I am giving you an account of a real incident, a case of POCSO that prompted me to write this article.
The year before last, a 16 year old girl who was the survivor involved in the case was brought for medical examination as part of the medicolegal protocol of the POCSO Act( Protection Of Children from Sexual Offences Act). The protocol was being carried out by a friend of mine. It was not a case of rape, but of consensual sexual intercourse between two teenagers. But it would still be legally a case of rape since the survivor was a minor, under the provisions of the Act.
For the uninitiated, a survivor of an alleged sexual assault has to be examined by a doctor (female doctor in case of a girl survivor or male or female doctor as per the survivor's choice in case of transgenders) in strict privacy and with utmost care to make the survivor as comfortable and relaxed as possible. Only then may the survivor give a complete history of the events leading to the assault and full cooperation for a detailed physical examination and sample collection by the doctor. My friend, in her usual way, spoke to the girl with kindness and in a non judgemental way. So the girl soon felt comfortable enough to open up to her. While giving the history of events, she hesitated for a moment. When my friend reassured her to speak more, after making sure that no one would be able to listen to their conversation, the girl begged my friend for a way to save her lover from legal action. My friend hadn't expected this. Intrigued, she started speaking to her compassionately so as to get more details. The girl said the guy was only 17 years old and was her senior at school. They were in love and had sex. My friend had conducted medical examination on many teenage girls as part of the POCSO protocol, where they had willingly had sex with their lovers. But all those were cases of statutory rape, cases where teenage girls are taken advantage of by adult men with a significant age difference. Sexual act in cases of statutory rapes are not considered consensual. All those cases she had handled priorly were clear cases of sexual assault, where the vulnerable survivor and the accused had some considerable age gap and the survivor wasn't aware of the culprit's background and real intentions. So those cases of sexual exploitation were to be definitely dealt under POCSO.
But this time, it was different. Because this was between two teenagers who were in love. My friend didn't know what to say to the girl who was shocked, confused and scared by the unexpected turn of events. There was no coercion, manipulation or assault in the case. It was just a normal teenage romance that took a wrong turn. The wrong turn because adolescent sexuality has been criminalised in India by the POCSO Act of 2012.
With regard to the case, my friend was helpless. She knew the couple hadn't indulged in anything illegal but were merely behaving the most natural human behavior. She had to unwillingly continue with her work. But for days, she would be haunted by the girl's face. When we discussed this case later, we got curious as to whether this has never been challenged in the country. So we did some research.
We discovered that just a day before this happened, the Madras High Court had made some important observations in this regard in it's judgement of a similar POCSO case. The Court stated the need to make necessary amendments in the Act, making the following observations.[ 1]
" 27.Apart from the above, this Court is of the view that as per the 3rd respondent's report, majority of cases are due to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, 'Child' is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigours of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be.
28.When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an ๐ฎ๐ง๐ง๐๐ญ๐ฎ๐ซ๐๐ฅ ๐จ๐ง๐ ๐จ๐ซ ๐๐ฅ๐ข๐๐ง to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.
29.Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence. "
This means that the Court acknowledged the normality of adolescent sexuality and that it suggested the need for necessary amendments to the Act to exclude youngsters indulging in consensual sexual activity from being punished under the Act. The Court's observation was welcomed by various child rights activists, organisations and advocates in the country. But no amendments have been made till date while more adolescents all over country continue to take the brunt of the Act.
Before we discuss the need for the aforesaid amendments , let's first take a look at the POCSO Act and its origin.
๐๐ก๐ ๐๐๐๐๐ ๐๐๐ญ ๐๐ง๐ ๐ข๐ญ'๐ฌ ๐๐๐๐ค๐ ๐ซ๐จ๐ฎ๐ง๐.
In 2007, The Ministry of Women and Child Development in India released a Study of Child Abuse in India conducted with the support of UNICEF and 'Save the Children' , an NGO in India, with the help of Prayas, a Delhi based NGO [2]. The study was based on surveys done in thirteen Indian states. It studied the incidence and extend of sexual abuse among minors divided into three age groups, in different environments and various social settings . Sexual abuse of varying degree was studied among 12,447 children. Out of the total respondents, a whopping 53.22% reported to have had faced one or more forms of sexual abuse, which included severe forms of abuse. Out of this, 5.69% reported sexual assault, which in the study, were cases involving anal or vaginal penetration or oral sex.
