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RE-DEFINING THE ROLE OF INDIAN
LEGISLATURE IN REGULATING CONSENSUAL SEX BETWEEN MINORS
Anushka
Gupta*
Abstract
The
role of legislator is not simply confined to making laws, but they also play a
significant role in development of society as a whole as they escalate or
attenuate this process of development by the quality of laws they make. The age
of consent laws made by the legislator are one set of laws that are working in
contradiction of the aims and objectives for which they were enacted and are rather
being criticized. The term ‘age of consent’ is itself controversial and it has
been suggested what is created is an ‘age of liability’ for the offender rather
than an age of consent.[1]It
has been argued that ‘age of consent’ is an establishment of age at which the
law of a country decides that a child is allowed to have sexual intercourse and
it has very less to do with consent. Much of the behaviour caught within the
web of Rape of a child between 16-18 years of age involves the cases of
consensual sexual intercourse, thus involving the adolescent youth of the
country who are being prosecuted. This necessitates the need to stop this
never-ending web of accusations against the boys who are being prosecuted for
having sexual intercourse notwithstanding the involvement and consent of the
girl to the fullest. The paper is shared out in four sections. In the first
section, the author delves into the theme of statutory rape law and POCSO Act
to critically analyse its utility in protecting children from consensual sexual
acts. In the second section, the author attempts to examine the legislative
intent behind setting such a higher age of consent from a historical
perspective and brings to the surface a critique of legislative intent and
acts. In the third section, based on a critique of traditional ideology and
dearth in approbation of principles of criminalization, the author explains the
need of decriminalizing consensual sexual acts among adolescents (between 16 to
18 years of age). In fourth section, the author attempts to conclude by quoting
suggestions to frame the best practice paradigm to implementing Statutory Rape
law in Indian Legal System.
Key
word: Age of consent,
Statutory rape laws, consensual sexual act, Sexual autonomy, de-criminalizing.
I.
INTRODUCTION
The age of consent in
India is 18. “Section 375 of
the Indian
Penal Code, 1860 (hereinafter
IPC) states that any sexual intercourse with a girl who is below the age of
18 years is considered to be rape.” Prior to Criminal Law Amendment Act,
2013 the age of consent was 16. The consent of the person is irrelevant.[2]
The offence is one with strict liability, i.e., the defence of presence of
consent or ignorance of the age of victim cannot be availed by the accused.
The age of consent
under Protection of Children from Sexual Offences Act 2012 (hereinafter POCSO), is 18. The Standing
committee constituted by the parliament, in its recommendations suggested increasing
the age of consent from 16 to 18 although the National Commission for
protection of child rights had set the age limit for consensual sex at 16.
Lawmakers took into consideration the recommendations made by the committee and
thereby decided to amend certain provisions of the bill before passing it and
have gone ahead with increasing the age of consent from ‘below 16 to now below
18 years’ and with that, faced a lot of criticism. In doing so, they have failed to consider the present societal trends,
largely influenced by western world wherein the teenage sexual relations are
rising with time. Many psychiatrists and sociologists stress on the fact
that this is important to consider that many youngsters under the age of 18 do
engage in sexual activity.[3]
The chairperson of National Commission for Protection of child Rights, Shanta
Sinha stated that, “there are high chances of the POCSO Act being misused.
Youngsters between 16 to 18 are more likely to enter into sexual relationships.
They could end up being criminalised.”[4]
The higher age of
sexual consent can be subject to criticism on various grounds. Firstly, it seems that increasing the
age to 16 to 18 was a political compromise and not a reasoned decision made by
our law makers. After December 16, 2012 incident, the criminal law amendment
Act, 2013 was brought in effect, which amended this provision under IPC as
well. This gives an impression that the amended provision was merely a reaction
to the incident, not based on any scientific evidence. Secondly, the provision was created to protect minors from sexual
abuse and exploitation by elders, but it leads to exploitation of young boys
also. It doesn’t take prevailing societal actuality into consideration. Thirdly, there are no international
obligations for raising the age of consent, so the justification given by the
lawmakers is absurd and without any merit. As our lawmakers claim 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). But the convention, nowhere stipulates that the age of consent for
sexual activities should be fixed at 18.[5]Fourthly, the lawmakers have come up
with transfer provision under Juvenile Justice Act, 2015 by which a child below
16-18 years can be tried as an adult. The reasoning given by law makers is that
a child between 16 to 18 years of age, develops sufficient maturity to
understand the nature and consequences of his act. But they have desisted from
applying the same understanding while criminalizing consensual sex between
minors. Fifthly, the purpose of the
act i.e., to prevent children from engaging in sexual activity and thereby,
protecting their health from pregnancy and other Sexually transmitted diseases,
remains unfulfilled due to lack of awareness and mandatory reporting
provisions. Therefore, the entire motive of the State for which the provision
has been created is collapsed.
After several raging
debates and deliberations over rape laws in our country, this provision under
POCSO and IPC has faced one of the major criticism and that is, it will give
rise to the number of ‘false cases’ of alleged rape, as all youngsters under
the age of 18 and above 16 engaging in sexual activity are now prone to
harassment by their families, the police and other authorities[6]
such as police exploiting their powers or parents misusing the law to regulate
their children’s sexual behaviour[7]
as there are a lot of instances where parents file false cases against the
sexual partner of their child or sometimes pressurise their daughters to
falsely accuse boys of non-consensual sex where in reality the act was
consensual.
The fact that one-third
of rape cases in India are filed by parents against boys when their daughter
exercises her sexual choice and elopes with him, cannot be ignored.[8]
Lawmakers’ blindness
towards teenage sexual consent is becoming the reason for criminalising young
boys. This provision has therefore, inflamed the discourse over the validity of
rationale behind age consent laws and the harmfulness of adolescent sex.[9]
The age of consent drawn by the lawmakers is an artificially drawn line with no
clear understanding, nor any satisfying justification. They have ignored all
important factors which are required to be taken into account while making such
laws. These include relying on facts such as the age of sexual maturity,
psychology, biological changes, puberty, developmental differences, etc.
As per the Indian
Institute of Population Studies, a detailed report states that out of all the
people who reported to be in pre-marital romantic relationships, 42 per cent of
men and 26 per cent of women have admitted that they engaged in sexual
relationship with their partners under the age of 18.[10]
We live in a society which is being influenced extensively by the western
culture. We cannot overlook the contemporary transformation in the ideology of
adolescents and their curiosities to engage in sexual activity from a very
early age. United States is another example, which has faced such instances
when few states there had increased the age of consent to 18.[11]
Out of all the alleged rape cases, 41 percent were discovered to be false.[12]
There have been
negligible efforts since 2013 to highlight the issue of higher age of consent
in India, with absolute dearth of literature. This difference of opinion and
never-ending battle between the sexual autonomy of adolescents and the higher
age of sexual consent posed by legislature necessitates the exploration of
associated issues to be put forth before the legislature, in an attempt to call
for reformation of the laws towards lowering the age of sexual consent and
acknowledging the need to modernize the thought process of ultra conservative
law makers.
