THE ISSUE OF ‘AGE OF CONSENT’ IN THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
It has always been a societal aim to regulate inappropriate sexual contact with children. An interesting issue at the centre of this social action is the age of consent, i.e. the age at which the law should allow children to engage in sexual acts. Age of consent laws form a legislative latency period, sexuality held in abeyance until the specified age is reached. The emphasis of such laws is on setting a barrier to sexual conduct with children of a specific age. Fundamental to these age specific laws is the idea of consent. Consent “is an act in which one person alters the normative relations in which others stand with respect to what they may do,” that is, their rights, duties, obligations, privileges and the like. Consent is a balanced act of reason, accompanied with deliberation, to assent to what is done or proposed to be done by another. It is a voluntary agreement freely given by a rational and sober person able to form a reasonable opinion upon the matter to which he or she consents. It is generally thought that it as morally and legally permissible to engage in sexual relations if the parties consent to do so. But that is not the case with minors. The very rational behind age of consent laws is that minors are incapable of giving consent, let alone it being a valid one.
In India, until recently the age of consent to sexual relation was 16, but amid much controversy and debate, the newly passed Prohibition of Children from Sexual Offences act, 2012 has increased it to 18 years. According to the legislation all individuals under the age of 18 are ‘children’ and engaging in sexual activity with such individuals is a punishable offence. This new legislation has reignited the debate over the validity of rational behind age consent laws and the harmfulness of adolescent sex. Is it true that minors are incapable of giving consent?
The mental capacities required for competent consent are always a function of the subject of consent. A person’s competence should be evaluated by reference to the mental capacities that are relevant to that decision and there is no reason to think that the relevant mental capacities of many minors are lower than the mental capacities of adults whom we regard as capable of giving morally transformative consent. Minors should have some say in what they do with their own bodies. They should be free to decide, as a matter of right, whether or not they want a sexual relationship. Even the British law accepts that older children have a developing competence to make autonomous decisions and that autonomy and competence doesn’t just appear on a given date in calendar. But the legislators in India have failed to realize that mental maturity and ability to consent is a continuous evolution process which starts right from the onset of puberty and reaches a near constant basic level in the age group of 16-18; we don’t flick our sexual switch to 'on' at 18; zoom from 0-60 on our eighteenth birthday and that individuals between the age group of 16-18 have nearly the same level of mental capacities. Equally faulty is the claim by the legislators that the recommendation to make consent "irrelevant" up to the age of 18 was in consonance with the United Nations Convention On The Rights Of The Child (UNCRC). For, nowhere does the UNCRC stipulate that the age of consent for sexual activities should be fixed at 18. This is borne out by the fact that an overwhelming majority of the countries, including advanced democracies, have adopted an age of consent that is below 18. The act in question takes no account of teenagers' real lives and ignores people's sexual development. In a social environment where teenagers are becoming increasingly aware about sexuality the act can have terrible consequences. It will criminalize hundreds of thousands of young people for...
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