The number of cases of sexual abuse of children in India were on a rise. But there were no separate laws to deal with such cases, except for the Goa Children's Act, 2003, an Act enabled to "protect, promote and preserve the best interests of Children in Goa and to create a society that is proud to be child friendly." Sexual crimes against children were dealt under various other sections of the Indian Penal Code.
In 1989, The United Nations adopted an international human rights treaty called the UNCRC or the United Nations Convention on the Rights of the Child, to protect the rights of children across the world, which was ratified by India in 1992. The implementation of the convention by the signatories are monitored by the UN Committee on the Rights of the Child, a panel of experts.
Article 34 of the UNCRC states that the "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials. "
The UNCRC states " States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. "
Article 15 of the Indian Constitution, among other provisions, "confers upon the State powers to make special provisions for children". Article 39 states that the State shall direct its policy to ensure that " the tender age of children are not abused" and " that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment".
In the background of the rising numbers of sexual crimes against children as indicated by the Study of Child Abuse in India, in compliance with the UNCRC as a signatory, and in accordance with the Constitution of India, the POCSO Act was enabled in India on November 14, 2012, to specifically deal with sexual offences against children.
๐๐ก๐ฒ ๐ญ๐ก๐ ๐๐๐ญ ๐ง๐๐๐๐ฌ ๐๐ฆ๐๐ง๐๐ฆ๐๐ง๐ญ.
'Let hundred guilty be acquitted but one innocent should not be convicted' is the fundamental maxim of the Constitution of India. But the POCSO Act may sometimes make it difficult to uphold this principle. As per Section 29 of the POCSO Act, the Court shall presume that the accused is guilty unless the contrary is proved. The Act was constructed this way to benefit children by emphasizing the fact that children's words are to be believed. This is unlike in other Acts where the accused is 'innocent until proven guilty.' Thus even in cases of mutually consenting adolescents the burden lies on the accused to prove his innocence, which in most cases is difficult. The punishment under POCSO for sexual assault is stringent with imprisonment for a term not less than 7 years or 10 years, which may extend to life imprisonment, also liable to fine. So it is important to exclude mutually consenting adolescents from penalty under the Act.
WHO defines adolescents as those in the 10 to 19 years age group. This being a period of raging hormones and adventure seeking, adolescents naturally tend to explore their sexuality, which becomes " illegal " activity according to the POCSO Act.
While there are a few more drawbacks to the Act which need to be looked into for better legislation , we will be discussing the most important one, which is the criminalisation of adolescent sexuality.
๐๐ก๐ ๐ฉ๐ข๐ญ๐๐๐ฅ๐ฅ๐ฌ.
The following are some of the ways the Act has flawed.
๐ดFailure in addressing the normal biological development .
The UNCRC had addressed the evolving capacity of adolescents defined as โan enabling principle that addresses the process of maturation and learning through which children progressively acquire competenciesโ in its general comment added in 2005. But the POCSO Act has totally disregarded the evolving capacity of children in India. Similar to the case I mentioned in the beginning, there are many adolescents who get criminalised for consensual sexual act.
A study conducted by the CCL- NLSIU( Centre for Child and the Law - National Law School of India University) on the implementation of the POCSO Act in Specialist Courts of five States( Delhi, Assam, Maharashtra, Karnataka and Andhra Pradesh) was published in 2018 [3] .The number of "romantic cases" in the five states were as follows.
Karnataka - 6 of the 110 (5.45%),
Delhi - 144 of 667 (21.58%),
Assam- 27 out of 172 (15.69%),
Maharashtra - 20.52 %,
Andhra Pradesh - 21.21%.
The study also found that most of these cases resulted in acquittal because the survivor turned hostile. The Courts were found to show sympathy and leniency in cases where the accused, who was an adult, and the survivor were already married or the accused was providing for the survivor and her child. The Courts either lessened the punishment or approved the marriage of the survivor and accused.This was in view that " it would be next to impossible to rehabilitate the victim and her child into a narrow-minded society", and that " marriage gives legitimacy and social acceptance to the relationship, and therefore, protects the victim and her child from further victimization by society".
In romantic cases this humanitarian approach by the Courts is welcome, only whenever no grooming, coercion or trickery was involved and the couple had only a small age gap. But at the same time, in cases of pregnancy and marriage, the Court may act according to the society's existing moral sense and prejudices in view of the over all good of the survivor, without considering the survivor's consent in the first place, thus leading to acquittal.
