A 15y.o. Survivor Can’t ‘Give Consent’ To An Older Man, So How Can A Court Of Law Hold Her Responsible?!

Saying that a 15-year-old survivor was aware of the impact of her actions, clearly reeks of victim shaming, while substantially diluting the onus of the accused. Is it not time POCSO cases were dealt with sensitivity?

A few years ago, a fellow advocate narrated to me a case she had come across in the courtroom that day.

A man in his 30’s had been accused of abduction and sexual harassment of a 14-year-old minor girl. As soon as she said, “I hope this guy is awarded a stringent sentence under the POCSO Act”, a couple of others present in the room immediately countered her saying “How do you know the girl didn’t go away with him wilfully. Girls these days are very smart, she might be acting innocent to save herself.”

When I read about the Madhya Pradesh High Court’s observation yesterday stating, “It cannot be said that even though she may be 15 years of age, she was not capable of knowing the full impact of her actions” in a case of a similar nature to the one described above, I was left deeply sad and angered, but not shocked. It has been almost 5-6 years since the above incident, but when a court makes an observation reeking of victim-blaming, it is evident that not much has improved.

A minor cannot legally, ‘give consent’

The father of a 15-year-old minor girl in November 2018 complained to the police about her being missing. In the course of the investigation of the complaint, the girl was traced to be in the custody of the accused. She had also given birth to a baby boy who was 1.5 years of age when she was traced by the police.

The girl, in her statement had said that she was taken by the accused to Surat on a false pretext and promise. She further stated that upon reaching there the accused had developed a physical relationship with her.

At the bail hearing of the accused, the counsel for the accused stated that the minor had gone away with the accused of her own free will, and that the girl had “walked away from her father’s protection knowing fully well what she was doing.”

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The court observed, “it cannot be said that even though she may be 15 years of age, she was not capable of knowing the full impact of her act,” also stating “she had gone voluntarily out on her own will and continued to live with the applicant and has also given birth to a child”. Bail was granted to the accused upon furnishing a personal bond of Rs.1,00,000/- as surety.

The law overlooked in the quest for victim shaming

The verdict in the present case is yet to be delivered, so I will refrain from commenting in any manner on the case, which could lead to influencing public opinion. But the observation of the court that since the minor girl went with the accused, stayed with him, and birthed a child she was aware and a willing participant, is extremely problematic, and deserves to be called out.

The Criminal Law Amendment Act, 2013 increased the age of consent from 16 years to 18 years. So, if the court says that it is wilful consent if the minor lived with the accused and birthed a child, doesn’t this violate the provision of law? Is the consent of the minor girl valid in the present case? Does the accused not become liable for rape in the present case? Why is a vital legal provision being overlooked to perpetuate victim shaming?

Did the minor girl actually make an informed decision?

“Children these days mature way too fast.” This is one line we hear way too often around us almost every day.

There is no denying the fact that youngsters of the present generation have a lot more exposure compared to the previous generations, thanks to the internet and the spurt in technology. But this does not automatically mean that these youngsters, especially in their teens, are mature enough to analyze and understand and foresee the consequences of every decision that they make.

Like in the present case, could it have been very difficult to convince a gullible 15-year-old? Would her decision to accompany the accused then have been a free-willed consent and an informed decision? Sadly no; it is an influenced decision.

How her parents too are responsible

I can almost see a crowd of people shouting out: “She was a 15 year old who understood that she was disobeying her parents, so did she not realise that it was wrong to run away from home and her parents?”

It is this sense of obedience that is forced on youngsters that often results in a rebellious decision, often disastrous, by them. Rather than encouraging discussions and strengthening channels of communication, most parents in our country still insist on unquestioned obedience from their children. Under such circumstances, would a child not want to break away from the caged existence?

The court’s statement in the present case leaves a lot to be desired. I wonder if the survivor’s background and the family environment were looked into? Was an effort made to understand the survivor’s mental framework, on why she took the particular decision rather than subject her to victim shaming? Isn’t sensitivity the need of the hour, rather than moral policing?

The biggest fear such a problematic observation by the court brings to my mind is would this not strengthen the resolve of men on the lookout for young girls to victimize and abuse? Wouldn’t they become brazen, defeating the very purpose of enacting the Protection of Children from Sexual Offences Act, 2012?

Image source: Anemone123 on Pixabay

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