Age, Sex, Consent

Age_of_Consent_eu1

Replugging this old article with my views on the lack of recognition of distinctions between sex and crime in actions of governments and judiciary in the wake of yet another instance of a court going on record calling it wrong to punish statutory rape if the 15 year old girl voluntarily eloped with the accused, conveniently ignoring that this was not about kids engaging in consensual sex, but abduction as well. This is hardly an isolated instance and basically reflects complete breakdown of protective mechanisms against luring children into sexual relationships.

Recently, Brazil went on a spree for cleaning its reputation for sex tourism as a prelude to being spanking clean for the 2014 World Cup. In 2011, their government identified 2,169 websites with women in sensual poses or promoting sex with children and demanded a clean up. about 1,100 or so have cleaned up their act so far, and more are expected to. What I found worrisome is that the government seemed to find sex with adults and sex with children about the same. The reason why selling sex with children is illegal because they are considered incapable of making these choices and their exploitation is assumed (based on known prevalence) – which is of course the case with most children engaging in commercial sex. Equating it with an adult woman making her choices is an insult to both. An adult woman’s rights to decide for herself need to be respected, just as it is important to prevent exploitation of children. They are entirely different things.

An old post by Indian Homemaker got recirculated for Child Sexual Abuse Awareness month, where she describes a court case that demonstrates the bizarre condition of our courts. A 15 year old girl eloped with a 22 year old man willingly. Her family filed a case against him for rape (the consent of a person under 16 years is not considered valid in Indian courts and it is automatically without consent, and thus rape), but later consented to the marriage. The court held the man guilty of kidnapping, but acquitted him of rape. Here is where it gets blurry. In India, child marriage is a crime, but another law holds that a man having sex with a 15 year old *wife* is not committing rape, even though she is not of the age of consent. In any case, while the families may later have agreed to the marriage, it was abundantly clear that when they had sex, they weren’t.

Just for contrast, a High Court court in Rajasthan not only upheld the kidnapping of a married woman from her husband’s home, but also put several restrictions on a well established tradition of marriage. The woman was 18. They were married. The family forcefully took her back and the court allowed it.

Indian Homemaker was rightfully indignant “I didn’t understand this judgement. Isn’t the girl a minor?”

I think our laws for children are not very well thought out. Here are some thoughts:

Age of consent

Age of consent in India is at 16 years old. All sex under this age is criminal, which is a rather impractical way of managing biology with legislation. The age of puberty is decreasing. Sexual freedom is increasing. Many, many children have boyfriends and girlfriends and have sex with them as a natural part of being human and growing into their sexuality. Criminalizing this is counterproductive to a healthy psychology around sex.

At the same time, it is important to see that children are not seduced into consent and thus exploited. This needs deliberation. A possibility may lie in age restrictions within a few years of their age.

I agree with the judge, that if the girl was willing, then it cannot be rape, even if she was under 16. But I have another big problem. That is with the marriage. While sex is a biological fact, marriage is a social norm and a contract. If the age of consent is 16 years and the minimum age of marriage to be 18 years (which is also the internationally recommended minimum age of marriage), then I think it makes the girl considerably unsafe for that marriage to be allowed to stand. The reason is that it opens the way for seducing minor girls and getting away with it if a complaint is made by offering marriage and pointing out or using some social pressure about being shamed to get agreement. In my view, this is exceedingly risky for a girl who cannot legally make any decisions for herself. And precedents like this WILL have lawyers recommending pedophiles to offer marriage rather than fight a losing case in court. That is what lawyers get paid for – to look for holes for their clients to slip through.

They had consensual sex. Ok, fine. However, to be married, the girl was under age, and that should be upheld by courts. They can continue to have their relationship or not; sex or not; which is between them (and likely their families), but they should be allowed to get married when they are of an age to get married.

I think the problem here is that governments care little for the rights of women or children and sex and marriage have been so thoroughly joined, or that the rights of women and children are carelessly clubbed together, that few are able to see distinct meanings. Which is how these things happen – a country engaging in sex tourism including child sex tourism bans all sex from websites, not just child sex. A child who has had sex with an adult gets abandoned by the legal system because he married her.

There is little nuance. There is little examination of implications for those to be protected. If an exploiter of children can marry one if he gets caught, what does it mean for the child to live in a home where she was accepted as an alternative to prison and where she was already sexually exploited? Particularly, when legally she doesn’t even have full rights on her bank account, she can’t drive, she can’t walk out, hire a lawyer, make her own purchases or even buy her own phone? And our laws actually give the husband legal guardianship of the wife in such a situation – that is plain kinky. Either you are guardian, or husband. She may not be sexually exploited either, but there is a reason that the minimum age of marriage is not the age of puberty. It allows for the development of the girl – physically and mentally. It raises the minimum age of having children, which is an important health consideration as well as one for population control.

And there is a big need. Child marriages are big in India. 5% of all male and 30% of all females in India marry between 15 and 19 years. For every 1000 girls between 15 and 19 years of age, there are 45 who have kids. These are UNICEF statistics (2000-2010). The reality is far less sterile. Last year Bhaira Ram blew the whistle on a cousin marrying an underage daughter and got excommunicated by his village panchayat. An appeal to CM Ghelot got the mandatory “feel good” directive for the district administration to look into the matter, but nothing actually happened. Villagers agree he was wronged, but don’t dare go against the panchayat. His children are alienated in school, and he is planning to leave his village and seek a life elsewhere. What is the kicker? The child marriage he alerted about still happened.

In a time like this, in social conditions like this, governments, judiciaries have a special responsibility to set standards based on ethics and rights, even if they go against the grain of popular traditions. That is how change happens, not by accommodating traditions we want to end. Not for vote banks, not for resistance. If institutions like the government and judiciary cannot challenge existing ills, then we might as well stop expecting the common man to destroy his life fighting them, no?

In that case, instead of a permanent seat in the UN, we should apply for a permanent seat in the bottom of human rights lists. We want to be a world power, then we MUST bring our human rights to world ideals. Or we are yet another bad example.

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Vidyut
Vidyut is a blogger on issues of National interest. Staunch advocate of rights, learning and freedoms. @Vidyut

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