Features: Magazine | Literary Review | Life | Metro Plus | Open Page | Education Plus | Book Review | Business | SciTech | Friday Review | Young World | Property Plus | Quest | Folio |

WOMEN AND THE LAW

Age of discretion

CHITRA NARAYAN

Is the law of statutory rape adequate? An analysis

The Delhi High Court recently ruled that a girl above the age of fifteen had reached the "age of discretion" and her marriage of choice will be valid and enforceable. This judgment, passed in the context of the law of Hindu marriage and "runaway marriages", is controversial and raises several issues, an important one being the conclusion on the "age of discretion" among girls to understand and consent to lifetime choices, including their ability to consent to sexual activity.

The criminal law in India, viz., the IPC, defines sexual intercourse with girls below sixteen years as Statutory Rape. This concept of Statutory Rape makes sexual intercourse with a girl below a statutorily defined age, a rape, despite the fact that the girl may have agreed to engage in the sexual activity. For girls below twelve years, the law provides a more stringent punishment, without reference to consent in such a context.

For far too long we have refused to acknowledge the existence and extent of child sexual abuse around us, but there has been an acknowledged need to incorporate statutory rape, to meet a variety of factors. These include a perception on the age of sexuality of young persons, and a perception that persons (girls in India) below a particular age are incapable of understanding sexual activity or assessing its implications. Hence the law seeks to protect these young persons from sexual activity by criminalising it. The person who engages in the sexual activity can be punished even if the girl admits to have voluntarily had sex with him.

Why is such a concept or law needed? This is a very difficult question to answer.

A crime

The law has the effect of making what is apparently a consensual activity, a crime. Perceptions vary amongst us on when a person is old enough to understand and voluntarily experience sexual activity. However, it cannot be disputed that persons of a very young age would not properly be able to exercise their discretion in contexts of sexual activity, or even have adequate knowledge of it. These are also contexts where a young girl could be taken advantage of or misled, either by older men, or by persons in positions of trust with these girls.

However, what cannot be denied is the moralistic purpose behind these provisions in India. This is evident from the fact that the offence is limited to sexual intercourse, and does not address other forms of sexual activity. This is due to the focus on the preservation of the chastity and virginity of the girl concerned. The law covers only girls below sixteen, though boys of all ages are also subject to sexual abuse by older persons. Even here, it is important to recognise that the law makes a distinction in this age of discretion, which is reduced to fifteen years, when the sexual activity is with a person to whom the girl is married.

The law of statutory rape also does not address the issue of abuse or exploitation, which are critical issues that need to be addressed. Laws in certain other countries address these issues by rejecting a uniform approach to statutory rape. This is done by identifying certain factors, which together would constitute statutory rape, or determine the seriousness of the offence. These are the identification of a range of sexual assaults, the difference or closeness in the ages of the perpetrator and that of the young person, the relationship between the perpetrator and the young person and any position of dominance that the perpetrator had over the young person. The age of the young person who can understand and fully consent to sexual intercourse is also considered, but is not the sole criterion to determine statutory rape.

Unfortunately in India, the law on child sexual abuse is grossly inadequate. Much work needs to be done to revise our existing laws on sexual assault and their effectiveness. This is the beginning from which statutory rape should be understood and addressed.

chitra.narayan@gmail.com

Printer friendly page  
Send this article to Friends by E-Mail