Scrutinizing the Adamant Boundaries of Consensual Sex: What is to be considered an ideal age?

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This article is written by Vijeta Mahara, a law graduate from Chanakya Law College, Rudrapur, Uttarakhand and curated by Himanshu Raj of CNLU Patna.

Prelude: In India ‘Sex’ is a still taboo that peoples neither talk about nor open up easily. Even in today’s era parents feel awkward discussing puberty and sex education, but, the biggest question is- who will decide the age of adulthood, The Law, society, State or biological factors? We have a different age of adulthood for different things. Indian Majority Act prescribes majority at 18, age for casting vote is 18; driving is 16-18, for drinking is 18, 21, 23, 25 ; adoption can be done at 21; work age is 14; and age for marriage is18 (for girls) and 21 for (boys).As the societal atmosphere is ever-evolving, the level of maturity whether mental or biological is constantly evolving with it, however, the way, the age of consent is interpreted and applied in our country is definitely a matter of concern because we tend to forget that the society is dynamic, which needs to change with time to survive. Ours is a society where unrestricted flaunt of love and affection is still frowned upon. But if we look at human history, whatever does not change with the changing time, ultimately results in failure, and the same is with the set boundaries of physical needs. In today’s progressive world at the age of 16, a boy or girl is completely able to differentiate between rights and wrong, the person by the age of 16 has acquired a notion of higher self. But being a stubborn society we don’t like to break the boundaries and think beyond.

World Statistics: In India, the age of consent is 18. Most places in the US set it at between 16 and 18 and through Romeo-Juliet laws eliminate or minimize the punishment if the age difference between partners is minute, in Angola, its 12, in Canada it is 16 but 14-15 can have sex with someone who is up to five years older. Argentina and Japan set the bar at 13. In Iran, to have sex you should be married, so you can be teenager having sex with 40 yr old husband as well and that’s legal! Sweden’s age of consent is 15, however, according to UNICEF, most countries have chosen to set the age of consent at 16 years. Studies across the world have established that children are attaining puberty earlier than before. There are reports confirming early initiation of children into sexual activities. Early sexual activity is directly attributable to the greater exposure that children nowadays have. All sorts of adult content and pornographic material is easily accessible online. A belief that it is too early for those between 16 and 18 to engage in intercourse is well-founded but most of the adults in different surveys admit having sex before the age of 18. Thus, keeping in mind all these perspectives, before discussing the age of consent with respect to sexual acts, there must be a clear understanding of the phrase “age of consent” which refers to an age where an individual is considered competent to understand the consequences of engaging in sexual activity with a free will.

Fallouts of a setting a higher age: It is pertinent to note that the forbidden fruit is always more lucrative and severe restrictions serve to fuel curiosity. It is really convenient for adults to put curbs on teenage sexuality rather than deal with related issues. The teenagers are already under an overdrive of hormones and when they are strictly refused of their urges there is a backlash. There are many well known cases around each one of us where the desire for togetherness compels young couples to elope and in most cases, the girl’s family legally frames the boy, young couples are harassed by false cases of rape against their partners, which in fact is not rape and is a teenage romance. Section 375 and 376 of the Indian Penal Code are frivolously applied in cases to restore the family’s honour ignoring the consensual relationships.
The idea of consent should be the same for all genders and the minimum age should reflect the capacity, age and maturity of the child. In India itself, a kid from 7-12 years is considered ‘Doli-Capax’ and after the 2013 amendment, in sexual offences, post 16 can be treated as an adult. So what we actually need is to guide the future generation but putting an absolute bar will lead to undesirable consequences. By legalizing a set higher age of consent we are criminalizing even consensual sexual activities and since it portrays illegal they are denied access to protective measures as well as safe medical procedures. We are duty bound to protect our children from unhealthy activities at their age as well as unnecessary prosecutions and punishments and that is only possible if we become more flexible with their changing needs.

The Legal Chronicle: The Madras High Court in a recent judgment suggested that consensual sex, physical contact or allied acts after the age of 16 be excluded from the ambit of POCSO Act and the definition of “child” under Section 2(d) of the Act be amended and reduced to 16 instead of 18 years on which Senior Advocate Vikas Pahwa stated “Considering the innovation in digital technology, the children are exposed to so much of information that they get matured much earlier and thus are in a position to give consent for any relationship even at the age of 16,” He also opined that this will also reduce the number of criminal cases pending in various courts, where the provisions of the Act are grossly misused as even when a girl in the intermediate age of 16-18 gives consent. Senior Advocate Geeta Luthra had recently stated that today’s adolescents, especially those who have attained the age of 16 are mentally fit and capable to take a call with respect physical contact. In 2017, the High Court of Himachal Pradesh in the case of State of Himachal Pradesh vs. Varinder Kumar passed an order wherein they dismissed the rape charges after concluding that both the parties had consented to sexual intercourse from when they were minors until they had attained majority. Also, in the case of State of MP vs. Munna, the Supreme Court held that consensual sex by a girl who is more than 16 years of age cannot be termed as rape.

Corollary: Teenagers in the 16 to 18 years bracket are sexually active and there is no point in suppressing tendencies when we have an option to handle it carefully. It is important to lower the age of consent and establish the age difference of 3 to 5 years between the consensual young couple. This would ultimately ensure that an older person does not take undue advantage of a young girl. Such an amendment in law, could offer protection to the young 16-year-old girl from sexual exploitation and harassment. A society can only become a better place when biological requirements are also accepted as a fact like any other need and not as a taboo. If Puberty and other biological changes are happening before 18 years of age then medically and scientifically sex can be also performed before that, therefore keeping a consent age without considering scientific facts and dynamic evolutions of society places sex as a forbidden act which actually is a need. Therefore, raising the age limit for sex by consent to 18 years would be unconstitutional as well as regressive in nature but also a step in the backward direction.

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