Who benefits from criminalizing consensual teenage sex?

Who benefits from denying sex education to citizens, finding excuses for forced sex but criminalizing consensual teenage sex?

 

NEW DELHI: The Union Cabinet on Thursday cleared a Bill that seeks to raise the age of legal sex from 16 to 18, provoking sharp criticism from child rights activists, who called it a regressive step.

The Protection of Children against Sexual Offences Bill, 2011, says sex under the age of 18 – even if consensual – would be deemed as statutory rape and an offence that would be tried under the Juvenile Justice Act carrying a maximum punishment of three years imprisonment.

Regressive bill on legal age for sex gets Cabinet nod.

1.

I think the bill is an attempt to protect teenagers from child abuse. I have blogged about a 15 year old whose family was harassed by the police. The family suspected that the teenager had been ‘kidnapped’ by a male relative. The police insisted that the victim ‘looked’ more than 15 because then she would no longer be seen as a ‘minor’ (below the age of consent) and then ‘statuary rape‘ (sex with minor) could be seen as ‘consensual sex’. Under this new rule, the police would find it difficult to shirk their responsibility, because even if the victim was not 15, she would still be seen as below the age of consent, and they would be required to take action.

2.

So it could benefit teenagers who have been abused by older men – unless that teenager is married to the rapist. I think any sex with a teenager less than 18 should be treated as a crime – but only if the partner is more than three years older than the woman. Even if she is married to the rapist.

I have met women who have been married very young and suffered in such marriages and they all wish (but some feel helpless) to protect their daughters from similar fates. [When life ends at twelve]

3.

But this bill also sees two sixteen year olds having sex as a crime. While most parents would rather their kids did not have sex until they were married to the partner or were atleast adults, would they want the government to have the power to punish their teenage children for having consensual sex with someone around their own age, a class mate, a friend, basically two young people?

Should the parents then lose the power to say, “police had no business punishing youngsters who were within the confines of four walls. What the police did in fact amounted to violation of their privacy” [Link: Obscene behavior]

Many parents might feel that their child would never do that, but premarital and teenage sex is more common than most Indians seem to realise. I blogged about how much more children know about sex than parents realise here – and how parents have often no idea about it.

So if these children were too scared to say anything to their parents, if they were given no sex education and no information and guidance, and if they do end up having sex – should they be seen as criminals? When they are not old enough to have a driving license, drink or vote, when they are not old enough to be given sex education – they can be seen as old enough to be jailed for a consensual sexual activity?

4.

And who would benefit the most.

It would become easier for Indian police and sexual offenders to harass unmarried, young couples‘Five drunken young men from a nearby farming village accosted a couple…, beating the young man and gang-raping the woman.’ 

We will see more cases like Constable Sunil More who “threatened to book them for indecent acts and demanded Rs 5,000. While the boy was sent off to arrange the money, Sunil More allegedly raped the girl.

If these couples try to report they would not only face social stigma, they would also be accused of committing the crime of having consensual sex.

Some educational institutions will find more reasons to keep teenagers under surveillance.

Neighborhood gossips will not just be gossiping, they will have the power to report a crime or blackmail a teenager, sometimes into submitting to sexual abuse.

Edited to add: Such cases would become more common but the victims would not dare to report – because now they would be seen as criminals.

Price of a kiss goodbye: Rs 1,200 and police harassment

Kuber Sarup hugged, pecked a girl on the cheek while saying bye. Outraged by his ‘indecent act’, cops dragged him to police station, forced him to pay up (a lecture on Indian values was free)

“The cops then gave me two options: I could either pay the deposit and appear in court the next day, or spend the night in the lock-up and be produced at court the next day,” he said. “Not wanting to spend the night behind bars, I had no option but to cough up the amount.”

‘We have footage!’

The argument took an interesting turn when the cops told Sarup that they had CCTV footage to prove that he had outraged public modesty. Sarup’s response, however, threw them off guard. Relieved that the footage could help him prove his innocence, Sarup asked to be shown the footage. Cops did a quick U-turn, saying that he was an ordinary citizen who was not privy to such confidential footage.

Please do click to read the details.

Related Posts:

Emotion of love and affection compelled the convict. ‘Love not a crime’, says Delhi Court.
The Powers of the Protectors.
“Bill seeks to let 12 year olds have non penetrative sex. Does it really?
It’s child abuse not an ‘affair’.
Parents should choose the boy for a girl aged below 21, as it is they who bear the brunt of an unsuccessful marriage – Karnataka HC
Romanticizing innocence, chastity and related taboos for women.
Sexual abuse victim thrown out of school for being a bad influence on other students.
Pregnant at fifteen? No moral issues. Unmarried and pregnant at fifteen. Degeneration of society.
Sex Eduction has nothing to do with blue films.