The Court may favour the accused by lessening the punishment in case of an indication of marriage, in line with the societal concept that marriage of the girl by the accused can save the honour of the girl. This is not to be encouraged, unless with the full consent of the girl and when the accused and survivor has only a small age gap, and had consensual sex, whether or not she was romantically involved. But it's difficult to verify if the girl had consented for marriage out of force from her family and/or threat from the accused and his party. Considering the same, in the ruling from Shimbhu vs State of Haryana, the Supreme Court had stated that " A compromise entered into between parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle ". In July 2020, a rape accused in a POCSO case approached the Kerala High Court seeking an interim bail to marry the survivor. Seeing this was being done by the accused in his fifties in order to escape his rigorous punishment of 20 years imprisonment with fine, an appeal was filed by an activist advocate and an organization against it stating it will set a bad precedent. The State government too opposed the bail plea.
It's difficult to verify if a minor survivor consented for marriage out of force or upon her own wish . The Court may consider the help of a counselor whenever marriage of the survivor is mentioned.
Another important aspect to be mentioned is that adolescents may also involve in sexual activities without any romantic intimacy or intention to marry. Though such actions may be morally wrong to the society, it is still no grounds for a legal punishment. This may put the girl under pressure to agree for marriage out of her moral obligation to save the boy.
The NCRB data on age specific POCSO cases published for the years 2017, 2018 and 2019 shows the following.
Nearly all of these cases of boy survivors must be that of actual sexual offences. But the number of girl survivors may include both that of consensual sexual act between adolescents or close-in -age couples as well as nonconsensual or that done through trickery, force or coercion. We can see that the number of girl survivors show a progressive increase with the age group with the maximum in the 16- 18 age group which is the age group when consensual sex mostly happens. In comparison,the the boy survivors is comparatively low in the 16-18 age group than in the other age groups.
In the 'Sunil Mahadev Patil v/s State of Maharashtra' case of 2015, the Court stated that when a girl and a boy are living against their parent's wishes, the following factors should be considered :
"1.What is the age of the prosecutrix, who is minor.
2.Whether the act is violent or not.
3.Whether there are antecedents or not.
4.Whether the offender is capable of repeating the Act or not.
5.Whether there is likelihood of threats or intimidation, if at all the boy is released.
6.Whether any chance of tampering with the material witnesses when their statements are recorded.
7.It is also to be taken into account in such cases that a boy in his early 20's deserves to get employment and to plan, stabilize and secure his future."
By dealing with consensual romantic cases, the Court under its heavy work load, loses its valuable time, resources and man power which could have been put to use to deal with actual cases of sexual offences done to children with force, coercion or trickery. According to an amicus curiae report to the Supreme Court in 2019 on the NCPCR's (National Commission for Protection of Child Rights) data collection on POCSO cases, the national average of disposal of POCSO cases was only 24 percentage.
The Act itself has emphasized the speedy trial of cases as per its Section 35(1) which states that evidence should be recorded within 30 days of the Special Court taking cognizance of the offence, and reasons for delay (if any) should be recorded and Section 35(2) which states the trial should be completed within one year of the court taking cognizance of the offence. The purpose of this provision is to ensure that trials are not dragged so that the child is not forced to relive the abuse for a long period of time. This may also put the child at a higher risk of facing secondary victimisation and social stigma.
Guideline 30 (c) of the United Nations 2005 Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime also underscores that professionals should "ensure that trials take place as soon as practical, unless delays are in the childโs best interest."
The other major issue with this is that with passing time, children can forget the events relevant to the case.
๐ดAge of Consent.
The National Commission for Protection of Child Rights (NCPCR) is a statutory body in India, established by an Act of Parliament, the Commission for Protection of Child Rights (CPCR) Act, 2005. The NCPCR which began functioning in 2007 aims "to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and the UN Convention on the Rights of the Child."
At the time the POCSO Act was being drafted, the NCPCR had suggested that the age of consent for sexual intercourse in the IPC ( that was 16 years) be retained to ensure that adolescent romance and sexuality doesn't get criminalised. This was before the Criminal Law (Amendment) Act or the Nirbhaya Act, 2013, which raised the age of consent from 16 to 18.
