Criminalising consensual relationships

Source– The post is based on the article “Criminalising consensual relationships” published in The Hindu on 20th December 2022.

Syllabus: GS2- Vulnerable sections of population

Relevance– Issues related to adolescent population

News– The article explains the issues of consensual relationship between adolescents in context of the POCSO Act.

According to an analysis by Enfold Proactive Health Trust, cases related to consensual relationships constituted 24.3% of the total cases registered and disposed under the POCSO Act between 2016 and 2020. The data is of cases by special courts in Assam, Maharashtra and West Bengal.

What are issues related to criminalization of consensual relationships between adults under POCSO Act?

Its unintended effect has been the criminal prosecution and the deprivation of liberty of young people in consensual relationships. The law is also used by parents of adolescent girls to safeguard family honour.

The prosecution process has an adverse impact on the adolescents’ development, education, employment, self-esteem, social reputation, and family life.

The law casts adolescent girls as victims, thus rendering them voiceless. Adolescent boys are by default treated as children in conflict with the law and can even be tried as adults.

Such blanket criminalisation of consensual sexual acts among adolescents is gross oversight of their sexual development, bodily integrity and autonomy. It violates their right to life, privacy, and dignity.

The penal approach also impedes adolescents’ right to barrier-free access to sexual and reproductive health services and information recognised under the Rashtriya Kishor Swasthya Karyakram.

TheCriminalising consensual relationshipsndatory reporting obligation under the POCSO Act deters girls from availing themselves of medical services and pushes them towards unsafe abortions.

The inclusion of consensual and non-exploitative acts involving adolescents diverts time and resources from the investigation and trial of actual cases of sexual violence and exploitation.

According to Crime in India, 2021, 92.6% of cases under the POCSO Act were pending disposal. Consensual cases among these are overburdening the criminal justice system. There are abnormally high acquittal rates of 93.8% in cases related to consensual relationships and the girl did not say anything incriminating against the accused in 81.5% of the cases.

What are arguments in support of decriminalisation of consensual relationships between adolescents?

In Vijayalakshmi vs State Rep. (2021), the Madras High Court cited evidence that “adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy”.

The United Nations Committee on the Rights of the Child recommended that states should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.

What is the way forward?

Comprehensive sexuality education is needed to bridge knowledge gaps, build positive skills and attitudes. It will enable adolescents to make informed decisions and navigate through interpersonal relationships.

An amendment needs to be considered to the POCSO Act and the Indian Penal Code to decriminalise consensual acts involving adolescents above 16 years. It should also ensure that those above 16 years and below 18 years are protected against non-consensual acts.

Till such time as the law is amended, government agencies may consider exercising the discretion available to them under existing provisions in the best interest of children.