33 thoughts on “Who benefits from criminalizing consensual teenage sex?

  1. Here’s a point of view I agree with.

    http://articles.timesofindia.indiatimes.com/2012-04-30/india/31506390_1_sexual-offences-consent-penetrative
    Times View

    As TOI has maintained raising the age for legal sex from 16 to 18 is a bad idea. Only a clutch of illiberal countries have it as 18 years. Why should India join that club? The age for legal sex should stay at 16. Further, where the age gap between two partners is less than five years, consensual sex should be decriminalized even if a partner is a teenager less than 16-years-old. There can be some deterrents if the age gap is higher. The proposal to hike the legal age for sex also smacks for an urban bias. In villages, getting married before the age of 18 is common. Would they all be treated as criminals now? Educating people about the advantages of a later marriage is one thing, but making teen sex illegal ignores the reality and criminalizes innocents. There is also the risk that such a move could lead to a spurt in young girls going to quacks for abortions to escape the clutches of the law. Suicides and honour killings too might rise with this ill-thought-out measure.

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  2. It will be just as useless at preventing teenage pregnancy and protecting children as the 25 years age bar on drinking is for preventing alcoholism. Our administrators seem to think that just by making it criminal to do something, people will stop doing it.

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  3. Having different rules for similarily-aged couples makes a lot of sense. The situation when two 16-year-olds decide to have sex with oneanother is quite distinct from the situation when a 25-year-old decides to have sex with a 16-year-old.

    Here the age of consent is 16 – but there is no punishment for younger people if they are similar in age or development. This means a 16-year-old who has sex with a 15-year-old would face no punishment while a 20-year-old who do the same thing would face charges.

    I don’t like “statutory rape” laws. Call it something else ! Rape is using force or threaths to have sex with someone. Call it “sex with a minor”, which is the honest term for it. A 17 year old who has consentual sex with a 15 year old is not guilty of rape. But is guilty of sex with a minor. (if the age of consent is 16)

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  4. The potential of opening teenagers to blackmail is what concerns me the most about this law. An SHO friend of mine told me about a case that happened at a rural UP school. A watchman caught a teenage couple having sex and after threatening the boy away, he demanded that the girl ‘gives him’ sex or he’d report to the authorities and ruin her life. She conceded and this ended up in case of repeated rapes till her parents found out and reported the matter to the police. By having laws like this, such incidences will only rise since the threats and blackmails will have a legal angle in addition to the cultural one.

    Also, I find this law chauvinistic in nature, particularly because it is applied by a parliament that does not take into consideration the lack of taboos against teenage sex in tribal cultures like mine. So desis are squeamish about 16 year olds having sex, which means we have to have the same value system forced down our throats. And to top that, there is no law against marital rape. On several occasions, district family courts in India actually mandated unwilling wives to sleep with their husbands, as a part of her ‘marital duty’.

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  5. Indeed, another regressive proposal.

    Instead of solving problems at the roots (illegal child marriages, marriages between teenagers and old men, promising daughters “for later” and general idea that men are entitled to sex with whoever they want just because they are men and men have “needs”), officials try to chase the “symbolic” victims – sexually active young people.

    This only reinforces the taboo of sex, sexual education and related health and safety issues.

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  6. 1. I think they should retain 16 as the age for legal sex. In urban India, as much as parents may wish otherwise, a lot of students in +2 engage in sex. Even in my relatively small town in the conservative south, I knew a few couples from my +2 batch who were having sex, that too in the late 90’s, early 2000’s. It’s ridiculous that they should be imprisoned for it!

    2. When two people under 18 have sex by mutual consent, making that statutory rape is nothing short of absurd. How can it be rape when two 17 year olds have sex? Or if a 16 year old and an 18 year old have sex? They are largely in similar stages of mental/emotional/physical development. That is very different from a 16 year old having sex with a 26 year old – we’re talking about a significant age gap here, where both parties are in very different stages of development, and it is reasonable to expect that the mental/emotional/physical development of the 26 year old is far in advance of that of the 16 year old.

