ABSTRACT
This research paper examines adolescent relationships and legality of sexual relations arising out of them under POCSO act and international child protection laws emphasizing the criminalization of consensual relationships. This paper further understands how different countries perceive and regulate adolescent relationship and the influence of cultural factors on legal framework while also examining its complications. This study aims to provide global approaches and potential legal reforms that balance child protection with adolescent autonomy.
KEYWORDS
Adolescent relationship, POCSO, Child protection laws, age of consent, UNCRC
INTRODUCTION
As a human being develops from being a child to becoming an adult, his human rights develop alongside his own growth and development. According to POCSO, A child is defined as any person below the age of 18 years. Laws governing a juvenile and an adult deal differently with their respective cases. But what is missed out in this law making is a critical analysis of developmental stages of a human being’s life. According to WHO, Adolescence is a phase of life between childhood and adulthood ranging from 10 to 19 years This stage unfolds new physical, psychological, sexual progression leading individuals to explore emotional connections. During this period, many adolescents form romantic bonds, some of which may involve intimacy. However, laws governing consent vary globally, and not all legal system recognize adolescent relationships and they are often classified as punishable offenses under child protection laws. This raises concerns about the balance between protection and autonomy, as strict laws may unintentionally criminalize consensual adolescent relationships. A thorough study of legal framework and their implications is essential to address these complexities.
RESEARCH METHODOLOGY
This study is based on a combination of primary and the secondary resources of research methodologies. Primary sources are POCSO, UNCRC, reports along with other international child protection laws. Secondary sources comprise of research papers, news articles, journal articles, legal blogs that gives deep insights for the study.
METHOD
Child protection laws play a significant role in creating a safe environment for children in the society. It is important to ensure that no child is exposed to sexual exploitation or abuse under peer pressure, coercion or any undue influence. International conventions like UNCRC, create a fundamental framework for countries to develop and implement legal mechanisms to safeguard children. Article 4 imposes an obligation on countries to bring such legal framework that emphasizes on child-centric approach and works in the best interest of the child.
In India, POCSO plays a significant role in addressing the offenses committed against children. Under this act, any sexual act performed with a child whether consensual or not, constitutes to be a punishable offence. This section is and has been absolutely important for protecting vulnerable children and has ensured justice in various cases. However changing lifestyle and evolving circumstances of adolescents aged 15 to 18 often go unrecognized.
Adolescence is an inevitable phase of every human being’s life which introduces him to a new dimension of personal and social development. It is a part of their human rights to choose their actions and decisions that align with their personal beliefs and autonomy. The phase of teenage years involves them being engaged into romantic relationships and sexual developments. Rather than dismissing the reality of these relations, it is required to shift the focus on providing knowledge on sexual health, consent and create an opportunity to them for making informed decisions in order to avoid unwanted consequences. Adolescent relationships are not much accepted or encouraged in India. More than a legal wrong, it is a moral wrong in our country. The perspective to view these relationships lies deep down in the traditions and values that are upheld by each country. However, the increasing influence of globalization has led countries to develop their child protection laws regarding adolescent relationships.
Internationally the minimum age to give consent in sexual acts differs majorly from 14 to 18 years. Nevertheless, in some countries it is as low as 11 years and in some it extends high up to 21 years showcasing wide differences in cultural perspectives on adolescent autonomy. In all the cases, it is important to provide comprehensive sex education to adolescents to allow them to make informed decisions. The diverse cultures around the world, deal with adolescent relationships differently therefore it is necessary to compare major child protection laws globally with POCSO to understand the distinct challenges faced by each country and explore potential areas of development. A comparative study with relevant international laws will be done under each of the following heads:
- Age of consent and statutory rape
- Close-in-age exception
- Cultural and societal norms
- Complications in implication
- AGE OF CONSENT AND STATUTORY RAPE
Adolescents are often unknown about the legal implications of their consensual intimate relations therefore it is crucial to understand more about age of consent. Age of Consent is the minimum age required to have the ability to give consent. In legal framework, it is essential to define age of consent as it creates a clear differentiating line between a sexual relation as an offense or as a consensual act.
