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Child Sexual Abuse and the Law

Research Paper

Drsika Bhutani

18010768

B.A.LL.B. - A (2018)

The Criminalisation of Consensual Sexual Relationships and the Law under the
Protection of Children from Sexual Offences (‘POCSO’) Act, 2012.

As per Section 2(d) of the Protection of Children from Sexual Offences (‘POCSO’) Act, 2012, a
‘child’ is defined as a person who is below the age of 18 years. As a result of the same, the act ends
up criminalising all sexual contact among or with a person under the age of 18 years, regardless of
the fact whether the act was consensual or not. Though romantic relations with or among minors can
be complicated and nuanced, the blatant refusal to acknowledge the mere possibility of any form of
consensual and non-exploitative sexual relations results in an extremely high number of young
couples who find themselves entrapped in the criminal justice system. Ideally and realistically, the
POCSO was curated to protect children from the horrors of society, namely sexual abuse,
exploitation, trafficking, etc., however, what the legislation also ends up doing is taking a
paternalistic approach to sexuality and in return treating young people as those who are incapable of
making smart and informed decisions. This approach is problematic and does not align with
contemporary understandings of consensual sexual relationships. The very laws that not only take a
protectionist approach instead of a righteous one, also end up becoming an instrument to induce fear
and enable control and regulation of the sexuality of adolescents.

The UN Committee on the Rights of the Child (CRC) defines adolescence to be “a unique defining
stage of human development characterized by rapid brain development and physical growth,
enhanced cognitive ability, the onset of puberty and sexual awareness and newly emerging abilities,
strengths and skills.”1 Individuals have a right to make their own decisions about their sexual lives.
As people grow and develop, they develop sexual desires and interests, and they should have the
freedom to explore those desires in a consensual manner. By criminalizing all sexual activity with
1
UN Committee on the Rights of the Child (CRC), General comment No. 20 (2016) on the implementation of the rights of
the child during adolescence, 6 December 2016, CRC/C/GC/20.
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individuals under the age of 18, the POCSO Act denies young people the right to make decisions
about their own bodies and their own sexual lives. In a study published in the Journal of Adolescent
Health, researchers found that young people can make informed decisions about sexual behaviour
and that sex education can improve their decision-making abilities.2 The Act therefore also
contradicts empirical research on young people's capacity for decision-making, the contemporary
understandings of sexual relationships or the realities of young people's sexual behaviour are not
reflected by this approach either. Adolescents are more likely to engage in sexual activity with peers
who are close in age, and criminalizing such behaviour does not reflect the reality of their lives.

A sizable number of cases under the POCSO Act are that which fall under the category of ‘Romantic
Cases’, out of which a significant amount is that of situations where a complaint has been lodged by
the parents where the girl has left the home to be with her romantic partner, mostly in these cases the
girls are running away from violent households, forced marriage or when the relationship in question
is met with a lot of disapproval from families and others. After the procedure when the girl is found,
in case there has been sexual contact between the girl and her partner, it attracts charges as per the
POCSO Act. Regardless of the girl asserting time and again that the act was consensual, the men are
charged with sexual offences and face criminal prosecution. The girls are always given the status of
that of the victim, for in the paternalistic approach of the statute females still do not have sexual
autonomy, regardless of their free will and choice to partake in consensual acts, and are either sent
back to their parents or are institutionalised in cases where there has been a fallout with the parents.
The said institutionalisation of the girls until they attain the age of 18 puts their life at a standstill
unless they agree to go back to their families. The study conducted on 1715 ‘romantic cases’ under
POCSO Act between 2016-20 by the Special Courts in Assam, Maharashtra and West Bengal by
Enfold Proactive Health Trust showcased that not only did these romantic cases constitute 24.3% of
the total cases that were decided upon by the courts, but also that of these, 80.2% were reported by
the girl’s parents or relatives in case she went missing, was pregnant or in that of elopement. The
accused and the victim were married in 46.5% of the cases and 85.5% of the relationships were said
to be consensual by the girl. The Special Courts acknowledged that the relationship was in fact
consensual in 61.7% of the cases and the percentage of acquittals in these cases was 93.8%. 3
Various High Courts have time and again also recognised these relationships to be of a consensual