    3. Statutory rape, while taking the age difference into consideration, should include cases of married couples also. For example, if a 25 year old has sex with a 15 year old, it is rape, even if the couple is married to each other. However, I see that this is going to be very problematic to implement – in such a case, the marriage itself is illegal but many such marriages exist in India so when they can’t prevent the marriage, how can we expect them to prevent the sex?

    4. The need of hour really is sex education – given that more and more young people are engaging in sex at a younger age than ever before, they need to be informed about their choice, they need to be aware of the consequences of such a choice, and they need to know about safe sex practices. Sex education or not, young people are going to have sex – we may as well make sure they have safe sex.

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    • I disagree.
      I don’t see why similarity in mental/physical development is a requirement at all. I mean, what is wrong with a 16 year old and a 26 year old being sexually attracted to each other (with or without emotional involvement)and indulging in sexual activity? (As long as the 16 year old boy/girl knows what he/she is getting himself/herself into and has given full consent to it).

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      • There is a question of how meaningful the consent is, when the partners are very different in development. An adult will often be much more resourceful and may be able to manipulate a younger person into “consenting”. I’m not sure how much of a problem this would be in practice, but it’s the reason some jurisdictions do have exceptions for similarily-aged people.

        Besides, if two similarily-aged people have sex with oneanother it seems arbitrary to punish the one that happens to be a few days older, when the reality is they are similar-aged. Punishing the 16 year old with a 15 year old girlfriend is quite random – if the girlfriend was born a few months before him, we’d be punishing her instead.

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      • Because, like Elvind below has already said, when someone is so much older, they are in a position of power/authority, their maturity is so much more, so the consent given by the 16 year old is very questionable.

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        • I think these concerns are valid even for adults to be honest. We have rules against, for example, professors sleeping with their students, even if the students are over 16, or for that matter over 18. We also have rules forbidding bosses at work from having relationships with workers. That is because it’s recognized that there’ll always be doubt about how meaningful consent was when one has power over the other.

          Money has the same effect too. I earn around 100 times the average Indian income. How meaningful is “consent” if I go to India and find some girl willing to be my girlfriend for a week or a month ? Is the consent still meaningful if she fears she will be starving if she says “no” while saying “yes” would allow her to live the rest of her life in comfort ?

          Sure, it’s a choice – but is it a free choice ?

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      • Neethu’s argument isn’t without merit. In an ideal world, it shouldn’t be a illegal if a 15 year old has sex with a 25 year old, out of his/her free will. However, we don’t live in an ideal world. A relation between an adult and a teenager always leaves room for coercion or assumed consent by the older person. Hence, the legality of the issue.

        And by the way, in cases of an older woman sleeping with a male minor, she usually gets charged with misdemeanor, not statuatory rape. The law always makes room for the woman, with the social stereotype that sex between an older female and a younger male is relatively harmless (when from my personal experience, it is anything but). Men are also less likely to pursue a case of statuatory rape against an older woman, since society finds it difficult to digest the idea that a man might be unwilling to sleep with a woman (which again, one cannot understand unless they have been in the exact situation).

        @ Eivind: Sex in exchange of money is prostitution. It is legal in India as long as the woman is willing to the transaction and the affair is ‘discrete’, i.e. without pimps or ‘act of public indecency’ involved. The issue here wouldn’t be much of a legal issue, but an ethical one. Can sex be commoditised?

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        • Yes, if you offer money point-blank as an exchange for sexual favours, it’s prostitution. But it doesn’t need to be that blatant. It’s sufficient to obviously have resources to offer, even if you don’t explicitly say anything.

          It’s very difficult to have an equal relationship to someone if the power-balance is very tilted. If you are much wealthier than the other person, this will tend to give you substantial power. (the power to immensely help the other person if this person does as you wish, for example)

          16 is obviously an arbitrary age, there’s no reason that age is more “correct” than 15 or 17. But this is true for age of adulthood at 18 too, it’s just an arbitrary line in the sand. The thing is, picking a line such as this makes things a lot easier, the alternatives would involve having some kinda test or something for who has reached what maturity-level, and that is clearly impractical.

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  7. “I think any sex with a teenager less than 18 should be treated as a crime – but only if the partner is more than three years older than the woman.”
    I think it should be applied both ways. Contrary to media and popular stereotypes, sexual exploitation of younger boys by older girls/women can and do happen and at times, they are as traumatic to the male as they are in the reverse.

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  8. Laws such as these have great potential to be misused with not much benefit to the victims it is suppose to protect
    Might have been better if all School authorities were compelled by a law to give good Sex education to children.