As mentioned in the CCL- NLSIU study, "the NCPCR had also recommended โclose- in- ageโ exemptions, which would decriminalise consensual non-penetrative sexual acts between two children above 12 years of age who are either of the same age or within two years of each other and consensual penetrative sexual acts between children above 14 years who are either of the same age or within three years of each other. The NCPCR Bill also proposed criminalization of non-consensual sexual acts with children between 16 and 18 years under specified circumstances." Decriminalization of consensual sexual activity between couples when there is only a small age gap was suggested too. The study suggests amendments to the Act that help in judgements without basing it purely on the ages of the involved, but rather the age gap, with comparisons with laws in other countries. "Such 'close-in-age' exceptions also exist in other jurisdictions, notably Canada, where the age of consent is 16 years, but a 14 or 15 year old can consent to sexual activity as long as the partner is not more than five years older, and there is no relationship of trust, authority or dependence between them. Several states in the United States of America also have these exemptions, called โage-spanโ provisions or Romeo and Juliet Laws. "
Romeo and Juliet laws are the laws passed by some countries which eliminates or reduces the severity of the penalty in cases where the couple have only a minor age difference and the act wouldn't have been rape if both of them were of the legal age to give consent. These laws vary between countries. However in such cases where the couple involved despite having only a small age difference, the older one happens to be an authoritative figure to the younger one, like a teacher, guard, coach etc, the person will not get the privilege of Romeo and Juliet defence.
Fixing 18 as the age of consent for sex and also for marriage, is indirectly giving the wrong message that marriage is only for sex. The minimum age of marriage should be 18 or above because marriage involves a lot of responsibility. But age of consent for sex doesn't need to be 18 because it doesn't involve any adult responsibility but is rather a normal phase of development. Besides, attainment of physical, sexual or psychological maturity is not an overnight process but one that happens gradually starting from adolescence. Hence strictly maintaining 18 as an age of consent, as for voting rights, obtaining a driver's license, entering legal contracts etc, is completely illogical.
๐ดThe Bias.
Besides criminalising adolescent sexuality, the law is gender biased. As per Section 15 of the Juvenile Justice Act, 2015, " in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order" that "there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Childrenโs Court having jurisdiction to try such offences."
Thus, in case of adolescent couples where both are above 16 and had consensual sex, both should be held equally responsible for the act. But the POCSO Act only considers the boy as the offender and the girl as the survivor ! This may have taken root from the very common social norm of a man having to be the older and more knowledged one of a couple as seen in majority of couples in India. But in law, it makes absolutely no sense, when both of them are in the same age group, and while it might very well have been the girl who took the initiative. This also indirectly reinforces the wrong idea that the girl is always the one to be the "victim" and the one at a risk of losing her honour forever. This victimisation of girls is in itself the result of the concept of virginity of women and its glorification by the Indian society. Thus the bias of the Act is damaging to both the boy and the girl.
๐ดConflict with other Acts.
Apart from it's contradiction with the Juvenile Justice Act as already mentioned, POCSO also clashes with the Prohibition of Child Marriage Act( PCMA), 2006 and the Personal Law.
POCSO considers the age of consent as 18, below which even consensual sex is considered an offence. According to the PCMA, and the Special Marriage Act of 1954, the legal age of marriage for girls is 18 and boys is 21. The Muslim Personal Law (Shariat) Application Act of 1937,a special Act for Muslims in India, states that a Muslim girl can marry once she attains puberty or completes the age of fifteen. But according to a Supreme Court ruling in 2017, sexual intercourse with a married girl below 18 years by her husband constitutes rape (although marital rape of women above the age of 18 is still not criminalised in India !). This means as per the Personal law, a minor girl may be married but the marriage should not be consummated till the age of 18. There is no way to confirm if sexual coercion has happened or not and almost no chance of such cases being reported. All this nonuniformity lead to confusions in the judgement of POCSO cases.
๐ดEthics and conscience against Law and legal safety.
According to the MTP(Medical Termination of Pregnancy) Act of 1971, a doctor can conduct an abortion for a minor , with the consent of the parent or guardian without having to report to the Police . But the POCSO Act mandates compulsory reporting, in case of a sexual activity involving a minor. This puts the doctors in a dilemma. Most of them are confused whether to provide legal abortion service but by putting themselves at risk, or to deny it for their legal safety but at the cost of their ethics and conscience. This is also forcing many adolescents to depend on quacks who conduct unscientific and unsafe illegal abortions.
๐๐ก๐ ๐๐๐ญ๐๐ซ๐ฆ๐๐ญ๐ก.
Criminalisation of adolescent sexuality, in effect, means that a lot of adolescents are indulging in an "illegal" activity. We know what the nation commonly considers as illegal. Activities like drug peddling and abuse, trafficking, illegal trades, murder, cheating, financial fraudulence, violence, and so many unlawful activities to name. And along with these crimes is adolescent sexual behavior added by the Act. What is even more horrifying is the fact that adolescents and young adults at a vulnerable age, while undergoing imprisonement get exposed to people engaging in actual criminal activities like the ones mentioned above. Given the sensitive nature of their age, especially after having been put through the traumatic legal proceedings, chances are that these youngsters may eventually end up doing various criminal activities in their later life.
