In this era of information overload and excessive early exposure, the age of innocence is receding like the hairline of an ageing man. Driven by the compulsive need to appear, sound and behave like the torchbearers of western liberalism, we seem over-willing to import western ways indiscriminately. But then, such adolescent, misty infatuation with the west is not new. Yet, it was downright shocking when someone significant enough to be taken seriously by a major Indian newspaper suggested that the age of consent for non-penetrative sex be brought down to 12, as is the case in certain western countries.
Indian parents, who were still in the process of coming to terms with the apparent ‘legitimization’ of live-ins, had all the reasons to be alarmed. Even the most ‘liberal’ Indian parents had not imagined that the lawmakers were thinking of giving them a freezing shock-shower of western values. Worse still, it gave the ready impression that the legislators, instead of thinking about poverty, hunger, homelessness, farmer suicides and ever-rising inflation, were thinking about ‘age of consent’ and ‘non-penetrative sex’.
Much of what caused the alarm stemmed from the confusion generated by an ill-informed understanding of the expressions ‘age of consent’ and ‘non-penetrative sex’, and their complex interplay in legal parlance.
To begin with, the expression ‘non-penetrative sex’ is itself quite a baffling problem because there can be ‘non-penetrative sexual activities’, but no such thing as ‘non-penetrative sex’. It is as good a descriptive expression as ‘vegetable hamburger’. Sex, properly speaking, involves penile vaginal or anal penetration. Other sexual activities such as ‘oral sex’ may be clubbed together under the expression ‘non-penetrative sexual activities’, but such acts do not constitute ‘sex’ in the strict sense of the term.
The expression ‘age of consent’, despite not being a part of nearly any statute in the world, is generally used to refer to the age after which an individual is considered competent to consent to sexual intercourse. It thus follows that having sex with a person incompetent to consent would amount to sex without consent, which is rape and is punishable by law. Therefore, ‘age of consent’ forms an integral part of all definitions of ‘rape’.
India being no exception, the ‘age of consent’, strictly speaking, is governed by the rape law stipulated under Section 375 of the Indian Penal Code, 1860. According to the mentioned provision, sexual intercourse with a girl under the age of 16 with or without her consent is rape unless the female in question happens to be the wife of the accused.
Interestingly, the ‘age of consent’ applies only to intercourse, and intercourse has been expressly defined in terms of penile penetration of the vagina under Section 375, which leaves ‘non-penetrative sexual activities’ completely outside the scope of the provision. This means that ‘non-penetrative sexual activities’ and ‘age of consent’ have no connection whatsoever because lowering ‘age of consent’ can only mean bringing down the minimum age to engage in intercourse and not in ‘non-penetrative sexual activity’, which further implies that the two expressions have no legal bearing on each other under Section 375 as of now.
So, what legislative action is required to permit consensual ‘non-penetrative sexual activity’ in the 12-16 age bracket? None, as a matter of fact, because ‘non-penetrative sexual activity’ has not been legally classified as crime. So, if a boy and a girl in the age group of 12-16 years engage in such an act, there is little in the act per se to attract any provision of the Indian Penal Code or any other penal provision for clear absence of criminal intent so long as the act is consensual involving no criminal force or deception.
Also, the idea of permitting such acts only to the members in the same age bracket (12-16) was apparently a preemptive move to prevent adults from sexually exploiting children. Again, this makes little sense. If a minor girl of, say, 13, engages in consensual ‘non-penetrative sexual activity’ with an adult of 21 years of age or more without any manipulation or deception of any kind on part of the adult, nothing in the Indian Penal Code or any other penal statute makes it culpable for an obvious want of criminal intent. It would turn into the crime of rape only and only when penetration takes place with or without the consent of the girl, for it is in this respect that ‘age of consent’ comes into operation as per Section 375.
Furthermore, Section 90 of the IPC categorically states that the consent of a child, unless specifically provided otherwise in the Act, is invalid only if the child is below 12 years of age.
Therefore, howsoever alarming it might sound, a plain reading of Section 375 and Section 90 together leads to the indubitable conclusion that ‘age of consent’, so to speak, for the purpose of consensual ‘non-penetrative sexual activity’ is already twelve.
It is worth noting here that the expression ‘age of consent’ becomes applicable to ‘non-penetrative sexual activities’ only by extension of the general definition of ‘consent’ under Section 90 read with Section 375. But, strictly speaking, ‘age of consent’ obtains its primary legal meaning from Section 375, where it has a fundamental operational significance. And this distinction might turn out to be of crucial interpretational relevance in certain circumstances.
Lowering ‘Age of Consent’?
Now, the question that remains to be answered is whether we need to bring down the age of consent for sexual intercourse to twelve years from the current sixteen. To answer that question, one needs to look into the fundamental reason why the law had to – and has to – spell out ‘age of consent’, properly so called, in the first place.
Since age of consent is an indispensable operational component of rape law without which a comprehensive working definition of rape cannot be formulated, it is not surprising that it was around 800 years back in 1275 that ‘age of consent’ was stipulated the first time as part of the rape law under a statute called ‘Westminster 1’. The statute defined it a misdemeanour to “ravish” a “maiden within age”. And Sir Edward Coke interpreted “within age” as the age of marriage, which was 12 years at that point of time.
This interpretation was very much in line with the traditional understanding that the age of consent was the age when nature made a human being physically capable of engaging in sex for the purpose of procreation. Therefore, age of puberty was the age of consent.
Nature might have made human beings capable of procreating early in life to improve the chances of their survival as a species, but human beings, having removed themselves from the food chain, were now in a different environmental setup and had to respond accordingly. It did not take them too long to realize that.
This is the reason why physical maturity was central to the understanding of ‘age of consent’ earlier, but later as the rape laws came into being the idea was to ensure that the individuals involved in the sexual acts were capable of understanding the nature and consequences of engaging in sexual intercourse.
This explains why with the advance of civilizations across the world, the age of consent has gone up and not down. In this respect it is noteworthy that the French Napoleonic Code put the ‘age of consent’ at 11 years in 1791, and later raised it to 13 years in 1863. Western countries like Denmark, Portugal and Spain were no different in this respect with the age of consent at 10 to 12 years, which was later raised to somewhere between 13 and 16 in the 19th century. The US also followed the same pattern with most of the states establishing age of consent at ten or twelve around the 1880s and raising it to sixteen or eighteen by 1920s.
Quite obviously this scaling up of the ‘age of consent’ with social and cultural development across the world was due to the increasing realization that sexual intercourse in human society was not just an animal act of procreation but had a much wider ambit of consequences with social, political and cultural implications on one hand, and physical, emotional, and psychological repercussions on the other in varying degrees depending upon the place, time and circumstances involved. Premature exposure to sex and sexual activities was not found conducive to healthy metal growth and could lead to a warped disposition towards sex and sexuality, which could lead to long term behavioural complications.
Therefore, while women needed protection from sexual violence; young, gullible maidens needed cover against lusty seduction at the hands of scheming, lecherous men. This is why rape laws seek to afford protection against both kinds of sexual overreach.
The far greater exposure that children have today makes them even more – and not less – vulnerable to manipulative sexual advances, which makes the case against lowering the age of consent virtually unassailable. There is no reason why we should even think of lowering the age of consent and thereby deliberately putting our children in the way of harm.
There is nothing wrong in allowing and even encouraging children to make their own decisions so long as it is borne in mind that freedom must always correspond to ability. Too much, too soon is too dangerous.
Originally written for and published in LAWYERS UPDATE as Cover Story [March 2011 Issue; Vol. XVII, Part 3]