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  9. Few will be benefited from this.
    1. Police constables who will see young couples chatting will extract money taking the name of this law.
    2. Chola chap doctors who will now will have more illegal abortions in their nursing homes.
    So at least some people will be happy. I agree with Arun it will be better to make a law where sex education is compulsory in schools.

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    • The question is how many parents will actually send their children to a sex education class?

      And in the name of which morals will this class be taught: religious abstinence blabber or conservative “if you have sex, you will be punished” kind of rhetoric do not constitute a valuable sex education.

      Is there at all a chance for discussing sex in Indian schools in a way which really addresses the societal problems in this sphere?

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  10. First we should have good strong sex education in school
    next parents MUST have an open conversation about sex with their kids.
    These 2 should be reinforced and educative not judgemental.

    BUt having said that i have no issues with raising the age to 18, you are a legal adult ONLy at 18, you can live by yourself and are responsible for yourself only at 18, if you commit a crime you are judged as an adult at 18 and many many other things. that is the age when no else’s consent is required for anything you do, you are your own person and hence i don’t see anything wrong in getting a standardised age across for diff things.
    As for a 18 yr old hav ing sex with a 17yr old. tch tch tch… too bad for them, didn’t they pay attention in the sex education class?🙂 doesn’t the 17yr old know he/she is a minor ? Yes then there is the answer. YOU are a MINOR , meaning the general world population doesn’t consider your brain developed enough🙂 yes i know a miracle happens on your 18th b’day but that’s life , it sucks , live with it.

    As for underage marriages, unruly cops and other issues, nothing can be done about it even if they make rules,

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    • Radha you don’t think this would empower the police/neighbours to harass two sixteen year olds or a seventeen and a sixteen year old?
      There have been cases where a girl has been forced to have sex with more than one person because she could be blackmailed into it after having sex with one person (generally through MMS video or photographs) – till now it was only social stigma she feared, and if she could gather the courage to face it, she had the law by her side. Now the law would also see her as a culprit.

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      • Ihm, Yes these are all possibilities, but i don’t see raising the age by 2 years will cause more pain than already present. All it is is a number, Teenagers have sex starting quite young, so what’s to say 2 15yr olds( almost 16) won’t be exploited. The law says 18 is adult ( we can debate that both ways) but when you have to be the legal age to get a the legal license to marry when then why not to have sex ?
        I have 2 -17 yr olds, and we always tell them they could have had sex at 15 or 16 or now but till they reach the age of 18 ,We are their guardians, and will be need to be informed – be it in the areas of education, friendship, sex, affairs, relationships etc., I’m pretty sure my sons are more responsible than the avg 17 yr old BUT when a decision they take affects another person then I don’t think it wrong for the law to demand that they both be 18.

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  11. I can’t help thinking (and agreeing) that such law to raise the age of sex to 18 will no doubt be abused by officials (including police). Again, it seems those mutually consent and engage in such activity are being punished – and for those who actually commit the serious crime will gain to benefit in such law change.

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  12. The only way we can stop many issues is to say
    1. consensual sex at any age is not a crime.
    2. Rape at any age – against anyone is a crime deserving of the harshest punishment.

    It’s not a age issue, it’s a consensual vs no-consent relationship. If we want to keep sex personal then why not 15yr olds ? don’t they have a right to privacy, what is the magical 16yr age. In my mind it’s either open to all or separated based on minor/major ( 18 yrs) legality.

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  13. I think the tricky thing is that this whole age thing is so arbitrary. It’s almost like picking a magic number and depending on which side of the number you fall, it’s rape or not. I think the major issue is consent, as Radha pointed out, so at what age is a person capable of informed consent. This then gets into sticky waters of if a child consented to a sexual relationship with a much older adult, then what? And what age gap is acceptable – you said 3 years, which honestly doesn’t make much sense to me because a 3-year gap is quite small, 5 seems more sensible but still, as someone pointed out a 16-year-old having sex with a 26-year-old is actually not that horrifying to me. I think as you get older the developmental and maturity gap closes rather quickly.

    I didn’t quite understand your first example about the 15-year-old. Many young girls look younger than 18 also. The point is not to have a subjective discussion on how a person looks but to use a document like a birth certificate to ascertain age.

    Since the whole thing is arbitrary, maybe as Radha said, 18 would be easiest as it’s supposedly the age at which one becomes an adult. But realistically it doesn’t make sense, as many people are now having sex at 14.

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