In many instances, the survivor girl is placed in a shelter home( government/ voluntary/ NGO) while the accused is undergoing the sentence. I happened to speak to one such girl who was living in a shelter home as an aftermath of the POCSO case. She opened up about how difficult it was to live with a stigma attached of having been involved in some "criminal activity" that other girls of her age group in the neighborhood or society wouldn't be allowed to mingle with her and "girls like her" in fear of "being in bad company". She further added she wouldn't go back to her home in fear of poor treatment from her family, but at the same time was fearful that her lover would not want to marry her after all that he had to go through. Besides this, her studies was interrupted too. My understanding is that, by that stage, she and her lover both had been traumatised for ever.
The adolescents and young adults involved often end up having to deal with feelings of guilt and complications in their later sexual lives and relationships. They may also get confused about differentiating between healthy and unhealthy relations and manipulations.
Being at a vulnerable age, they get psychologically damaged after having to go to hospitals, police stations and courts. It may take a few years before the case is settled. By the time they enter into adulthood, their personalities might get permanently changed.
๐๐๐ญ๐ซ๐ข๐ฆ๐๐ง๐ญ๐๐ฅ ๐๐๐๐๐๐ญ๐ฌ ๐จ๐ง ๐ญ๐ก๐ ๐ฐ๐๐ฅ๐ฅ๐๐๐ข๐ง๐ ๐จ๐ ๐๐๐จ๐ฅ๐๐ฌ๐๐๐ง๐ญ๐ฌ.
The law makes it difficult for adolescents to seek adequate advice about their sexuality and reproductive health. They may end up in unwarranted situatione like teenage pregnancy, contraction of STDs etc. National Family Health Survey shows that the 15- 24 yrs age group contribute to 31% of AIDS patients in India.
In 2006, the Government launched an Adolescent Education Program(AEP) coordinated by NCERT, in partnership with the Ministry of Human Resource Development (MHRD) and United Nations Population Fund (UNFPA). AEP was to be in the school curriculum nationwide. Though it's main aim was to control HIV/ AIDS, it included information about physiological changes of the body during adolescence, conception , sexually transmitted illnesses, contraceptive methods etc. By 2007, the AEP was banned in 12 states since it was argued to be "against Indian values". In 2014, India's Health Minister even called it a "so called sex education program" speaking against it by mentioning it's "crudity and graphic representation of culturally objectionable symbols". Many top politicians of the country even advocated compulsory Yoga classes and 'Indian culture and values' in the place of AEP !!. Currently, only some selected part of the AEP is reported to be taught, if at all, in schools.
In the absence of adequate sex education in a country where the topic itself is taboo, the criminalisation of adolescent sexuality makes the situation worse.
๐๐ข๐ฌ๐ฎ๐ฌ๐ ๐จ๐ ๐ญ๐ก๐ ๐๐๐ญ.
โซ๏ธ Misuse by parents to take revenge on their child's lover.
Our country, while completely ignoring the "evolving capacities" of adolescents while implementing the Act, has given itself up to the society's unwritten moral laws. The Act, in a way, has been designed to satisfy the fake morality of the Indian society which forbids love and sexuality before marriage. Even when the Indian society may consider exploration of adolescent sexuality as normal, it's acceptable only as long as it's only self exploration or masturbation and not with involvement of another individual as per one's sexual orientation.They will be particularly angry about the fact that the girl had intercourse while still at a young age, without trying to understand that the boy didn't have any wrong intensions and that romantic physical involvements are quite normal in that age group. It has become an easy tool for too many ruthless Indian parents who want to 'teach their kid's lover a lesson' and want the accused be awarded maximum punishment.
