Tag Archive for age of consent

The Criminal Law (Amendment) Bill, 2013: Facts & Myths

Criminal law bill India

By Team FI

A group of feminist activists and lawyers in India have created a facts and myths sheet to educate the public about the certain aspects of the Criminal law (Amendment) Bill, 2013, which have generated a lot of pro and con discussions. The fact sheet circulated yesterday is published below.

The Justice Verma Committee (JVC) report was a landmark statement, applauded by all citizens, welcomed by all Political Parties. JVC was significant because it showed a mirror to the Constitution of India, and reflected its wise and just guarantees of women’s equality. Today the women and youth of India are looking with hope and expectation towards Parliament, and towards all Political Parties. We urge all Members of Parliament to pass a law upholding the spirit and letter of the Justice Verma Committee; to pass a law that makes a step forward in our collective struggle to end sexual violence in India.

Myth 1: The Criminal Law (Amendment) Bill 2013 is against men.

Fact: The new anti-sexual violence Bill is NOT against men. For our fathers, brothers, husbands, partners, neighbours and colleagues are men too. Are these Men in our lives not committed to seeking an end to the constant threat of sexual violence lurking around every corner? Yes, men must, and men do support this Bill. For this bill is against criminals. It is against the scourge of sexual violence, and seeks to prevent and protect our society from heinous sexual crimes like rape, molestation, disrobing and parading women or stalking.

We know that men too can be vulnerable to sexual attacks by criminal men. And we welcome the Bill’s recognition that both men and women can be victims of acid attack and provides protection to all ‘persons’ for these offences. But we further ask you, our Parliamentarians, to recognize that men must also be protected against the crime of rape and custodial rape committed by other men, and to change the definition of victim in section 375 and section 376 (2) to ‘person’ and not restrict victimhood in these instances to women alone. Men and women are and must remain partners in this battle against sexual violence.And all‘persons’ deserve protection of the law against rape.

Myth 2: If the age of consent for sexual act is lowered to 16 years, this will encourage child marriage, prostitution and trafficking.

Fact: The age of consent for sexual relations in India has stood at 16 years for the last 30 years, since 1983. The age was increased without adequate public discussion in the Protection of Children from Sexual Offences Act, May 2012, 9 months ago, and later, in the hasty Criminal Law (Amendment) Ordinance of Feb 4th 2013. The JVC report recommends that it be retained at 16 years as it always has been in the IPC, to prevent criminalization of young persons for consensual sex. Women’s groups are merely asking for it to be retained at 16 years, rather than increase it unthinkingly to 18 years.

Retaining age of consent at 16 years does not mean social or moral endorsement or encouragement of teenage sexual activity. The law is not asking young people to do this or that. This is merely an acknowledgement that if two young people consensually decide to engage in sexual contact, we might want to teach them and educate them but we do not want to treat them instantly as criminals, or consign them to custody. For that is what ‘age of consent’ means – it means that a boy who has sexual contact with someone below the age of consent is committing statutory rape. If that age is now raised to 18, it means that boys of 16-18 years, or slightly older, will be held guilty of committing statutory rape if they have consensual sex with another person who is also between 16-18 years. In such cases, the judge will have no discretion under law and will be forced to place such boys in protection home (if under 18 years) or in jails (18 or above).

Indian society does not wish to treat as criminals and rapists young men and women who might engage in consensual sexual acts. For we must recognize that ‘criminalizing as RAPE’, the consensual acts of young adults, will make most vulnerable our young men, particularly those from marginalized communities. Third party complaints of statutory rape against young boys will force the Courts to condemn them to prison (if over 18) or protection homes for juveniles (if under 18) for committing no crime other than consensual sexual contact.

We must retain the age at 16 because raising the age to 18 years does not provide additional protection to young women against rape or sexual assault. It only serves to increase societal control over the lives and decisions of young persons, both young men and women. To protect their fundamental rights including the right to choice and sexual autonomy and agency, the law must keep 16 years as the age of consent for sexual acts.

Why should the age of marriage be 18 years and consent for sexual acts be retained at 16 years?

The age of marriage must be retained at 18 years. Marriage is a serious commitment and entails many long-term responsibilities of life, and it is appropriate to keep the age of marriage at 18 years. But there is no merit or useful purpose served by keeping one uniform legal age for every act of a human being. Studies, surveys and research conducted across India, including in rural India, all indicate that young people are engaging in consensual sexual activity between the ages of 16-18 years. The anxiety and legitimate concerns of parents on this count is real and valid. However, the answer to that lies outside the law – in education in schools and within families, and communication between the parents, teachers and young persons.

Retaining the age of consent at 16 years is only to ensure that when teenagers engage in consensual sexual activity, it does not lead to young boys being punished and imprisoned. Retaining age of consent for sexual contact at 16 years does not have any bearing or adverse impact on the efforts to prevent child marriage, to which we all stand committed.

In any case, marriage of persons under 18 years is legal and valid under the law. Consequently, sex between spouses, one or both of who may be between 16-18 years is not criminalized. Raising the age of consent to 18 years, treats consensual sex between married persons, one or both of whom may be between 16-18 years, differentially from sex between unmarried persons of the same age group. Tainting an unmarried boy of under or above 18 years with the stigma of criminality for consensual sex is unduly harsh and discriminatory, when compared with the legal status of a married boy of the same age.

