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Madras High Court recently ruled on amending POSCO to consider consensual sexual relations between a girl 16 yrs and above and a boy not more than 5 years older. But is it enough?
In a recent decision, the Madras High Court made some important observations pertaining to the Protection of Children from Sexual Offences Act (POCSO). In its decision, the court recommended amending POCSO in order to exclude the consideration of consensual sexual relations between a girl of 16 years and above, and a boy who is not more than five years older to her, as sexual assault. This means that consensual sexual relations in which a girl aged 16 years and above, with a boy who is a minimum of five years older to her, falls outside the ambit of sexual assault.
POCSO, as it currently stands, does not distinguish between sexual assault and consensual sexual relations between teenagers. This has been misused in many situations where underage couples elope to get married, and the disgruntled parents of the young women in such cases incriminate the boy under the provisions of POCSO. As a result of this gap in the legislative framework, according to the Tamil Nadu Commission for Protection of Child Rights, minor rape victims are not being prioritized in the system, and that the misuse of the law is disadvantageous to one side.
This decision of the Madras High Court was delivered in an elopement case. Even as the court recognized teenage sexuality and acknowledged the conceptual framework of agency, there are certain areas of concern that this judgment brings to mind. I am, of course, open to correction, engagement, and learning, and recognize that my views may – in some parts – be reactionary rather than responsive.
For starters, the decision of the court to offer a blanket determination of such cases as non-sexual assault is a bit disconcerting. It is important to acknowledge that a majority of instances of child sexual abuse and teenage sexual abuse go unreported, and, oftentimes because the perpetrator is known to the child or teen in question. In most such situations, abusers and perpetrators are largely adept at grooming their targets – particularly to the point that they elicit a “yes.” Saying yes need not necessarily originate from a place of free, fully informed, and uncoerced decision making. Grooming operates covertly, discreetly, and rather manipulatively. In a day and age where grown adults who have the capacity to consent fully and freely face gaslighting, it is hard to take a vehemently singular stand that a child or teen cannot be subject to such manipulation. Rather than to offer a one-size-fits-all provision, it’s important to recognize the need for context. It is important to acknowledge that maturity is not a function of one’s biological age
Assuming that context is given credence in an amendment, the second concern this judgment raises is in the wording of one of the key observations of the court, wherein it acknowledged that a relationship between a girl under 18 years and a boy of a similar age bracket is “the result of mutual innocence and biological attraction” and that such a relationship cannot be thought of as being “unnatural or alien between opposite sexes.” In acknowledging a one-sided assessment couched in binaries of sex, gender, and sexual attraction, the court has completely ignored non-heteronormative teen sexualities and gender identities. It is important to acknowledge that teenagers may come to recognize their sexual orientations, while some may be in an exploratory space. Attraction and innocence is not a monopoly of the heterosexual.
Drawing from the heteronormativity is a third concern. The court acknowledged specifically that cases where the “boy is not more than five years older to the girl,” consensual sexual relations between such a boy and girl would not be sexual assault. Within this explicit recognition, there lies an implicit derecognition of reversed dynamics where a boy might be younger than the girl. This also almost automatically also fails to recognize that sexual abuse can be perpetrated by individuals of any sex, gender, and sexual orientation.
At its very root, a decision seeking to set a legal framework to govern, address, and penalize sexual abuse must fundamentally begin from an understanding of the nature of the crime itself. Sexual assault is a difficult crime to prove, and a difficult crime to articulate for a survivor given the social sanction and taboos in place. Adult survivors face shame and silencing – and it can be doubly difficult for a child to come up with their stories. Consent represents blurry lines – especially when, for example, Bollywood has raised more men to believe that no means yes, and that such rhetoric can be cleverly used to manipulate a victim into “consenting.”
It is undoubtedly vital to sharpen a knife until it functions appropriately. We just need to be careful not to make it cut both ways.
Image source: a still from the movie Dhadak.
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