II. TRACING BACK THE HISTORY AND RATIONALE
OF HIGHER AGE OF CONSENT
The concept of ‘age of
consent’ presents a twofold approach; Firstly, it is the legal age, at which
individuals are permitted to engage in sexual activity. Secondly, it is
considered the age at which law assumes those individuals to have attained
sufficient capability of giving genuinely informed consent, with requisite
enlightenment of cognitive and psychological understanding.[13]
In order to redress the
contact between adults and children, the state moves on the fact that a child
is absolutely sexless, neither it has the libido to engage in sexual activity,
nor it has the maturity to consent to any of such acts.[14]
The view taken by the Lawmakers continues one constituent of Victorian
mythology about the innocence and ignorance of the children during childhood,
which stands extremely criticised by the contemporaries.
v IDENTIFICATION OF AGE
OF CONSENT
Consent is ordinarily considered to be a
concept that relates to self-determination.[15]
In context of sex, the age of consent cannot essentially be related to the
capacity of an individual. Since the capacity differs between individuals and
so does the age at which they attain requisite maturity to be capable of making
that decision. Therefore, there’s no straight jacket formula to determine the
age of consent. It has to find its base in various factors that differ from age
to age and person to person. A straight rigid line cannot be drawn differentiating
children and adults in terms of attaining maturity. For example, if age of
consent as per the law of a country is n years.
Then there may be a situation where a person (n-2) may have the capacity to consent and yet another person (n+2) may not.[16]
Competence, capacity, maturity and autonomy don’t appear on a particular date
in a calendar! Minors should also have some say in what they want to do with
their body. With this the whole idea of sexual autonomy is violated. It is
often said that children from age group 16-18 have nearly the same level of
mental capacities. Therefore, it becomes difficult to identify the age of
consent.
v HISTORY OF AGE OF
CONSENT LAWS.
The age consent laws
are as old as the code of Hammurabi, approximately 4000 years.[17]
Ravishing any girl (maiden) who is below the age of twelve years, with or
without her consent[18],
was a crime under the First English Statutory Rape Law in 1275 A.D.
Subsequently, the age was lowered to 10 years by a later statute.[19]
The statute was in the beginning, a splinter of common law which was later
brought to United States. With the advent of Industrialization and due to
urbanization, and the associated incursion of working-class young women in
public spheres, the coalition campaigns were activated. There were fears of sex
trafficking in girls, and sexual services were being offered by the minor
immigrants and other young girls[20],
which had been somehow successful in bringing a change in the State laws.
Subsequently, many
states to safeguard young women of marriageable age from consensual non-marital
sexual intercourse, the age of consent was up stretched as high as eighteen or
twenty-one years, at the turn of twentieth century.[21]
This lead to the inclusion of more and more females into the ‘victim-class’ which
was expanded to include those who are capable of making a judgment and
understanding the nature of the act, due to which several cases and unjust
situations arose where only males were held criminally liable for mutual act.[22]
If protection of
chastity has been one of the reasons for ancient statutory Rape laws then these
laws have often been criticized as it does not provide for any defence of prior
unchastity[23]
nor mistake of female’s age which ultimately leads to enlargement of the
“victim-class”.
During the initiation of the 1970s, a
subsequent outbreak was seen when the feminists started to express against the
Statutory Rape laws saying that these laws were to be blamed for intolerant
gender-based stereotypes, also they controlled and restricted the sexual
autonomy of the young females.[24]
These feminists were the sex-positives[25]
who challenged the ‘sex-negatives’, the radical feminists, as they talked about
pleasure, sexual agents. Thus, 1980s were classified as time of Sex wars.
As perceived by Professor Fran Olsen:
“On one hand, statutory rape laws protect
females, like laws against rape, incest, child molestation, and child marriage,
statutory rape laws are a statement of social disapproval of certain forms of
exploitation. . . . On the other hand,
statutory rape laws restrict the sexual activity of young women and reinforce
the double standard of sexual morality.[26]
The conflict between the protective and
the patriarchal instinct is thus evident from the brief history of statutory
rape laws.
v RATIONALE BEHIND AGE OF
CONSENT
The law mandates that
if the sexual intercourse is a voluntary act, it would still be considered as a
non-consensual act. The purpose of designing the traditional statutory Rape
laws was to prevent non-marital sexual intercourse and to protect young girls
from consensual sexual intercourse.[27]
Special protection to be given to the young females from being sexually
exploited, to prevent loss of chastity, vaginal injury[28]
and possibilities of pregnancy.[29]
Thus, protecting the health of the minor girls was also a part of the said
purpose as minor girls are considered incapable of giving consent for sexual
purposes. They are too immature to know the nature of a sexual act. In order to
accomplish this goal, the State impends males with criminal liability for
participating in sexual intercourse with a young female who is below a
particular age. This proposition lead to twofold discrimination, by shielding
only females and penalizing only males, there was a notion that the harm caused
by non-marital sexual intercourse is only to females and not to males.[30]
This again brings to the surface the patriarchal set up of our society, where a
girl was considered a property belonging to her father before marriage and
thereafter to her husband.
Early Exaltation of the
chastity[31]
of a girl was considered to be the rationale behind giving protection only to
the females. Since a female possesses idiosyncratic bodily physiognomies, these
features make them different from the boys, thus, call upon provisions
providing special protection. But later, the need to protect young male
children from sexual exploitation by adults was also felt, leading to POCSO
Act, 2012 in India).
These laws were
designed with an aim to protect minors from exploitation[32]
but they played a superfluous and relatively different role at the beginning.
These laws manifested an effort to save father’s interest in daughter’s
chastity from any harm.[33]
Under the long prevailing customary dowry practices, chastity was given much
importance. Virginity was the sign of a marriageable girl. A non-virgin
daughter was considered less marriageable and thus, a lifelong financial burden
to her father if she remained unmarried. Women and girls were therefore
considered as “special property needful of special protection.”[34]
This property belonged to their fathers and thus, statutory Rape laws were
brought into force aiming to protect special interest of father in his
property, with this historical legal perception of women.
The predominant
approach was that woman was a property, subject to male control and supervision
and once she losses her virginity and involves herself in sexual intercourse
with another man, she inevitably becomes less desirable to any other man.[35]
Sigmund Freud’s writings on monogamy and marriage influenced the Statutory Rape
laws justifications to be based on “treasure” theory of virginity.[36]
Freud wrote that,
“the demand that the
girl shall bring with her into marriage with one man no memory of sexual
relations with another is after all nothing but a logical consequence of the
exclusive right of possession over a woman which is the essence of monogamy. .