According to a study published in April, 2020 by Madhu Mehra and Amrita Nandy, 'Why Girls Run Away to Marry- Adolescent Realities and Socio- Legal Responses in India,' the Act "has lent itself to enforcing parental and caste controls over daughters." Also they have aptly stated that, "In stigmatizing all adolescent sexuality, the law reinforces the association of shame and secrecy with sex, discouraging adolescents from seeking help when in trouble. It lays the foundation for often lifelong association of shame with sex and difficulties in negotiating sexual pleasure. The third concern arises from the legal requirement to report sexual abuse, backed with penalties against those who fail to do so. This puts educators, counsellors, health care providers and social workers at special risk because they are most likely to be approached by adolescents." The study also showed that majority of them belonged to the socially backward communities and were from low economic background. [4]
In one instance I know , a girl was brought for medical examination despite the girl denying any sexual contact. Her adamant mother insisted she undergo a medical examination. When the examination was conducted with the girl's consent, there were no findings suggestive of sexual contact.The girl was indeed saying the truth. But the Doctor had to fill out twenty something pages of a POCSO register, the staff had to waste time in getting the kit ready for sample collection, making arrangements for privacy during the history and examination, all the while attracting the ire of other patients from making them wait for so long , a common incident in government hospitals which mostly has only one duty doctor at a time after the morning hours. She could very well talk her daughter out of the relationship if she felt it wasn't a right one. There are so many similar parents in the country who thoughtlessly drag their kids of such a sensitive age group , to hospitals, police stations and Courts.
โซ๏ธ Oppression of the unaware and socially backward.
In Wayanad district of Kerala, several tribal men were arrested in 2016 under the POCSO Act for marrying minor girls in their late teens, in accordance with their tradition. Similar arrests also happened in Idukki and at Attappadi in Palakkad district . Many of them got imprisoned. Following this, protests happened in Wayand district, were most of the arrests were recorded. By the time it came to the notice of Human Rights Activists, it was found that 20 men were arrested under the Act. These tribal youths were unaware of the POCSO Act or its stringent punishments. There were no awareness programs in the first place. Secondly, if tribal groups cannot act above the law, then the law should also have made necessary changes to the Personal Act( which allows Muslim girls to be married on attaining puberty or the age of fifteen ). Not just in Kerala, but also in other parts of the country, several indigenous groups may have their own traditions. All of them need to be made aware of the Act before it's being used as a tool for their further ouppression.
It's obvious that in both the above cases, the penalised ones were easy targets. The nature of all the POCSO cases that has been showing an increase in number over the years need to be reviewed in this background .
๐๐ฑ๐๐ฆ๐ฉ๐ฅ๐ ๐จ๐ ๐ ๐ฏ๐ข๐๐ญ๐ข๐ฆ.
Recently a young man, who was a popular tiktoker committed suicide. It might be better to say he was killed by the law and the society. He had been arrested a few years back under the POCSO Act for having consensual sex with his girlfriend who was only 17 years then. They later got married when both of them attained the legal age of marriage.
A few months prior to his death he had posted a video explaining the truth about the case, in the instance of being the target of a smear campaign by some of his immature and insensitive tik tok rivals. A newspaper clipping of the report of the case labelling him a rapist was being circulated in some social media platforms.
His death sparked several discussions and debates on social media. But what caught my attention was how several people perceived the POCSO case he was involved in and his marriage. While most people actually intended to support him, they seemed to believe that he did a 'mistake of having had sex with his girlfriend' and that he ' however had corrected it through marriage'. This statement is wrong on so many levels. First of all, it was not a case of rape, secondly, sexual involvement with someone you love is not a mistake. Thirdly, marriage is never a correction for the mistake or wrong that is rape.
This case is a perfect example of the stigma related to POCSO cases and it's aftermath. How much of it had affected him is unknown. We may never know what exactly was the reason that pushed him to take the ultimate step. He is believed to have been psychologically affected. So the distress caused by the stigma of being labelled a "rapist" can't be completely ruled out.
Though I had the misfortune to learn about this gentleman only after his death, what I understand is that he had enjoyed an immense pan India fan base. Such tremendous creative potential has been wasted. To think that the Act poses a threat to thousands of adolescents and youngsters in India and that many of them are already going through the turmoil and facing the catastrophic fate is scary.
๐ ๐ซ๐๐ฆ๐ข๐ง๐๐๐ซ
I think our judiciary totally forgot about the inhabitants of the North Sentinel Island, considered the most isolated people in the world, a part of our country. The Sentinelese have been extremely hostile to outsiders, even resulting in the deaths of some intruders in the past. In 1996, the government decided to stop all it's attempts to establish contact with them with only aerial circumnavigation and surveillance done these days. To this day, the land and its culture remain unbreachable. Their extreme hostility towards outside elements has made it impossible for us to know about their social structure or practices. Being an indigenous population that has been on voluntary isolation for an estimated 30,000 years or more, chances are that their young people might be indulging in sexual activities. We don't know. Considering the fact that they have a very primitive form of society, their actions may be raw and as per normal human instincts, and not based on social rules set down by the modern world. So while there may be adolescents in the Sentinel Island engaging in normal sexual behavior, isn't it wrong to punish their contemporaries living in the mainland for the same. This reference has not been made to encourage any encroachment into that primitive world, but to point out how the POCSO Act has unwittingly become one of double standards.
