Re-Defining The Role Of Indian Legislature In Regulating Consensual Sex Between Minors
Keywords:Age of consent,, Statutory rape laws,, consensual sexual act,, Sexual autonomy,, de-criminalizing.
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.1It 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.
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 (InterDisciplinary Press 2010) 47-58, 48
Kaushiki,Law prohibiting sexual offences against children sparks controversy over age of consent, The PRS blog, June 13
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http;//www.telegraphindia.com/1120606/jsp/opinion/story_15575183.jsp, last visited on Nov. 22, 2017.
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John Coggon and Jose Miola, „Autonomy, Liberty and Medical Decision-making‟ (2011) 70 Cambridge Law Journal 523-
Eugene J. Kanin, False Rape Allegations, 23 Archives Of Sexual Behavior 81, (1994)
Richard Green, Sexual Science and the Law. Cambridge, MA: Harvard University Press, 1992, p. 141.
Beatrice Faust, Child Sexuality and Age of Consent Laws: The Netherlands Model, 5 Australasian Gay & Lesbian L.J. 78, 85 (1995).
In the context of medical law, see, for example, the much-quoted statement from Cardozo J in Schloendorff v New York tate 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
Alan Reed, et al. Consent: Domestic and Comparative Perspective, (Routledge, November 2016)
C. Edwards, The Hammurabi Code 46, 51 (1971).
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).
18 Eliz. c. 7 (1576).
Carolyn E. Cocca, Tailbait: The Politics of Statutory Rape Laws in the United States 9-28 (2004).
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
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 sothat this behaviour is taken out of the statutory Rape provision of the Penal Code). The juxtaposition of these two casesraises the question unnoticed by the court, of whether the purpose of the statutory rape was actually the prevention ofimmoral intercourse with young sexually mature females rather than prevention of victimization of immaturity.
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.”)
See Michelle Oberman, Turning Girls Into Women: Re-Evaluating Modern Statutory Rape Laws, 85 J. Crim. L. & Criminology 15 at 28-29 (1994).
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)
Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387, 401-02.
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