. .”[37]
Thus, virginity was
considered as a treasure of a woman at the mid-century, and the one who took it
away from a woman before her marriage was therefore considered guilty of theft.[38]The
entire historical background of age of consent makes it discernible that the
objective for which the Statutory Rape laws were designed had extremely less to
do with the protection of girls and their vulnerability as humans, but a lot
more with protection of their chastity, as property, which is indeed an
outdated ideology in today’s society as the act must not be criminalized solely
because it is immoral as the idea of morality varies from person to person, as
it true in the sense that what may be moral for one, may not be moral for
another. Thus, the lawmakers should a take a departure from the traditional
ideology to protect women which in reality revolved around chastity and purity,
and they must concentrate on the principles of criminalization in order to
criminalize an act. This aspect has been elaborately dealt with in the next
section of the paper, where author calls for decriminalization of consensual
sex between and with adolescents, arguing that the principles of
criminalization have not been followed by the legislator
v A CRITIQUE OF
LEGISLATIVE INTENT BEHIND HIGHER AGE OF CONSENT
The criminalization of
the Consensual sexual acts amongst adolescents (between 16 to 19 years of age)
has initiated a process whereby the consensual sexual behaviour of the
individuals is transformed into crime, thus, transforming the individual into a
criminal. However, there is a traditional presumption that whenever legislation
is enacted it is done so for maintaining the social order in a society, for the
welfare of the people and for protecting the interest of the society. The laws
are made for the advancement and growth of the society to avoid all the
hindrances and punish the evil doers who disturb the peace of the society.
This
section finds out the glaring loopholes and contradictions within the laws
enacted, by questioning the legislative intent behind criminalization of the
said act. The legislative intent forms a critical factor in focusing attention
on the primary justifications and the grounds quantified by the legislature
thereto.A critical view towards the legislative intent shall be useful to bring
about the loopholes and irrationality in criminalizing consensual sexual
behaviour amongst adolescents. The section is divided
into six parts, with every part highlighting and criticising an act or omission
on the part of legislator.
v DEFILEMENT IDEOLOGY OF
TRADITIONAL ERA
Earlier, if it was
proven that the girl has previously been unchaste, then no liability arose and
accused was exonerated.[39]
Despite the offence being one with strict liability, the law did not provide
for mistake of fact defence, but the conviction could be avoided in cases where
the minor girl was a non-virgin[40],
legalising the sexual intercourse with a non-virgin girl on the notion that the
girl had nothing that could be damaged.[41]
Thus, the protection was forfeited, if the girl had been promiscuous, which
“shows that the purpose of statutory rape law was to protect virginity, rather
than to punish men who coerce sex from young girls.”[42]
The quintessence being that the courts “extended legal protection only to
virgins, and early statutory rape law served as a tool through which to
preserve the common morality rather than to penalize men for violating the
law.”[43]
The point here is not
only to track down the moral and political lineage of laws that regulated
sexuality of young people, but in addition to that the aim is also excerpt the
said ideologies that have continued to persist over a period of time to provide
a palimpsest for the present.
Nevertheless, the
traditional values of chastity have sustained till date to be the powerful
force behind statutory rape laws.[44]
The constitutional challenges to the statutes are often thrown away, bringing
the traditional value of chastity as justifications.[45]
Thus, it is clear that
the existing consensual rape laws are based on prehistoric perceptions of
female chastity and virtue that are inexcusable. Thus, it is time to rethink about the
identity of women and not reduce it to their chastity. Only then we can create
a better world for the ‘victims’ of the consensual sexual intercourse as well
as accused persons.
v HEALTH GOES UNPROTECTED
Another important issue
associated with the higher age of consent is that it is detrimental to the
health of a girl child. Due to mandatory reporting provision, the minor girl
refrains from consulting a doctor under the fear of prosecution of her
consensual partner so they rely on contraceptives as advised by the chemist or
advertised via media and internet, not prescribed by any doctor. This endangers
the life of the minor girl child as in case of pregnancy she is not willing to
report to appropriate authorities which promotes illegal abortions. Thus,
legislator has failed to protect the health of the minor girls.
v AMBIGUITY IN LAWS
ENACTED BY LEGISLATOR
There are certain
ambiguities in the Indian legal system and the system of laws lacks uniformity.
This can be well adjudged by:
a) ‘Inconsistency’
of Statutory rape laws[46]
and POCSO laws purporting higher age of sexual consent, with Exception 2 of
Section 375 IPC that declares, “Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not rape.”
Poignantly, it can be
argued that instead of lowering the age of sexual consent, the Supreme court in
Independent Thought v. Union of India[47]
case has made a marital rape ruling calling it in favour of minors. Justice
Lokur held that, “we are left with absolutely no other option but to harmonize
the system of laws relating to children and require Exception 2 to Section 375
of the IPC to now be meaningfully read as: Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under eighteen years of age, is not
rape. It is only through this reading that the intent of social justice to the
married girl child and the constitutional vision of the framers of our
Constitution can be preserved and protected and perhaps given impetus.”
It is evident with the
recent judgment; the present move of the judiciary does not seem to be
favouring the lower age of consensual sexual act as the present judicial trend
is to increase the bar to as high as eighteen and not to lower the bar.
But inter alia, it can
be contended that just to bring the said provision[48]
in consonance with statutory rape laws and POCSO so as to bring in harmony the
system of laws, the Court has ignored the social reality, and solely relied on
POCSO as the only possible logic could be POCSO or the Convention on Child
rights, which lays down the age of a child to become an adult is 18. It is also
a matter of importance to determine whether the court would have gone ahead to
increase the age of marital exemption given under section 375 exception 2, had
the lower age been provided by the legislator were 16, and not 15 years.
Instead of lowering the age of consent, the
court has increased the age of consensual sex for the minor married females
from fifteen to now eighteen, making it clear that sexual intercourse or sexual
acts[49]
with a married minor female below 18 years of age shall amount to Rape, thus
again widening the scope for prosecution of young boys.
It is indeed necessary
to stop the non-consensual sexual acts with any person, but the Court has
drifted away from its goal of criminalizing only those acts as Rape, which are
non-consensual or which are in anyway forced upon the victim. How do we even
call a consensual sexual act as Rape, when the definition of rape itself says
“to rape someone is to force them to have sex with you.” How fair and
reasonable is it to also criminalize the consensual sexual acts, with the
intention of protecting the victims from non-consensual acts?
Under those
circumstances, the better alternative would be to reduce the age of marriage to
sixteen years, while also reducing the age of sexual consent to sixteen years.
Perhaps this would resolve all the other associated issues and bring harmony in
the system of laws regulating consensual sexual acts. As with many things, it
is undreamt of having a marriage without sexual intimacy between a married
couple as it is unnatural to think of a marriage where sexual intercourse would
not happen.
b) Irrationality
instigated by The Juvenile Justice Act, 2015 and Section 375 IPC sixthly.
Justice RS Sodhi
stated, “We are a civilized nation and if we become barbaric by twisting our
own laws, then the enemy will succeed in destroying our social structure. We
should not allow that but we must condemn this move of sending children to
fight their war.”
The JJ Act, 2015,
replaced the Indian Juvenile delinquency law, Juvenile Justice (Care and
Protection of Children) Act. 2000. The Act of 2015 permits for the transfer of
a juvenile in conflict with law to sessions court to be tried as an adult if
the offender is between sixteen to eighteen years of age and if the crime
committed by the offender is ‘heinous’. It defines ‘heinous offences’ as those
“for which the minimum punishment under the Indian Penal Code or any other law
for the time being in force is imprisonment for seven years or more.” Thus, it
incorporates along with other crimes, Section 375 sixthly, which declares
consensual sexual intercourse with a minor as Rape.