Will the age of consent at 16 years lead to more trafficking and forced prostitution of women and children?

It must be emphasized that key to the definition of RAPE is the absence of consent of the woman. Each case where there is such absence of consent must be treated as a crime and punished.

In the case of trafficking and forced prostitution this issue of ‘consent’ whether at 16 or 18 is totally irrelevant. In cases of trafficking or forced prostitution, the consent of the girl or woman at any age is neither free nor voluntary; it is coerced and hence in the eyes of law does not amount to consent. The issue of age is irrelevant in all cases of trafficking and forced prostitution. As pointed out in the Justice Verma Committee Report, the police and other powerful forces are complicit in the crime of trafficking and forcing women and children into exploitative work. The 2013 Bill has special provisions to deal with Trafficking and we must ensure that these are rigorously enforced by the police.

Myth 3: The offences of Voyeurism and Stalking will trap innocent men.

Fact: The offence of Voyeurism as defined in Sec. 354C IPC, is very specific and pointed in scope and has no possibility of misuse or abuse. In villages, towns and cities, we know that the poor do not enjoy the luxury of a private bathroom in their homes. This makes the young girls and women particularly vulnerable to sexual abuse even as they perform routine activities of bathing, attending to the call of nature in fields and open public places. They are always fearful of men who may use this occasion to watch them or take pictures of them as they perform these private activities. The offence of Voyeurism will punish a man who watches or records a woman while she is in any private act where her private body parts may be exposed. This offence seeks to uphold the dignity of women and makes the violation of their fundamental right to privacy a crime.

Stalking: The crime of stalking takes a serious toll on the life of women. Gripped by fear and anxiety due to being repeatedly followed by a man, girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalker. The rape and murder of the young law student Priyadarshini Mattoo, is a grim reminder that if the stalker is not stopped, he can rape and kill. Stalkers are also known to throw acid on their victims, as a way to take revenge. By making stalking a crime, the law can actually prevent rape and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime will fill an important lacuna in the present law. Only in situations where a man repeatedly follows a woman, either physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognised as such.

Featured illustration by FeministsIndia

Women: Married to Personal Laws?

Girls India

In India, caste and religion seem to be the considering factors for deciding the marriageable age of a woman, rather than her constitutional right to self-determination

By Indira Jaising

The Delhi High Court ruling upholding the marriage of the 15-year-old Muslim girl, exposes the fault lines in the Indian Constitution. As usual, these cracks emerge where women reside. Why are women bereft of fundamental rights, why must “personal laws” and not the right to be human determine the public space which we inhabit?

The Delhi HC is not the only example of religious considerations influencing court judgements. Take this recent example of divided and contradictory policies on marriage from Rajasthan. The newly enacted Compulsory Registration of Marriages Act- 2009, requires the consent of the parents to register a marriage, if the girl is below 21 years of age. This means that though a girl may marry without parental consent after 18, she will not be able to register the marriage (make it legal) till she reaches the age of 21. The object here is to prevent inter-caste marriages and give parents an opportunity to oppose the marriage when a girl marries outside of caste.

The Rajasthan High Court also gave a judgement that Arya Samaj marriages cannot take place without parental consent. The Arya Samaj, a movement which came into existence in opposition to caste hierarchies, is now compelled to give way to caste based objections to marriage.

Perhaps what we need is a universally applicable law, regardless of religion, which makes all marriages below 16 void; make those marriages between 16 and 18 voidable; and rape within marriage outlawed. We also need to alter our laws relating to “kidnapping from lawful guardianship” which enable parents to file complaints of kidnapping when a daughter marries outside the caste, while they do not object to getting 15-year-olds married within caste.

Would the Delhi case ruling have been different if this had been a Hindu girl? She would have had the protection of a law which fixes the age of lawful marriage at 18, and not puberty. But that is only half the battle won. A marriage below the age of 18, even for a Hindu girl, is not void, just nearly voidable, putting the onus of avoiding the marriage on her.

Deciding ‘marriageable age’ is normally done on the basis of the right to health, to avoid early pregnancies, to ensure a degree of maturity at the age of marriage and the ability to protect oneself against exploitation and rape within marriage (which is however still not an offence)

Last month, India, in its attempt to tackle child sexual abuse, proposed to raise the age of consent for sex from 16 years to 18. Considering this, one wonders whether it makes any sense to permit marriages at 15, when the consent to sexual relations is raised to 18? The ability to feel sexually engaged is not dependent on laws fixing the age of consent. It is by and large recognised that a girl is capable of giving consent to sexual relations at the age of 16. Raising it to 18, however, will only enable more parents to bring charges of rape when they disapprove of the person with whom sex has taken place, making it a matter of “honour” for the family.

We need to look at age of marriage, age of consent, rape within marriage and kidnapping in an outer connected manner, recognising the dynamics of societal pressures but always in the context of the right to live a life of dignity and recognising the agency of the woman. In the Delhi HC case, marriage at 15, with the possible consequence of pregnancy, affects a girl child’s right to education, health and well being. It is these considerations rather than religious codes that must prevail when looking at the age of marriage.

Indira Jaising is the Additional Solicitor General of India and the Executive Director of Lawyers Collective.

Featured photo by Ramlath Kavil

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