For consent to be valid, it has to be free and spontaneous. However under the concept of statutory rape laws, consent holds no relevance. Any sexual acts committed on a person below the valid age of consent determined by the respective laws of the country, amounts to the commission of statutory rape. Statutory rape is any sexual intercourse with an individual aged less than the age of consent, with or without consent. Statutory rape completely disregards the concept of consent and strictly assesses every case based on the age of involved individuals.
Age of consent is matter of debate India because it involves legal, social and cultural considerations while balancing the interests of minor child and evolving societal norms. According to POCSO, valid age of consent is 18 years, therefore any sexual activity involving a person below this age amounts to statutory rape in India. It is presumed that the child involved in the act is unaware of the consequences arising out of the act and hence is not considered capable of consenting to such acts. Earlier till 2012, appropriate age to consent was 16 years but after enactment of POCSO it was raised to 18 years to protect children from sexual exploitation and to abide by the international standards set by UNCRC which requires states to provide special protection.
A recent study showed that 85.7% females involved in sexual activities were aware of the situation and had consented to the act.In last few years, it is observed by various high courts in their pronouncements that adolescent romantic relations must be recognized leading the National Law Commission to prepare a report to address the issue in hand. This report offers critical analysis of adolescent relationships and their evolving nature, proposing ways to address them in a mature and adolescent-friendly manner. Further discussion of this report will follow in the research paper ahead. `
In countries like Canada, even though close-in-age exemptions exist, rules regarding statutory rape are stringent in nature. Any person who engages in sexual acts with an intent to sexually exploit the young person and who is in position of trust, authority or dependency over the young person, is said to commit an offense of sexual exploitation. Several western developed countries like Canada, USA, Australia recognize and accept adolescent relationships while upholding strict statutory laws.
Whereas in developed countries like United Kingdom, close-age-exemptions are not formally validated under their legislations. While deciding the cases relating to the issue, they consider mutual consent as well as the age gap between the engaging individuals to determine whether the act done was an act of exploitation or an act of consent.
Surpassing these are the laws of Japan, The Penal Code of Japan. Till 2023, the valid age of consent in Japan was 13 years, which had the lowest age of consent among other developed countries. The core reason behind such low age of consent was culture in the country. However, it is observed that countries like Japan which are known to be one of the most developed countries, are still lacking behind in cases of protection from sexual exploitation. After various national movements in Japan, the country finally in June 2023 passed a parliamentary bill that raised the valid age of consent to be 16 years of age. It also elaborated the scope of rape and also created clear grounds to determine consent and other related concepts. Close-in-age exemptions were recognized and were further applied while dealing with adolescent relationships.
- CLOSE-IN-AGE EXEMPTIONS
While studying international laws related to protection of children in case of adolescent relationships, it is highly required to know the close-in-age exemption. Also known as the Romeo and Juliet clause which is an accepted legal provision.
In simple sense, close-in-age exemption is legal provision by which peers and adolescents are protected from getting prosecuted for consensual sexual activity which otherwise amounts to sexual offense. The parties consenting to the sexual acts are close in age gap but usually below the valid age of consent.
For example, in Canada if the complainant is aged 12 years, the accused must be 2 years or less older and if the complainant is aged 15 years, the accused must be 5 years or less older then them in order to not commit an offense of statutory rape. Any sexual activity involving one minor child amounts to statutory rape, however Romeo-julient clause creates a favoring on the adolescent’s side in order to prevent criminalization of consensual romantic act.
Close-in-age exemptions are implemented by many developed countries like USA, Japan, Australia etc. in the same manner as Canada. These countries noticed a need for protection of rights of an adolescent and allow the adolescent to take accountability of their actions and creates a safe space for adolescent.
- CULTURAL AND SOCIETAL NORMS
Culture and social structures of society shape the laws of the country. The core reason why laws differ so much globally is because the differences in cultures, values and beliefs of each country. Adolescent relationships may or may not be acceptable in all countries around the world and the way to deal with it is absolutely not the same either.