๐๐จ๐ฅ๐ฎ๐ญ๐ข๐จ๐ง๐ฌ / ๐๐๐๐จ๐ฆ๐ฆ๐๐ง๐๐๐ญ๐ข๐จ๐ง๐ฌ.
Without doubt, sexual offences against children are to be punished. But the Act needs to be refined to serve the real purpose of punishing sex offenders instead of adolescents who should be benefiting from the Act . These are some of the solutions suggested by several expert bodies in the country, concluded from their detailed studies and researches on the subject.
1 Display statutory warning in movies and creative illustrations involving adolescent romance or intimacy, till any amendments are made.
2 Introduce 'close- in - age' exceptions and Romeo and Juliet clause.
3 Bring down the age of consent for sex to sixteen.
4 Maintain accurate data and conduct studies on the POCSO cases registered from 2012, on consensuality, age of the involved, and follow up into their lives after the case disposal.
5 Raise the legal age of marriage to 21, for all irrespective of gender or religion.
6 Avoid arrests of aboriginals and indigenous people unaware of the Act, and conduct awareness programs in rural and tribal areas.
7 Make marital rape a criminal offence.
8 Abolish mandatory reporting of all the cases to Police. Doctors may be given the discretion to decide what case to report and what not to, so that sexual offences will be reported while, adolescents involving in consensual sex will be provided necessary services on approaching health care providers for contraception, treatment of STI, counseling, abortion etc without them being reported.
9 Conduct sexual and reproductive educational programs and, also for awareness of contraceptive methods among school and college students.
10 Reintroduce full fledged AEP in all schools and conduct classes at community level.
11 Make provision that gives authority to a male doctor on duty to provide emergency medical care and conduct examination in the presence of a chaperone, whenever a female doctor is unavailable.
๐๐ญ๐ก๐๐ซ ๐๐จ๐ง๐๐๐ซ๐ง๐ฌ.
There are some other loopholes as well in the POCSO Act.
1.There are cases where the survivor is a minor boy and the accused is a minor girl as happened in a case in Uttar Pradesh. The law has no provision to deal with such scenarios.
2.As already mentioned, the Act mandates examination by a female doctor in case the survivor is a girl. But as per the Criminal Law Amendment Act, Section 166A of Indian Penal Code, the Government medical officer on duty should examine the rape victim without fail.This creates some problems when there is no female doctor available. Especially in rural parts of the country where such unavailability exists, travelling to another hospital would be impractical. At the same time, the Act mandates that medical care given and examination should be done at the earliest and not later than 24 hours of knowing about the offence.
3.It fails to consider the mentally ill by not being inclusive of people whose mental age is below 18.
4.There was an appeal in 2019 for change in capital punishment in case of rape of a child below 12 years, keeping in view of chances of non reporting by the survivor or family since they may be unwilling to have death penalty awarded to the culprit. This is particularly in cases where the accused is known to the survivor. The National Study on Child Abuse done in 2007 had found that in 50% cases the accused was a known person to the child. This shows that there are a high chance of non-reporting of cases.
๐๐ญ๐๐ญ๐ข๐ฌ๐ญ๐ข๐๐๐ฅ ๐ฌ๐ญ๐ฎ๐๐ข๐๐ฌ.
WHO conducted a study in 2002 on sexual trends among fifteen year olds from 35 countries. They found that while the percentage of boys who involved in sexual intercourse was often higher than girls, the emerging trends indicated that as many or more girls were sexually active by age 15. The median age of first intercourse in most countries was found to be sixteen to nineteen years for girls, and seventeen to nineteen years for boys.
In a cross sectional study conducted on class 9 to 12 school students in Maharashtra, by the Department of Psychiatry, AFMC in 2012, proformas of 357 boys and 229 girls were analysed. The following findings were obtained.
Boys Girls
History of *sexual contact 30.08 % 17.18%
History of sexual intercourse 6.31% 1.31%
Average age at first sexual 13. 72 14.09
contact
Average age of first Sexual 15.25 16.66
Intercourse
(*sexual contact described as having touched private parts, kissing, or sexual intercourse.)
