The fallacy in law when it comes to consensual sex among adolescents

The fallacy in law when it comes to consensual sex among adolescents

Author: Krishna BhattacharyaKIIT school of law, Bhubaneshwar, India

Teenagers or late adolescents ( 16-19 years) behave or have different needs than an earlier generation as every generation is affected by the social, political and economic conditions of that generation. The present generation has easy access to the internet and is active in social media sites because of which they are much more aware of sex than the past generation. During the adolescent stage, there is a hormonal change and also bio-pschyo-social development because they have the urge to have sex. Sex is always seen in the negative light but it is perfectly normal biological. Every individual has different needs. Instead always hushing whenever the word ‘sex’ comes or never talking about won’t solve any of the problems instead it will create more problems. It is not uncommon to see that teenagers especially in class 11, 12 or in college have serious relationships including sexual relationships. Movies and TV series such as the kissing booth, to all the boys I have loved before, 13 reasons why the classic a walk to remember and many more all show that how adolescents are in relationships. People love movies and are even aware of it but still chooses to ignore the subject of sex.

It is more disheartening to see the fallacy in criminal law when it comes to consensual sex among adolescents.

The sequence of such fallacy is as follows:

  • According to the Juvenile Justice( JJ) Act, children are defined as below 18 years but for certain heinous offenses children above 16 years but below 18 years can be tried as an adult.
  • The Protection of Children from Sexual Offences Act, 2012 ( POCSO) has been enacted to address child sexual abuse. This law is gender-neutral.

According to the Indian Penal Code (IPC) 1860, if there has been a rape irrespective of the consent then it is considered to be statutory rape. The definition of rape is defined in section 375 as ” A man is said to commit “rape” if he-—penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person……….” From the definition, it can be seen that here rape is gender bias. Rape done only to females are recognized.

  • The 2018 amendment in criminal law has made the punishment of rape more stringent. If rape has been committed on a girl below 18 years then the imprisonment shall be for life or rigorous imprisonment for 20 years or fine or both.

All these measures may seem good seeing the rise in the number of cases of rape. Stringent punishment must be given to those who rape a child. But if we read all the provisions together and consider that if two adolescents are involved.

Let’s take an example that a 17-year-old boy fell in love with a 16-year-old girl. They both met at a party. After that, they kept on texting each other. On 14th Feb they went to a party. They drank alcohol and got intimate. After that they had sex. This is a common scenario. Now and then we see this. 

But suppose the girl’s father found out that their daughter had sex. Most parents would pretend to be shocked and file a complaint of rape against the boy. Both the girl and the boy are minor. If a case is filed under POCSO then according to it a boy could also be raped. Due to the patriarchal mindset in most of the cases, it is always held that the boy had committed rape on the girl. If that is so then rape is a heinous offense for which the boy would be tried as an adult and hence subjected to stringent punishment which would ruin the life of the boy. There was consensus between both of them but still the sufferer would be the boy. If the boy would have been much older than the girl says for example difference of more than five years, in that case, it would not be wrong to presume that the boy might have coerced the girl into giving consent or manipulated her. But in a case where both the boy and the girl are of the same age then the scope of playing with mind does not arise. Both are in the same stage and their consent cannot be overlooked.

Another fallacy is that when JJ Act makes a separate provision for a heinous crime where the age is 16-18, which means that the Legislature and the court recognizes the fact that the late adolescents are capable to know the consequences of their actions and has a mind like an adult which is why they are treated as adult. But when it comes to consensual sex among late adolescents than the Legislature and the court suddenly declare them as a child and incapable of knowing the consequence of their actions.

In the case of Sabari& Anr vs. The Inspector of Police & Ors., the Madras high court also recognized this fallacy and suggested the government to amend the laws.

The consent of minors is no consent but the consent of the adolescent on the brink of attaining majority is recognition of the right to autonomy over the body with adequate comprehension of consequences as they are able to think in a more critical and pragmatic way. The adolescent’s right to privacy and confidentiality must be protected and respected by every person by all means and through all stages of a judicial process involving the child. The right of autonomy over the body allows whether or not to perform certain acts or subject themselves to certain experiences.

The Parliament has made these laws to prevent casual sex which makes a person prone to sexually transmitted diseases. But just by giving punishments the real problem would never be solved. Instead of this, the government should enhance the sex education given in schools and colleges.

Its time people recognize that consensual sex among teens is common and punishing just one gender or punishing at all will not help and this the great fallacy in law.