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The Controversial Consent

As crazy as it sounds, in Indian society consent is decided not by the will of individuals but by their age. That’s how deeply flawed our rape laws are. Two minors having a physical relationship is no more a big deal in our society. With progressive ideas flowing in from the west we can also see our youth getting influenced into doing things which might not involve mature decision making.

While the constitution of India upholds individual freedom, it is not absolute. Minors can willingly sign up for physical acts or intercourse but still be tagged as being raped or rapists legally.

The Bombay Court in February 2021 said that “The consent given by a minor is not considered to be a valid consent in the eyes of law.” This has two sides to be looked at. One is consent must be a deciding factor of the possibility of rape/sexual abuse. When you say the word rape then it naturally means that it had no consent- which is not the case for minors who willingly and consensually have an intercourse or any sexual act. So why not respect the consent of these minors who are willingly with complete responsibility signing up for the act along with the physical consequences of it? The second perspective says that these children are not equipped to take that decision. It rightly says that people at this age are not aware and mature enough to take decisions on their own- be it having an intercourse with their partner who also is a minor or consenting to do the same.

The law is specifically designed from the second perspective in place. And this is not just limited to India. Even the USA has a law which states that engaging in sexual behaviors with someone under the age of consent is illegal and will be treated as criminal sexual conduct.

The brain of a kid does not equate to the brain of an adult, let alone the age and experiences. Same goes with teens because teenage is a very tricky time. It is the time when everything in the body and mind is evolving. There are conflicts with everything they see or hear and they are not just learning but also making wrong judgments. A teen might feel that he is right and mature all the time but that might or might not be the case. Nevertheless, teens too are not equipped to make decisions on having sexual conduct with his/her partner.

It is always the adult’s responsibility to set boundaries with children and underage teens. Sometimes people justify their sexual activity with children by saying the child “wanted” to or the child touched them first. They may misread a child’s affection as sexual. At this time a child obviously does not have an idea of what’s a wrong touch or a bad touch. But it should be taught by the elders that what is a good touch and what is a bad touch so that the child can recognize the same and speak to the elders about it. The accused might say “Age is just a number” or “They look and act older so it’s okay.” If someone you know is unclear about boundaries with children, remind them of their responsibility to set boundaries and the potentially high consequences to them if they don’t.

Now let’s get to the case when this argument becomes controversial and rather void. What happens when two underage minors have an intercourse with consent but the girl gets pregnant even after taking preventive steps? The boy in this case is charged with criminal sexual misconduct and sometimes with rape.

India has progressive abortions laws when compared with USA but we are all hushed on teenage pregnancy. The stigma and lack of awareness is maddening. If a female is pregnant and she is a minor, then as per the law of Medical Termination of Pregnancy, a minor pregnant will need the consent from her legal guardian to be able to get under the knife. While the age of a consenting female has been raised to 18, the law has not been revised in case of a married minor girl.

There is no law that protects the boy from being held as a rapist with a punishment of 7-10 years if he is a major and juvenile detention if he is a minor. Many teenagers are having intercourse these days. It has become very common but the dearth of awareness leads to the worst situations. Our rape laws need to be reformed keeping in mind this nuance. The adults, the judiciary, the society in general, and the kids too are responsible for having a healthy conversation which can educate them on the do’s and don'ts of sexual conduct. Turning a blind eye to this matter and later wrongly accusing people of having consensual conduct is the product of a toxic education environment in the country.

(Adv Vedika Chaubey can be contacted on vedikachaubey@gmail.com)