Legally, now there’s a
scope for transfer of offender even in cases of consensual sexual intercourse
to the Court of Session if the board is satisfied of the mental capacity of the
child who is between 16-18 years of age. Though, the probability of that
happening is very low, but the law permits so. It also gives a lot of
discretion to the board members, as there is no hard and fast rule to determine
the mental capacity of child. Consequently, there is a chance with Juvenile
Justice Board that the offenders between the age of 16 to 18 years, for
harmless consensual sexual acts may be tried as adults as the crime will now
not be seen from the vantage point of the victim but from a different one i.e.,
the society at large. In this sense,
extreme injustice is being done to the children who are the youth of our
country. While criminalizing the ‘harmless’ consensual sexual acts between the
minors, the state has not only failed to respect the children’s individual
autonomy of which the sexual autonomy remains a part, but also has failed to
carry out the principles of criminalization. The first and the foremost of the
three tests as propounded by R Antony
Duff, while criminalizing a moral wrongdoing that the law makers must
perform, involes “the conduct to be
criminalized must be wrongful”[50]
After an intensified
form of examination of the entire setting of laws regulating consensual sexual
acts between the minors, beginning from Section 375 sixthly, going through the
marital exemptions for minors and the recent marital ruling of Supreme Court in
‘independent Thought v Union of India’ which appears more to be against minors
and the implications drawn from the reformed Juvenile Justice Act, 2015, the different
set of ways espoused by the legislator to deal with the ‘discourse of
consensual sexual acts’ leaves the addressees in a state of confusion and it
seems the legislator itself is not clear with what shall be the right approach
to deal with such acts. A law must be enacted aiming to remove the
future absurdities, but this type of law would indubitably add more.
III. DE-CRIMINALIZING CONSENSUAL SEX BETWEEN
MINORS
Whenever the Criminal
Law is put into action as an instrument to regulate the sexual behaviour
amongst adolescents, the unpredictable socio-legal worries run into. It turns
out to be a tough task for anyone who endeavours to tackle the issue of
regulating the sexual activity of teenagers while they are growing and are
quite closer to adulthood as at the same time they have the responsibility to
protect them from the potential harmful sexual contact, even though the act in
which they tend to involve themselves is voluntary. This makes our law makers
stumble into a host of other problematic issues which have a propensity to
muddle the subject which is already an arduous one.This section takes us through the various aspects with respect to
criminalization of an act and has been divided into a number of parts each
stating the complications occasioned and thereby highlighting the gaffes and
blunders perpetrated by the legislatures.
There are debates where
Children’s rights advocates seek to vouch for reconsidering of how sexual
activity is regulated.[51]
Numerous objections have been raised by the Criminal Law Commentators against
the criminalization of the consensual sexual activity amongst the teenagers,
solely on the moral grounds. These are viewed in the category of now-obsolete
fornication and adultery offences in many countries.[52]
In contrast, the pragmatic State Legislators are unenthusiastic in repealing
the laws regulating teenage sexual conduct as they believe by doing so, they
will only embolden teenage sexual activity.[53]
v LACK OF CRIMINAL INTENT
IS NOT A DEFENCE
In the advancement of
the criminal law, there had been an advent of a class of crimes where presence
of knowledge or intention is not necessitated anymore. One of the crimes that
exclude the requirement of ‘intent’ is Statutory Rape Crimes. The crime of
Statutory Rape is based on conclusive presumption that a girl child below a
certain age is incapable of giving consent to sexual intercourse.[54]
Such consent will lack legal value and will not be acknowledged in the court of
law. This proposition logically follows that if there had occurred any act of
intercourse, that must have had happened against her will and must constitute
Rape. In such cases, ignorance of victim’s age and lack of criminal intent
makes no defence and the act alone suffices to establish guilt of the accused.
This view and position has been implemented by most of the jurisdictions.
The whole idea behind
disregarding intention as an element in construction of certain criminal
offences, and imposing strict liability, is that it essentially signifies that
harm caused to the victim is so severe in nature that whether or not the actor
intended to cause such injury or harm should remain outside the purview of the
offence. This notion contemplates the intention of the State that all
precautions and preventing measures must be taken by the actor and the act
under any circumstance must not be committed. If committed, the actor would not
be given any further opportunity to defend. While
regulating consensual sex between adolescents, does the intensity of the harm
caused and impact on the victim in actuality so severe that it becomes
inevitable for the law makers to impose Strict Liability on the teenage boy?
The offence is harmless, yet lack of intention has been made irrelevant by the
lawmakers, making it more difficult for teenage boy.
v LEGISLATURE LEGISLATING
MORALITY
The policy
consideration often set forth by the law makers or the courts is that the
nature of the act is immoral that is, malum
in se, which is regarded as sufficient in itself to establish guilt of a
person, regardless of intent.[55]
This contention is away from the dominion of the legal judgments and is that of
moral philosophy and is brimmed with complications and ambiguities.[56]
It might be convincing to argue that the job of the lawmaker is not to
disseminate morality in the society, nor should the interpretation done by the
courts and the judgments given by the judges be entirely based on moral
judgements.[57]
Certain moral offences are legal offences but an offence which is a legal one
is not so, solely because it is per se an immoral one in its entirety.[58]
Secondly,
an act is deemed moral or immoral followed by the intention with which it is
done. Therefore, it shall be in contradiction of the universal consensus of
what marks an act moral or immoral, if it is divorced from the intention of the
actor.[59]
Thus, killing for self-gain is regarded as an immoral act, while to kill
someone in defence is not regarded as an immoral act.[60]
Solely based on the judgment that the act is immoral in itself, imposing strict
liability disregards the concept of ‘guilt’.[61]Thirdly, this is also against the
traditional mandate of the Criminal Law, where an act done with criminal intent
is sufficient to constitute a crime, but under statutory Rape law, an act alone
will suffice to establish guilt of a person.[62]
The kind and the degree of intent present, colours the offence and the also has
an impact on punishment.[63]
Lord Devlin, in his
classic debate with H.L.A. Hart, argued that society is bound together by its
combined and shared morality, and immorality of any conduct in the society
ought to be sufficient to vindicate criminalization of such act. He argues that
sexual immorality is analogous to treason, thus, it must be dealt by the
criminal law in a way, the treason to his understanding, all the victimless
crimes that exemplify immorality must be condemned by the law. He was at odds
with decriminalization of consensual sex in Britain. His theory was based on
‘morality and society’. His standpoint is that if we outlaw consensual sex
crimes, then its outcome wills breakdown the structure of morality in the
society and the society as a result of which, will collapse. On the contrary,
Hart argues that immorality of the conduct in a society is not sufficient to
criminalize such act. There are times, where law and morality often stand in
contradiction.