The BMC Public Health journal published an article in July 2020 ' Transitions in the adolescent boys and young Men's high- risk behavior in India' comparing the statistics from NFHS 3 and 4 ( National Family Health Survey). NFHS- 3 was for the years 2005โ06 and NFHS-4 for 2015โ16. Men were divided into two groups - 15โ19โyears (adolescent) and 20โ24 (young men). High risk sexual behavior is defined as sexual intercourse in the last 12 months with someone who is neither a spouse nor a cohabiting partner. High risk sexual behavior was found to have had increased among adolescent boys from 64 to 70%, and young men from 18 to 27%, from 2005โ06 to 2015โ16.
Mean age of first sex for adolescent males in NFHS - 3 was 15.8 and NFHS- 4 was 16.3 .
In a community based study on premarital relationship among unmarried youth( 15 to 24 year olds in urban slums and rural areas in Pune, Maharashtra done in 2007, it was found that 17-24% of boys and 5-8% of girls had had a romantic relationship, 20-26% of boys and 4-6% girls had engaged in some form of physical intimacy and 16-18% or boys and 1-2% of girls had had sex.
From the above studies and surveys, it's clear that adolescent sexual activity has only increased over the years. Compared to previous decades, with the advent of internet and social media, children now have more access to information regarding sex. It's not possible to reverse the trend and any efforts toward suppression of their behavior may go in vain. What is more important is to acknowledge their evolving capacities, and provide the right information, education and services .
๐๐จ๐ง๐๐ฅ๐ฎ๐ฌ๐ข๐จ๐ง.
The POCSO Act should exist to prevent sexual abuse of children which is unnatural and not to criminalise what is natural of a human. Besides, criminalising adolescent sexuality is in direct conflict with the very principle of upholding the " best interests " of the child as per Article 3 of UNCRC and Article 12 which mandates the States Parties to give rights to the child to express his or her views "in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."
Considering adolescent sexuality and premarital sex as wrong and against Indian values is denying human biology itself. While criminalising doesn't change their normal behavior, it further harms them at a vulnerable age. An impact that may last a lifetime.
Having come into effect only in 2012, the POCSO Act can't even be labelled outdated or colonial. In a certain way, the Act satisfies and reinforces the same set of social norms which needs to change. The judiciary plays a huge role in shaping a society by correcting the wrong ways a society thinks or acts. This is not only by serving justice but also by introducing or amending laws to ensure embracement of progressive thoughts by the society and fortification of what is ethically right. The scrapping of Section 377 of IPC to decriminalise homosexuality and Section 497 to decriminalise adultery are brilliant examples of how the judicial system have been successful in giving a new perspective to many benighted ones in the country.
What is highly ironical is that, while many of the real perpetrators who should be punished under the POCSO Act, walk free using their political, financial or social power, the powerless children still in their teen years or early youth get punished for something that's part of their normal development.Thousands of doctors, child rights activists and other service providers across the country are forced to watch this injustice happening on a frequent basis.
I already mentioned about our less understood brothers, the Sentinelese . But most of you may be unaware of the Muria, a tribal group of people in Chhathidgarh, who have a system of encouraging their youth including adolescents to explore their sexuality and involve in varying degrees of sexual activities upto sexual intercourse, through special sexual rituals conducted in what is called a Ghotul, a kind of hut . This is without requiring any prior emotional attachments or marriage between the couples. The couple are encouraged to change partners after a few days. It's also a kind of cultural centre where they learn social values and skills under the supervision of elders in the tribe. Though there are not many studies or reports about them and many of the customs have already vanished with the encroachment of Hinduism into their aboriginal religion , it's quite surprising to find we have an ethnic group of people in the country who was, or is living in alignment with Nature and innate human behavior . They give utmost importance to gender equality and to girls' consent for marriage. According to some reports they have no sex related crimes in the tribe because of this tradition. As already mentioned the religious beliefs of various aboriginal groups in the country including the Murias are based on animism, a doctrine that attributes spiritual essense to objects, creatures and places. The tribe's sense of morality have been under the attack of not just a seemingly progressive outside world but also the Maoists in the area highly critical of the custom . Acknowledgement of adolescent sexuality and appreciation of sex as an expression of love without considering it a taboo is something the "modern world" needs to imbibe from this ethnic group of people . Their tradition reminds me of what eminent psychiatrist Carl Jung once observed. "If you think along the lines of Nature, then you think properly".
By suppressing what is inherent in us, aren't we going against the fundamental human qualities and thus doing more harm? Isn't morality merely a concept of the times we live in? We need to contemplate the effects of our moralistic nature as a modern day society. We need to remember every day that biologically we are the same species that inhabited the planet thousands of years ago. Its about time the judiciary woke up to this major mistake they have done to the future generation of the country so that necessary amendments are made before more damage is inflicted .