2
Kirby D., Laris B. A., & Rolleri L. A, “Sex and HIV education programs: Their impact on sexual behaviours of young
people throughout the world.” Journal of Adolescent Health, (2007). 40(3), 206-217.
3
Swagata Raha and Shruthi Ramakrishnan, “Changing the age of consent” (2022) available at:
https://www.thehindu.com/opinion/op-ed/changing-the-age-of-consent/article65849243.ece accessed: 27 March
2023.
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nature, instances of the same can be seen in the case of Vijaylakshmi v. State Rep 4, the Madras High
Court stated that punishing an individual for entering into a relationship and treating them like an
offender was “never the objective of the POCSO Act.” In Sabari v. Inspector of Police, 5 the Madras
High Court observed that there is a severe impact on the lives of young people who fall under the
ambit of the POCSO Act and that these consensual relationships should not be treated as
“unnatural.” In fact, the court had said in passing as orbiter dicta that consensual sexual activity
between minors above the age of 16 should not be considered to be criminal. In many cases, the
result is an acquittal or grant of bail when the relationship eventually gets the backing of a marriage,
one such instance can be seen in the case of Bande Rama v. the State of Karnataka6.

The UNCRC (UN Convention on the Rights of the Child), to which India has acceded, sees children
as right-holders. The UN Committee on the Rights of the Child urges States to “avoid criminalising
adolescents of similar ages for factually consensual and non-exploitative activity” 7. In addition to
the lack of compatibility with International Human Rights standards, POCSO Act also raises
constitutional concerns. The Supreme Court in the case of Justice K.S. Puttuswamy & Anr. v. Union
of India8 recognised the right to privacy as a fundamental right and the same included at its core the
preservation of personal intimacies. The Supreme Court further in the case of Navtej Singh Johar v.
Union of India9 recognised consensual intimacies to be under constitutional protection which
formed an integral part of personal liberty under Article 21 of the Constitution of India.

It would not be a far stretch to say that the law is not in sync with the very realities of an adolescent
relationship. Though, time and again, marriage has influenced the courts to consider a relationship
to be consensual and the quashing of the said case, it is imperative for the law to consider that
sexual behaviours are normal when it comes to adolescents and that not all relationships end in
marriage. The POCSO Act should be amended to permit consensual sexual relationships between
adolescents. This approach would reflect contemporary understandings of sexual relationships,
respect young people's autonomy, and avoid the unintended negative consequences of criminalizing
consensual sexual behaviour. Consensual relationships among young adolescents should not have to
go through unnecessary police investigation, police trial, social humiliation, isolation, and
4
Vijaylakshmi v. State Rep [2021] Crl. O.P.No.232 of 2021
5
Sabari v. Inspector of Police [2018] Criminal Appeal No.490 of 2018
6
Bande Rama v. the State of Karnataka [2022] Criminal Petition no. 6214 of 2022.
7
UN Committee on the Rights of the Child (CRC), General comment No. 20 (2016) on the implementation of the rights
of the child during adolescence, 6 December 2016, CRC/C/GC/20.
8
Justice K.S. Puttuswamy & Anr. v. Union of India [2012 ]WRIT PETITION (CIVIL) NO. 494 OF 2012
9
Navtej Singh Johar v. Union of India [2016] WRIT PETITION (CRIMINAL) NO. 76 OF 2016
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institutionalism that comes from it. The approach of blanket criminalisation doesn’t subsequently
result in the strengthening of the stances when it comes to various other concerns such as
trafficking, exploitation, etc., the realistic way to go about that is to strengthen the respective laws
for the areas of concern. The POCSO Act shouldn’t be enacted as a mechanism acting in proxy of
those laws that are lacking in themselves.