Thus, immorality of an
act is insufficient to determine whether the act should be criminalized or not
then the harmfulness of the act must be taken into contemplation. Packer argues
that the conduct ought to be not only harmful but also perceived as condemnable
by the community.[64]
It is not reasonable to
regard an act as malum in law in
today’s time, merely because such act was prohibited by some positive system of
law at one time in the history and then the same had been tendered from one
generation to another.[65]A
particular kind of society generates particular forms of social control methods
suitable to itself. In various states under different cultural settings, girls
get married and become mothers at an age between sixteen and eighteen years, or
even lower than that age group. Considering the status quo, it is dubious to
assert that sexual intercourse with a teenage girl who is 16 years and below 18
years of age is an immoral act in itself. On what basis this morality of an act
is decided? Is it a general consensus? Or more significantly is it contemporary
laws in India only where such an act is inherently immoral?
v ABSENCE OF DETERRENT OR
PREVENTIVE VALUE
The entire idea of
criminalizing consensual sexual acts between adolescents (16 to 18 years of
age) is to create a regulatory and preventive impact on children as it declares
a standard which is made known to the people by the law. Criminal law is
envisaged to cause certain impact by stating the ‘liability’ of the person as
to when a person will be ‘liable’. This is the preventive and prescriptive
impact. Though the principal question is to what extent it is efficacious to
impact the behaviour of the people, the deterrent value of the said
criminalised act is yet to be known. This brings us to another significant
issue of Lack of sex education that adds to the increasing number of cases of
sexual acts among adolescents. From time immemorial, our parents and teachers
have always refrained from telling children about Sex, because they consider it
as an act of shame! When education about sex is missing in the school
curriculum, then expecting education about laws regulating sexual acts between
and with children would be quite too much. Hence, the question of deterrent or
preventive value of such crime is amputated. People of our country still live
in this notion that it is against the culture of the country we live in.
v DEARTH IN APPLICATION
OF PRINCIPLES OF CRIMINALIZATION
The contemporary age of
consent law is in contradiction to the principles of criminalization as a law enacted to achieve its purpose must
not be all-encompassing than what is necessary.This brings us to the
question, whether enacting laws regulating consensual sex between adolescents
who are between the age group of 16-18 years is necessary? Hardship and stigma
may be imposed only for the conducts that are in some sense wrongful
and harmful.[66]
The higher age of consent takes in all the consensual sexual acts between two
adolescents who get swayed away by the societal trends largely influenced by
the west, having no real victim and causing no real harm. The idea of wrongfulness, just reminiscent of the
idea of morality may differ from one person to another as what may appear wrong
to one person, may not appear so to another. Thus, there cannot be a uniform
idea of morality and wrongfulness, they cannot stand alone and justify
criminalization of any act, they ought to be accompanied by the
harm principle.
The legislator plays
the most crucial role in weighing the reasons for and against criminalization
of an act. Thus, it obligates the legislator to warrant that the foremost
ethics of Criminal justice have fastidiously and diligently been integrated,
whenever they move to criminalize an act. The utility principle of criminalization[67]
mandates that the justification of the need to criminalize must be given by the
legislator, but in the said case, the need is to have a vision open enough, not
to criminalize consensual sexual act giving due regard to the sexual autonomy
of minors as it is also a matter of principle that legislator should not
establish laws that regulate private behaviour of individuals. Walker takes
issue with ultraconservative politicians and religious leaders who try to
legislate morality.[68]
India is a diverse society, which is why it is easy to find disagreements about
what is good and what is evil. Thus, legislator
must not outlaw something which is not considered evil but also wanted by most
of the people in a diverse society. It has been often criticized by various
liberals and critical thinkers that legislator have criminalized various acts
which are harmless in nature[69]
and not really have a victim, thus, harmless
behaviour should not be criminalized, doing so would be against the
principles of criminalization, but there will be plural voices and
disagreements about what is harmful and what is harmless, which is again where
the legislator plays a crucial role either by pushing away the vague notions of
morality and filtering out only the harmful acts and keeping aside the harmless
acts or by weighing morality more than the harm caused by an act, thus,
criminalizing immoral yet harmless acts. The age of consent laws while
regulating consensual sex between adolescents prosecute the offenders for
causing no harm to victim as the said act is harmless. Thus, the
criminalization has been done without satisfying the harm principle. As
argued by John Stuart Mill,
“that the harm
principle plays an important role in the society. the power of the government
being used on citizens either to protect them in terms of physical or moral is
lacking warrant. This is because others might see it as a right or wise thing
to do.”[70]
Hamish Stewart has also
argued that “people have a right to exercise any conduct if it is consented.”
This brings us to
another principle of criminalization, the
principle of autonomy which can also be associated with the principle of self-determination. Everyone
has a right to live a life as he/she pleases as long as he/she is not impinging
upon the rights of another person and are not causing any harm. Criminal law
must be brought in only when one person’s practice of autonomy interferes with
another person’s autonomy. In the present case, the criminal Law would
interfere and affect many adolescents who want to live the way they prefer. The
autonomy of an individual must only be restricted if the act causes harm to the
society, in such a case, a prohibition can be said to valid. But the
age of consent laws, violates the principle of autonomy of an individual who
has not attained the age bar set by the legislature of state. As the
legislature does not in any circumstance acknowledge minor’s bodily autonomy,
their sexual autonomy.
Essentially, there is
need to de-criminalize the consensual sexual acts between adolescents as the
said laws do not follow the principle of wrongfulness, the harm principle, the
autonomy principle or the principle of self-determination and the utility
principle.
VI. CONCLUSION AND SUGGESTIONS
Reformations in the
Indian Criminal justice system are much needed. The culture of ignorance of
external influences associated with an act by the legislators while drafting
and enacting legislations, needs alteration. Albeit it is easy to say. Much
challenging and difficult to achieve- or even to define. The section comprises of suggestions proposing amendments in the age of
consent laws and conclusion drawn upon the fact that the attention of the
legislator should be on justice and not on winning at any cost to achieve its
short term political goals. It must be noted that the governments may come
and go but the citizens being governed and regulated form the soul of the
country and will always be the ones at the receiving end.
v CONCLUSION
Journalist Laura Berman’s
quote is paramount in expressing teenage sexuality: “whether we like it or not, sexual desire is part of being a teen.”[71]Even
though the Indian culture continues to preserve and value purity and innocence
of a girl and chastity of childhood. However, there is a shift in these values
as today the contemporaries do not aim to reduce the identity of women to her
chastity and purity. The goal of a legal system must only be to protect women
and girls from forced and non-consensual sexual intercourse instead of
restraining their individual sexual autonomy by criminalising consensual sexual
acts among adolescents and adults, without providing any exceptions. As
emphasized by Noraval Morris and Gordon
Hawkins[72]
“we have too much of Criminal Law and
this is a very bad thing. The focus and aim of the criminal law must only be to
prevent harm to others and when it strays beyond this remit, into the areas of
morality and social welfare, it exceeds its defined limits at the cost of
neglecting its primary function, which results in gross injustice and wasteful
spending.”[73]
There is a dynamic
shift from the traditional values that our contemporary society and the coming
generations are embracing but evidently the shift has not been welcomed by
Indian law makers and judges, which is why the judges are reluctant to strike
down laws which are no longer appreciated by the contemporaries of our society.
