not cover all the aspects of sexual violence of children. For instance, the Act is silent on cyberbullying and other online sexual crimes of children. The Act is also silent on cases where one child made sexual violence against another child/children.
• Lacking Familiarity resulting in Faulty Investigation: The investigation machinery in the child sexual abuse cases is not well familiar with the procedure which leads to a faulty investigation. 
• Disrespecting Consent of Minor: In case of sexual intercourse with consent, one of which is minor, the partner who is not minor can be prosecuted under the POCSO Act as the consent of a minor is not considered relevant under this Act. 
• Exemption of Punishment for Children accused in False Complaints: The provision of the punishment to the persons who file a false complaint is not applicable to a child, which sometimes results in misuse of provision of the act. 
• Reluctant Judgment of Judiciary in Consensual Sex Cases: By experiencing various examples, it is becoming evident that the courts are reluctant to convict accused persons in consensual sex cases with the harsh minimum imprisonment, it is proving to be benefiting the accused rather than deterring.

Way Forward:

• Sex Education: It is needed to bridge knowledge gaps, build positive skills and attitudes so as to enable adolescents to make informed decisions and also realizing the importance of their health and dignity.
• Awareness of the Provisions: Adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
• Modification in the Provision of Age of Consent: 
  • The Bureau of Police Research and Development could analyze the cases of consensual sex, age-wise, across States and help the Central government in taking a decision of reducing the age of consent based on that study. 
  • Also, the reduction of the age of consent with some leverage is allowed to the judiciary to interpret consent in cases of the victim being of lower age based on the child’s understanding of consequences. 
  • While in both the above scenarios, ‘best interest of the child’ would be on the top priority.
• Reduction in Pendency of Cases: There is an urgent need to resolve such cases on a priority basis to reduce pendency and provide an actual justice to the victims.
• Relook and Revisit the Act for better Modifications: The Government should examine the provisions of the POCSO Act which are being misused and amend them. The principles of Right to life and survival and the best interests of all children concerned, should be protected.
• An analogy can be drawn with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: 
  • As per this act, if certain prohibited acts are committed with the knowledge of the caste of the victim, intention does not have to be proved separately.
  • Similarly, if children are to be treated as a separate and vulnerable category, consent should be of no avail if the accused had knowledge of the victim being a child.

News Source: The Hindu