'Age' gets caught up in legal tangle

By making 16 the cut off age in laws for rape, should government now consider changes in the age of juvenile offenders too?

The rape of Jyoti Pandey on 16 December, brought the nation together, as men and women came forth in unequivocal support demanding safety and security of women across the country.

People, especially students turned out in huge numbers to demand stringent punishment for the culprits. In a related development, two months to the gruesome incident, on 1 February, the government increased the age of consensual sex from 16 to 18 vide a tough anti-rape ordinance. 

A month-and-a-half down the line, on March 14 the government has again reverted to the original provision, by once again reducing the age of consensual sex to 16 not just in CrPC but also in the Protection of Children from Sexual Offences (POCSO) Act 2012.

Now when 16 is the proposed cut-off age in the laws dealing with rape ( The Criminal Law (Amendment) Bill) and POCSO,  ironically law offenders till the age of 18 are still treated as juvenile in our country. The anti-rape Bill passed by the Cabinet, leads to this conflict of ages which varies with different laws.

“Age of consent does not mean age at which you are allowed to consent for sex. It is a concept of criminal law that means, the age below which ‘consent’ will not be a valid defence against a rape charge. So if a 16-18 year old boy is charged with rape, he will be convicted even if the girl tells the court she had consented!” says Kavita Krishnan, secretary, All India Progressive Women’s Association (AIPWA).

“If it is raised to 18, young boys, especially from dalit/oppressed castes, will face rape convictions for consensual relationship with any girl. It is advisable to amend the law whereby a man who is four years or older than a 16-18 year old girl can be convicted of statutory rape irrespective of the ‘consent’ of the girl, since an older man can sexually exploit a young girl,” says Kavita.

No doubt, the higher age of consensual sex will increase the prosecution of boys for offences of rape on the basis of complaints by girls' parents, even if the girl was a consenting party. However, in the true case of rape it will further lead to the ‘revictimisation of the victim’ in the court proceedings to prove consent. “It is true that victim will be victimised every time in court and under various laws the main culprit can be acquitted,” says a Supreme Court advocate who prefers anonymity.

So, if the government is ready to make 16 the cut off age in rape for laws then it should seriously consider the Juvenile Justice (Care and Protection of Children) Act 2000 where offenders below 18 years of age cannot be tried by the regular court which comes in direct conflict with amendments in POCSO. But the question is, if a 16-year old girl can give consent for sex than why cannot a 17-year old boy be charged for rape?

Interestingly, worldwide a juvenile’s culpability and sentence is determined according to the nature and the severity of offence. In US, until 2005, juvenile offenders below 18 were being awarded even death sentences until declared unconstitutional by US Supreme Court. Similarly, in Canada, provisions of the Youth Criminal Justice Act 2003, highlights the protection of the society as the fundamental principle and give sentences to youth who commit serious violent offences.

However, supporting the Juvenile Justice Act of India, Geeta Luthra, senior human rights advocate at Supreme Court says, “You cannot change the entire law because of one incident. Children are a product of society and one chance at reformation should be given to them. But it is important that juvenile board have counsellors and reformers who can work on criminals for years.”