There are questions and disagreements against the laws restricting the privacy
rights of gays (the issue of section 377).
These laws were drafted a century ago and the cultural, social and the
mental drift since then has not been appreciated by the conservative judges and
the law makers till date. The exclusive right of a man on her wife similar to
that of a right over a property is still endured and can be clearly observed by
Adultery law we have in The Indian Penal Code. If these disagreements and the
plural voices will go unheard by the judiciary and the legislator, then why do
we call ourselves democratic in spirit?
It is therefore
desirable to lower the age bar to sixteen years to allow adolescents to engage
in sexual acts without being prosecuted. As penalising the said act is not
likely to cause deterrence, nor will it prevent the future incidences from
occurring. The acrimonious reality of
the contemporary world is that sexual acts do occur between minors and will
continue to occur. No law can prevent them, but only thing the law can do to
these mischievous children is to prosecute them.
As stated by Michelle Oberman:
Because
for Adolescents, it is somewhat experimental in nature to engage in sexual
intercourse, it becomes significant to acknowledge that mistakes will occur.[74]
It a “learning curve”.[75]
And where in cases it is evident that the conduct of the teenage boy and the
girl is the result of that learning curve, then it seems totally unjustified to
title the teenage boy as a criminal offender, where in reality the sexual act
was consensual, uncoerced. But the contemporary Rape laws continue to label it
as ‘Rape’.
Thus, it implies that
POCSO Act aimed at strengthening the legal provisions for the protection of the
children from sexual abuse and exploitation and their empowerment.[76]
But with the introduction of such provisions, the law enforcement agencies
would subject children to harassment. Therefore, it is somehow implicit that
such a situation would fail the entire motive of the State for which the POCSO
Act was enacted and amendment of the provisions concerning the offence of Rape
was brought under IPC as the same would form the reason for teenage unjust
harassment. Thus, there is a need for an amendment to reduce the age for
consensual sex. Considering the ongoing situation, in order to favour the child
rights and ascent the contemporary laws in consonance with the International
trend, it turns out to be significant that the age should be retained back to
16 (pre-existing) to remove the absurdity in the provision and to ensure that
the lawmakers achieve their goals while respecting sexual autonomy of the
adolescents. Legislators should frame only such laws that aim at eliminating
prospective difficulties rather than creating new ones. In the light of the
same, as quoted by Professor Conrad’s[77]
“a law which can effectively deal with
absurdities in future is the best law.” Therefore, “It’s the time to abandon the myth of age of consent and the reduce the
threshold of legal sex.”[78]
v SUGGESTIONS
To do good to the bad
done, the country needs to undertake a widespread, perpetual reconsideration,
and thereby undergo a course embroiling correction of their morality laws under
the guidance of critical thinkers, researchers, academicians and comparatists
to set a standard that may uniformly be followed by majority of the states and
is best conforming to the interest of the adolescents. (a)Criminal Law must not be associated with Morality.“Criminal law and criminalization are
instruments of political institutions. Although philosophical theorist of
criminal law has often discussed the problems of punishment, criminal liability
and criminalization as if they are problems of moral philosophy, but they are
essential related to the state affairs. The criminal law is a political
institution, part of the state and must address us as citizens- members of a
polity. A theory of criminalization must therefore include or depend on
political theory of the state and society and not merely on moral values.
It must be a theory of the role that criminal law should play within a
particular kind of polity.”[79]
(b)There
is a need to Expand Minors’ sexual rights. On one side of
the coin is the state, and the laws prosecuting the minor offenders and on the
other side are the consenting minors, whose privacy and sexual rights have not
been recognized, rather being constrained.
Thus, tailoring of the legislations by the State is essential so as to
advance their desired objectives of prevention of sexual exploitation of the
most vulnerable minors. The best way perhaps would be to narrowly tailor the
laws to bring them in conformity with the requirements of the society that
require stricter laws for the younger children who are more vulnerable to
sexual abuse than the older children, as the needs of different aged children
are different.[80]
The best law concerning the interest of the minors while preserving their
sexual autonomy and society’s notions of maturity would be to applaud and
incorporate Romeo and Juliet exemptions. (c)There
is a need for Exemption Clauses. The lawmakers should incorporate a
provision of ‘close in age’
exemptions as adopted by different jurisdictions, wherein consensual sex with ‘no greater age difference’ is not
penalised.[81]
The main accomplishment of this exemption is that it differentiates the child
perpetrators from those involving in consensual sexual activities. It is
important to protect the interest of the children while maintaining their
autonomy. “It is desirable to have a
legislation that aims at striking an equilibrium between the need to punish the
perpetrators of child sexual offences and preserving the sexual autonomy of the
children.”[82](d)Need to work on sex education
as the contemporary scenario of sex knowledge among adolescents is
unquestionably deficient. In a situation where we have terrible consequences of
not possessing knowledge about the laws hanging like a sword just above their
heads regulating their sexuality, there is utmost need to educate them about
the changes their body undergo, its consequences along with development of
sexual urges and the laws that have been structured so broadly, encompassing
all forms of sexual acts including consensual sexual acts between adolescents
as well. Thus, there is a need for identification of certain important aspects
relating to teenage sexuality such as: (i) along with the steps initiated by
the state there is a need for community support for such programmes intending
to create ‘self-discipline and abstinence’ among adolescents towards sexual
acts, (ii) to establish effective learning methodologies confining to not only
sex education but also about the laws for the time being in force regulating
their sexuality.
This may work as an
alternative to the criminal law which at present is of no deterrent value for
these unaware children.
Thus, the findings and
the evidences in the paper very well support the premise that (a) the lawmakers must stop the culture of
overlooking societal aspects influencing or encouraging teenage sexuality, and
thereby, reduce the age of sexual consent from eighteen to pre-existing
sixteen, (b) the conservative legislator ought to stop legislating morality,
which affects a class of population, just because other part of population
finds it necessary for outdated reasons of preserving chastity of a women,
thus, all principles of criminalization must be followed while criminalizing an
act, (c) the lawmakers must learn by adopting comparative methodology to
incorporate close-in-age exceptions and holding a liberal view showing
deference towards the sexual autonomy of adolescents, (d) the lawmakers must
come up with effective guidelines mandating incorporation of sex education and
age of consent laws as a separate chapter in school curriculum holding some
weightage in examination for making sure that the chapter is being taken up and
taught by the teachers in the school effectually.
****************************
* Research Associate at
Legal Pedia journal, Studied LL.M. from National Law University, Delhi.
[1] Kieran Walsh, ‘Images of Childhood, Adolescent Sexual
Reality and the Age of Consent’ in Helen Gavin and Jacquelyn Bent, Sex, Drugs
and Rock & Roll: Psychological, Legal and Cultural Examinations of Sex and
Sexuality (Inter-Disciplinary Press 2010) 47-58, 48.