Country like India creates a cultural bar that rigidly disowns the concept of premarital sexual relationships. It is against the societal norms to engage in sexual activity in adolescent relationships due to the conservative approach of looking at sexuality and adolescence. Indian cultural values and beliefs completely disregard the concept of adolescent relationships hence the stringent laws criminalizing the pleasure acts of exploration.
Similar to India, Japan is also a quite conservative country. Open discussions about sexuality are often avoided leading to lack of sex education further amounting to unwanted pregnancies, sexually transmitted diseases etc. Reality of Adolescent relationships are not well studied creating a dilemma of developing country with traditionally reserved mindset.
Contrary to these societal norms are the western countries like USA, Australia, Canada etc. that socially accept the presence of adolescent relationships. Even though these laws are in the best interest of the child, the countries still face challenges such as early pregnancies, abortions and sexual exploitation.
Whether or not adolescent relationships are recognized by the cultures, they must be legally regulated correctly to prioritize child’s wellbeing.
- COMPLICATIONS IN IMPLICATION
Precise implication of an established law is very important to fulfill its purpose and objective. While numerous laws exist, not all deliver justice. Some create unnecessary complications and confusion for the judiciary to interpret wisely. Few complications are as follows:-
- Unrecognized adolescent relationships
It appears in almost all international laws that an adolescent’s rights are not legally determined. Various legislations define a young person or an adult, but the phase where this young person becomes sane enough to his own decisions like an adult is the phase that needs to be improvised and studied in detail. The sexual development must be recognized and not criminalized.
In India, since adolescent relationships are not socially validated, it is often seen that the girl child’s family and relatives try to misuse POCSO. It is observed that several of the cases reported under POCSO end up being romantic relationships, contradicted or opposed by girl child’s family where the girl has eloped from her house to live with her partner. As soon as the girls is eloped, a case od sexual assault is filed against the boy child creating an entire situation of exploitation of the POCSO act.
- Close-in-age exemption & actual consent
It cannot be presumed that because the individuals are close in age gap, it is not necessary that the sexual act done was absolutely consensual in nature. The intent while committing such act is of exploitation or of romantic nature must be critically analyzed while dealing with such matters.
- Inconsistency between age of consent and age of marriage
The age of consent for sexual activities is different from the age of marriage in nearly all the nations. In India, though marital rape is not recognized under law it is not dealt in a way of protection either highlighting a significant gap in the laws. Although the age of consent is 18 years, husband cannot be prosecuted for sexual assault if his wife is over 15 years of age. This actually legalizes sexual exploitation of minor girls. As a result, the girl may be subjected to repeated sexual assault within marriage without any legal protection. In contrast, if the same girl aged 15 years, engages in sexual activity willingly and consensually, it will be still be considered as a statutory rape and the man can be charged. This creates a major inconsistency that not only overlooks the reality of adolescent relationships but also leaves a married young women vulnerable to sexual abuse without providing her any legal aid.
Similar laws are seen across Pakistan, Bangladesh, Afghanistan, Saudi Arabia, Nigeria etc. Many of these countries are under developing countries and have legal enforcement mechanisms that are outdated and inconsistently enforced, leading to inadequate protection of minors in case of sexual abuse and rape.
REVIEW OF LITERATURE
Child protection laws, particularly those concerning adolescent relationships have been widely studies through legal, sociological and psychological perspectives. The existing legal framework provides insights into international framework, national legislations and judicial interpretation etc.
United Nations Convention on the Rights of the Child (UNCRC)
The UNCRC acts as a global framework for the protection of children, determining their basic rights and outlining the necessary measures for their protection from abuse and exploitation. Additionally, UNCRC sets forth the minimum requirements for each country to help them formulate protective legislations for children in consideration. Children are guaranteed the right to express their opinions in all matters affecting them.
Article 14 defines a child’s right to freedom of thought, conscience reinforcing that the adolescent should be given an opportunity to develop their own beliefs and values realating to relationships and sexuality. Article 15 affirms the right of the child to association which extends and includes romantic relationships. Their privacy, family, home etc in under protection under the purview of article 16 where it is said that there will be no unlawful or arbitrary involvement in enforcing their right to personal dignity.
