The 1924 Geneva Declaration, for the first time, recognised and proclaimed the existence of children’s rights and the responsibility of adults for children, and recognised children as a distinct category with rights. According to International law, a ‘child’ means every human being below the age of 18 and this has been accepted and ratified by most countries. The data by the National Crime Record Bureau, states that as many as 109 children were sexually abused every day in India and as per the data from the National Crime Record Bureau, a 22% jump in such cases has been seen every year. Millions of children suffer harassment and are victims of sexual violence and exploitation. This is the reason for POCSO (Protection of Children Against Sexual Offences Act 2012), a special law that treats everyone under the age of 18 as child and lays down stringent punishment for anybody who commits sexual abuse or sexual assault against a child and it is gender neutral–the Act recognizes that boys can also be victims of sexual assault.
Recently, the Chief Justice of India has urged the Parliament to revise the age of consent for sex under the Protection of Children from Sexual Offences Act (POCSO Act). At present, the age of consent for sexual relationships is 18 years, and if an adult has sex with a minor even with the consent of the minor, it is considered rape. If two minors indulge in consensual sex, they will still be in conflict with the law. The reasons given were that the courts are seeing cases where the sex is consensual among adolescents, but it is a criminal offence. The age was raised from 16 to 18 years under this act in 2012. Child right activists have pushed for this Act and much thought went into it. Only under POCSO are the rights of boys and all genders taken into consideration. It applies to all children till the age of 18 years. This Act is a pathbreaker as the proof of innocence lies with the alleged perpetrator, in simple terms it means “guilty until proven innocent”. Acts like the Dowry Act or any other law will and has been misused and one will not deny that but it has saved many more children and prevented many others from child sexual abuse in rural and urban areas.
Let us take driving for instance, where the age is 18 for driving yet a large number of adolescents below 18 drive and those who are caught for it are punished but one does not talk of changing the law to accommodate these cases. Take another example of drinking where the legal age is 18 years and major violations happen, yet no one speaks about changing laws. Then why are we insisting on reducing the age here. The reason why lowering of the age for consent of sex is not recommended is the research on the adolescent brain. Scientific studies have shown that the human brain is not fully developed until the late-20s. Earlier, assumptions of 18 being the mark of adulthood have been debunked. The adolescent brain is undergoing development, it is remodelling itself i.e., pruning and myelination which results in the many behaviours typical of adolescents – risk taking, not being aware of consequences, sensation seeking, judgement issues, impulsiveness, etc. There are two main features that seem to distinguish teenagers from adults in their decision making,” says Laurence Steinberg, “During early adolescence in particular, teenagers are drawn to the immediate rewards of a potential choice and are less attentive to the possible risks. Second, teenagers in general are still learning to control their impulses, to think ahead, and to resist pressure from others, their decision making, and reasoning skills are developing.” Decisions teenagers take are not independent decisions but influenced by their parents, peers, community, society, and then by their biology, emotions, and many other psychological, social, and other pressures/ factors as they are still in the process of forming their identity and independent worldview and self.
Consent is an agreement to do the same thing, at the same time, and in the same way. Consent is Continual, Specific, Not Simply a Lack of No, Not Forced and Coherent. If consent is not freely given, reversible, informed, enthusiastic, and specific, then it is not consent. Consent then is:
• Clearly saying or showing that you want to engage in a sexual activity
• You’re able to freely consent to sex, or not in a coercive relationship or being held against your will
• You’re able to think clearly or understand the situation In the context of adolescents, consent is not free from influences and, therefore, is not really consent. Adolescents are influenced by their peers in a desire to ‘fit in’ and seem cool.
The five most common peer pressured activities of teens are:
1. Using Drugs, Alcohol, Tobacco, E-Cigarettes and Vaping
2. Stealing
3. Bullying
4. Sexual Activity, Sexting etc
5. Other Risky Behaviour But all this reduces by the time they are in their 20s.
Besides this there are other factors that influence consent to sexual activity like if their sexual partner is in position of trust or authority towards them, for example their teacher or coach; the young person is dependent on their sexual partner, for example for care or support; the relationship between the young person and their sexual partner is exploitative. Lowering the age of consent will not help anyone but will undo the years of struggle to fight for children’s rights and recognize children who deserve rights and deserve to be safe and probably pave way for paedophilia to be accepted as another normal thing. But what can be done is:
1. to make allowances for minors engaged in sexual acts with each other;
2. consider the young person’s age;
3 consider the age difference between the young person and their partner;
4. consider how the relationship developed (for example, quickly, secretly, or over the internet);
5. Whether the partner may have controlled or influenced the young person. ‘A safe child is a safe nation and safety doesn’t happen by accident’.
Dr. Chavi Bhargava Sharma is the founder and CEO of Indic Center for Psychological Wellness and Holistic Health and Conversationalists-Talking Cures.