[2]
Kaushiki,Law prohibiting sexual
offences against children sparks controversy over age of consent, The PRS
blog, June 13 2012, available at http://www.prsindia.org/theprsblog/?p=1680, Last visited on November 22, 2017.
[3]
Sharmishtha Das, Age No Bar, The
Telegraph (Jun. 6, 2012),
http;//www.telegraphindia.com/1120606/jsp/opinion/story_15575183.jsp, last
visited on Nov. 22, 2017.
[4]
Id.
[5] SamyakSibasish, The
Issue of ‘Age of Consent’ in The Protection of Children from Sexual Offences
Act, 2012(December 27, 2012), Journal of Indian Law and Society,
https://jilsblognujs.wordpress.com/2012/12/27/the-issue-of-age-of-consent-in-the-protection-of-children-from-sexual-offences-act-2012/,
last visited on Nov. 22, 2017.
[6]
Id.
[7]
Id.
[8]
Id.
[9]
Id.
[10] John Coggon and Jose
Miola, ‘Autonomy, Liberty and Medical
Decision-making’ (2011) 70 Cambridge Law Journal 523-547, 524.
[12]
Id.
[13] Richard Green, Sexual Science and the Law. Cambridge, MA:
Harvard University Press, 1992, p. 141.
[14] Beatrice Faust, Child
Sexuality and Age of Consent Laws: The Netherlands Model, 5 Australasian
Gay & Lesbian L.J. 78, 85 (1995).
[15] In the context of
medical law, see, for example, the much-quoted statement from Cardozo J in Schloendorff v New York State Hospital
(1914) 105 NE 92 that ‘every human being of adult years and sound mind has a
right to determine what shall be done with his own body; and a surgeon who
performs an operation without his patient’s consent, commits an assault’ 93.
[16] Alan Reed, et
al. Consent: Domestic and Comparative Perspective, (Routledge,
November 2016)
[17] C. Edwards, The
Hammurabi Code 46, 51 (1971).
[18] Statute of
Westminster I, 1275, 3 Edw. 1, c. 13 (1 Statutes at Large 83). Under the Original
Statute, “the king prohibiteth that none do ravish, nor take away by force, any
Maiden within Age.” The term “within age” has been interpreted to set the age
of consent at 12: “Here it shall be taken for her age of consent, that is 12
years old, for that is her age of consent to marriage. . . .” I E. Coke, The
Second Part Of The Institutes Of Laws Of England 181 (1817) (reprinting
Statutes in full with annotations). For further discussion of early English
Statutory Rape Laws, see S. Brownmiller, Against Our
Will 29-30 (1975); Levine, A more Than Ordinary case of “Rape”, 13 and 14 Elizabeth I, 7 AM. J. Legal Hist. 159, 162-63 (1963).
[19] 18 Eliz. c. 7 (1576).
[20] Carolyn E. Cocca, Tailbait: The Politics of Statutory Rape Laws in the United States 9-28
(2004).
[21] It has been noted by
one commentator that society is caught in a contradiction in the attempt to
regulate the heterosexual behaviour of the females of marriageable age because
the culture encourages the development of the sexual behaviour but strives to
prevent non-marital sexual intercourse: “we tread on the accelerator and the
brake simultaneously; this may result in desired speed but it is rough on the
mechanism.” KenseyInsititute For Sex Research, Sex Offenders 108 (1965), cited
in Myers, Reasonable
Mistake of Age: A Needed Defense to Statutory Rape, 64 MICH. L. REV. 105,
130 (1965). See also, M. Oberman, "Gender Issues and the Criminal Law:
Turning Girls Into Women: Reevaluating Modern Statutory Rape Law," Northwestern
School of Law Journal of Criminal Law and Criminology, 85:15-87, 1994.
[22]See
e.g., People
v Caldwell, 255 Cal. App. 2d 229, 63 Cal. Rptr. 63 (1967). The “victim” in this
case was married but separated from her husband during three months in which
she met defendant and started dating him. The defendant was warned by the mother of the victim that her daughter “was
15 years old and that she was ‘San Quentin quail.’” Since he had been advised
of her age, he could not claim the defense of mistake of age, though she said,
“she was 18 going on 19, and wore a wig, stockings and eye makeup and looked
like an adult woman.” The defendant contended that the protection of the
married minor is outside the purpose of statutory rape to a minor who is
recognised as mature, citing CAL. CIV. CODE § 204 (terminating parental
authority on marriage of a child) and Kamper v Waldon 17 Cal. 2d 718, 112 P.2d
I (1941) (parent is relieved of support duty on marriage of the child). The
court denied this contention on the ground that “the legislature has deemed
married minors as immature for certain purposes” including capacity to consent
to non-marital sexual intercourse. 255
Cal. App 2d at 230, 63 Cal Rptr. At 64. The issue had previously been decided
in a similar case People v Courtney, 180 Cal. App. 2d 61, 4 Cal. Rptr. 274
(1960) (the fact that a previously married female under 18 may consent to a
second marriage without parental consent does not mean that she can consent to
illicit sexual intercourse so that this behaviour is taken out of the statutory
Rape provision of the Penal Code). The juxtaposition of these two cases raises
the question unnoticed by the court, of whether the purpose of the statutory
rape was actually the prevention of immoral intercourse with young sexually
mature females rather than prevention of victimization of immaturity.
[23]See
Note,
Statutory Rape:
Previous Chaste Character in Florida, 13 U. FLA. L. REV. 201, 2013-14
(1960) (“States refusing to accept chastity as an issue in this crime
overlook the maturity and fault of some young women. . . Conviction of one who
steals the flower of innocence, however, certainly appeals more to the
conception of justice than conviction of one who lies with youthful
temptress.”)
[24]See
Michelle
Oberman, Turning Girls Into Women:
Re-Evaluating Modern Statutory Rape Laws, 85 J. Crim. L. & Criminology
15 at 28-29 (1994).
[25] As Rosalind Dixon
helpfully summarizes sex-positive feminism:
Sex-positive
feminists challenge the premises of dominance feminism. They argue that while
sex might in some cases be a source of danger for women, it is also a
potentially important site of pleasure, fulfillment, and even power. In this
sense, they share the approach of other "partial agency" feminist
theorists, who emphasize the possibilities for, rather than simply constraints
on, female agency.
Rosalind Dixon,
Feminist Disagreement (Comparatively) Recast, 31 Harv. J.L. & GENDER 277,
282 (2008)
[26]Frances Olsen, Statutory Rape: A Feminist Critique of
Rights Analysis, 63 TEX. L. REV. 387, 401-02.
[27] The purpose of the
statutory rape law is to prohibit a girl, while passing through the years of
adolescence, from voluntary becoming the author of her own shame, and set her
apart from the lusts of men.” Parsons v Parker, 160 Va. 810, 813-814 170 S.E.
1,2 (1993). Accord, People v Hernandez,
61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (1964); Holton v State, 28 Fla.