283rd Report on Age of Consent under the Protection of Children From Sexual Offenses Act,2012.
The most important literature for India as it examines the complexities of adolescent relationships within the ambit of child protection laws. It describes how legal systems vary globally in their approach to balancing child protection ad adolescent autonomy. The report includes how age of consent laws differ across countries, with some criminalizing all sexual activities involved with the minors while other offers study of exceptional cases to differentiate between exploitative and consensual relationships. The influence of cultural and social standards are also considered observing how conservative nations provide stringent laws whereas the western nations offer flexible laws.
The Report also assesses judicial challenges, particularly criminalization of consensual adolescents relationships and the unintended consequences of strict statutory laws. The role of comprehensive sex education and the need to identify legal reforms
The review concludes by underscoring the legal, social, and cultural disparities in the treatment of adolescent relationships, emphasizing the need for a more nuanced approach that protects minors while recognizing their evolving autonomy.When one of the parties is an adult, then guided judicial discretion can be allowed to address the same, when warranted.
However, in light of the existing ground realities, if the age-difference between the victim child and the accused is less than three years, the Commission is of the considered view that introduction of judicial discretion in the matter of sentencing can help alleviate the plight of those truly aggrieved.
Judicial interpretation
- Delhi High court;
In one of the recent judgement dated 30/01/2025 pronounced by Justice Jasmeet Singh upholding the acquittal of the accused of POCSO engaged in romantic relationship with the prosecutrix said that,
“Love is a fundamental human experience and adolescents have the right to form emotional connections. The law should evolve to acknowledge and respect these relationships, as long as they are consensual and free from coercion. ”
- Allahabad High Court :
In another recent judgement of a criminal bail application dated 03/07/2024 pronounced by Justice Krishnan Pahal granting bail to the accused of POCSO who is also husband of the victim and father of their child born after they eloped and got married said that,
“This court has every now and then expressed concern regarding the application of the Protection of Children from Sexual Offences (POCSO) Act on adolescents. While the Act’s primary objective is to protect children under the age of majority (18) from sexual exploitation, there are cases where it has been misused, particularly in consensual romantic relationships between teenage persons”.
SUGGESTIONS
Regulating adolescent relationships requires a fair approach that safeguards interests of minors while protecting them from sexual exploitation. Government bodies and the Judiciary has different yet connected roles that will require them to model from other international laws in order to ensure balanced legal framework for protection of minors.
- Measures by Government
The Law Commission of India’s 283rd report has put forth a crucial recommendation by introducing guided judicial discretion. Unlike the current law, which compulses minimum sentence to be given in all cases, the court can have the authority to reduce the sentences based on specific factors like age of adolescence, relationship or intention to coerce etc.
Government has also issued youth schemes like Rashtriya Kishor Swasthya Karyakram to inculcate sexual knowledge in adolescents. The program was launched in 2014 by the Ministry of Health and Family Welfare to match to the Comprehensive sex education provided in Australia and Netherlands.
- Measures by Judiciary
Judiciary has maintained a very careful and thorough approach to these matters, ensuring each case is correctly assessed without wrongfully penalizing innocent individuals.
Judiciary has provided a wide range of cases under POCSO that has critically acquitted the accused based on the presence of romantic relationship.
CONCLUSION
The research highlights the conflict between protecting children and respecting adolescent autonomy in laws like India’s POCSO act and global models like UNCRC. Because POCSO criminalizes all sexual activities involving a person below 18 its strict application tends to punish consensual adolescent relationships, for which it is misused and has unforeseen effects.
Internationally, nations such as USA and Canada implement close-in-age exemptions and prioritize comprehensive sex education, providing a well-balanced solution. India stands to get benefitted by the suggested legal reforms like judicial discretion, comprehensive sex education programs etc. to address adolescent relationships effectively while safeguarding minors from sexual abuse. A balanced and adaptable legal framework is essential to ensure protection while recognizing the evolving rights of adolescents.
BY
AMRUTA K NANDOSKAR
SCHOOL OF LAW, UNIVERSITY OF MUMBAI