303, 9 So. 716 (1891).
[28] Since Statutory rape
involves consensual sexual intercourse, the danger of vaginal injury only
exists in cases involving immature young girls. The American law Institute set
the age of consent at 10. MODEL PENAL CODE § 213.1 (Proposed Official Draft
1962), on the theory that sexual intercourse begins to lose its abnormality and
physical danger when the victim is over ten years of age.
[30]
Id.
[31]
See, e.g., Watson
v. Taylor 35 Okla. 768, 774, 131 P. 922, 925 (1913), where the court stated,
“The Statute in effect says that chastity is such a precious jewel in the crown
of maidenly graces that it cannot be stolen or removed therefrom, even with the
consent of the wearer, without offending the majesty of the law.”
[32] Michelle Oberman, Regulating Consensual Sex with Minors:
Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703 (2000).
[33]
Supra note
31.
[34]
See James
McCollum, Constitutional Law—Statutory
Rape—Gender-Based Classification Regarding Statutory Rape Law Is Not Violative
of the Equal Protection Clause of Fourteenth Amendment, Michael M. v.
Superior Court, 25 How. L.J 341, 355 (1982).
[35]
Id.
[36]
Id.
[37] Sigmud Freud,
Collected Papers 217 (1925).
[38] `See James A. Durham, Forcible
and Statutory Rape: An Exploration of the Operation and Objectives of the
Consent Standard, 62 Yale. L. J. 55, 76 (1952).
[39] Carolyn E. Cocca, Tailbait: The Politics Of Statutory Rape
Laws In The United States 9-28 (2004).
[40] Kelly C. Connerton, The Resurgence of the Marital Rape
Exemption: The Victimization of Teens by their Statutory Rapists, 61 ALB.
L. REV. 237, 254 (1997).
[41]Id
at
253. (promiscuity defence and
ownership theory of women, damaged property doesn’t require protection
notwithstanding the age fell below the age of consent.)
[42]SeeShoshanna Ehrlich, You
Can Steal Her Virginity But Not Her Doll: The Nineteenth Century Campaign To Raise
the Legal Age of Sexual Consent, 15 Cardozo J.L. & Gender 229 (2009).
[43]Supra
note
32. (asserting that the purpose of enacting age of consent laws was to protect
the innocence of the women and her chastity (purity) before she gets married.)
[44]Jordan Franklin, Where Art Thou, Privacy: Expanding Privacy
Rights of Minors in Regard to Consensual Sex: Statutory Rape Laws and the Need
for a Romeo and Juliet Exception in Illinois, 46 J. Marshall L. Rev. 309
(2012).
[45]Kelly C. Connerton, The Resurgence of the Marital Rape
Exemption: The Victimization of Teens by their Statutory Rapists, 61 ALB.
L. REV. 237, 255 (1997) (arguing that exceptions like marital exemptions
reflect women oppression.)
[46] Section 375 sixthly, IPC, declares a sexual act committed, with or without consent, with a girl
below eighteen years of age.
[47] W.P. (c) No. 382 of
2013).
[48] Section 375 exception
2, IPC.
[49] As stated under
section 375 IPC.
[50] Towards a Modest Legal Moralism, (2012).
Criminal Law and Philosophy, Vol. 8, 2013.
[51]Roger
J.R. Levesque, Adolescents. Sex And The
Law 60-72, 232-35 (2000); also, Rhonda Gay Hartman, Adolescent Autonomy: Clarifying
an Ageless Conundrum, 51 Hastings L.J. 1265 (2000).
[52]Joel
Feinberg, Harmless Wrongdoing
318-24(1988). See also Bernard E.
Harcourt, The Collapse of the Harm
Principle, 90 J. Crim. L. & Criminology 109 (1999).
[54] Indian Penal Code,
section 375.
[56]
Id.
[57]
Id.
[58]
Holmes, Early Forms of Liablility, in
The Common Law 33 (Howe ed. 1963) ; 2 Stephan, History Of The Criminal Law Of
England 94, 95 (1883) : Actus
non facitrerum nisi mens sit rea. . is frequently though ignorantly supposed to
mean that there cannot be such a thing as legal guilt where there is no moral
guilt, which is obviously untrue, as there is always a possibility of conflict
between law and morals.” See also, Clark
And Marshall, Crimes 81-86 (6th ed. 1958)
[59]
Id. “Even
a dog distinguishes between being stumbled over and being kicked.” Intention is
seen as demanding premeditation and therefore maximum culpability.
[60]
Supra note
61.
[61]
Id.
[62]
Id.
[63] Clark And Marshall,
Crimes 57 (6th ed. 1958); Hall, General
Principles Of Criminal Law 310, 316 (2d ed. 1960).
[64] Robinson and Darley's
'Utility of Desert' offers empirical support for Packer's philosophical
arguments on this point.
[65] Hall, General
Pronciples Of Law 341 (2d ed. 1960)
[66]Id.
[67]Id.
[68] Dennis Hoffman, Criminal Justice, Houghton Miffin
Harcourt, p. 50 (2000)
[69]Id.
p. 49
[70] Mill, John Stuart. On Liberty. London: Longman, Roberts
& Green, 1869. www,bartleby.com/130/.
[71] Laura Berman, True Love and Teenage Hormones Won't Wait,
CHI. SUN-TIMES, Dec. 24, 2007, at 30.
[72] Robinson, P.,The Structure and Limits of Criminal Law,
London: Routledge, Chapter 8, ‘The
Overreach of Criminal Law, 2014.’
[73]
Id.
[74] Frances Olsen, Statutory Rape: A Feminist Critique of
Rights Analysis, 63 TEX. L. REV. 387, 401-02.
[75]
Id
[76] The Protection of
Children from Sexual Offences Act, 2012, Ministry of women and Child
Development PRESS INFORMATION BUREAU,
GOVT. OF INDIA (22 May, 2012),
http://pib.nic.in/newsite/erelease.aspx?relid=84409.
[77] Professor Dietrich
Conrad, formerly head of the law department, South Asia Institute of the
University of Heidelberg, Germany, Lecture at the Law Faculty of the Banaras
Hindu University: “Implied Limitations of
Amending Power” (1965)
[78]William Saletan, Rethinking the age of Sexual Consent, Sept.
27, 2007, available at http://www.slate.com/articles/health_and_science/2007/09/the_mindbooty_problem.html,
last visited on 26 Nov. 2017.
[79] R A Duff, Lindsay
Farmer, S E Marshall, Massimo Renzo & Victor Tadros, Criminalization: The Political Morality of the Criminal Law, OUP Oxford, 2011.
[80] Tamar R. Birckhead, The "Youngest Profession":
Consent, Autonomy, and Prostituted Children, 88 WASH. U. L. REV. 1055, 1096
(2011).
[81] Singh C and Pranjal P
and Arora S, 'The Protection of Children
from the Sexual Offences Act, 2012: A Critique of the Decision to Raise the Age
of Consent for Sexual Relations.' 3(2) J Indian L & Soc'y 286 (2012).
[82]
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