Sexuality among children and adolescents is often ignored in our country and although studies have proven the need for comprehensive sexuality education, our leaders and educators still scoff at the idea and it seems like a far cry for our children and adolescents.
The few conversations around adolescents that do come up are more often about a juvenile caught in a case of sexual violence. But, the laws related to children and adolescents are very confusing and inconsistent. The Protection of Child from Sexual Offences (POCSO) Act says that all sexual activity under the age of 18 is criminalized and the Prohibition of Child Marriages Act 2006 says that a girl has to be 18 years of age to be married. However, an exception under Sec 375 of the Indian Penal Code says that sexual assault within marriages will only be considered rape if the girl is below 15 years of age.
But, children from the age of 16 could be tried as adults for heinous crimes and recently, according to the draft bill on Medical Treatment of Terminally Ill patients, a terminally ill 16-year-old is competent enough to decide on whether to continue treatment or let nature takes its course. The age of voting for all individuals is 18 years of age, while the legal age for consuming alcohol varies from state to state and sometimes goes all the way up to 25-years of age.
So, I chatted with Vidya Reddy, co-founder of Tulir (Centre for Prevention and Healing of Child Sexual Abuse) to understand how we should address adolescents, their sexuality and their relationships. Vidya helped me understand where the problems lie and how we have been constantly glossing over them as a society.
Here is a snapshot of our chat.
How do you define or differentiate between children, minors and adolescents? Legally, the age is differently defined based on various laws. What do you think is appropriate?
There are many anomalies in the official nomenclature of a child. According to the Juvenile Justice Act, a child is anyone who has not completed their 18th year. According to the Child Labour (Prohibition and Regulation) Act, a child is someone who has not completed their 14th year, whereas anyone between 14 and 18 years is called an adolescent. According to the Right To Education Act, a child is someone between 6 and 14 years of age. And according to the Prohibition of Child Marriages Act, 2006, a child is defined as someone who has not completed his 21st year for a boy or 18 years for a girl.
Some laws use the term minor, while some laws use the term adolescent. Moving away from the legal definitions, personally, I like to use the word children and young people. According to me, a young person could be anybody from the age of 13.
There has been a lot of debate on the age of criminalization of sexual activity. While the age has increased to 18, the Justice Verma committee suggested that we reduce it back to 16. What is your take on this entire debate?
I do not use chronological age for conversations around young people and their capacities to make decisions. If you see the reality in our country, there are young people supporting & managing families and take up large amount of responsibility.
The point is that there is an evolving capacity in every child that we refuse to acknowledge. It means that every child has a different level of capacity based on their environment, culture and life experiences. Therefore, their understanding of problems, need for protection and decision-making capabilities differ accordingly.
We consider this evolving capacity only when it suits us. We do not want to address a child’s right to decision making and accessing information based on their own capacities. (You can find more resources on evolving capacities of a child here).
We also need to look at the social reality of the country we are living in. Someone who has trained in nursing handles dying patients when she is 19, but at that age she cannot decide to have a drink. And according to our laws (in the words of POCSO), if I am 17 and holding hands in a movie theater with an 18-year old (with proof of “sexual intent”), it is a crime. But, if I was fifteen and a half and was in a marital relationship, and the man sexually assaults me every single day, it is not considered rape. And, if I am younger than 15, and already married, where is the agency to file a complaint?
So, I do not agree with using chronological age to define everything.
So, do we not at all define a minimum age for sexual consent?
We need to draw the line somewhere and we need a law. So, I would say 16 should be the minimum age for sexual consent. Some countries bring it down to 14 and even 12, which I personally think is too young. We should make all our laws consistent and draw the line at 16.
However, we still need to treat everything on a case-by-case basis. For instance, if you say that there is a 17 year old eloping with a 35-year-old, I certainly have a problem with that, but if a 17-yr old is eloping with an 18-yr old, it is in accordance with their psychosexual development.
But, the bigger problem in India is that consent is constantly being discussed within the prisms of morality of the middle class. In Tamil Nadu, there are cases where a 16-year-old girl lives with a boy’s family with the entire family’s consent to escape the radar of the child marriage. There are several sections of the society who also want to get their boys married off soon because they are aware of their child’s interest in sexual activity.
Basically, there is a huge disconnect between the legislation makers and the sociological reality of the country. Eventually, middle class morality dictates.
Do you think age calibration could be introduced, where age appropriateness gets better defined?
In India, where births are not even registered, or when birth certificates are collected years after birth, how will we introduce age calibration? Age calibration works in a systematic environment where every birth and every death is registered. Here, it just becomes a number. Instead, we should be contextual in all the cases that we know about.
We constantly hear of cases of elopement where a couple runs away together, and a police case gets filed. Do these cases have any validity at all?
The context of two young people eloping is an artificially created situation. Most of the relationships, if left alone, would have fallen by the wayside on their own.
Here too, in the hierarchy of what is important, sexual relationship is lower in the list. Other factors such as caste takes precedence. In most of the elopement cases, which come to the police station, the girl is from an “upper” caste and the boy is from “lower” caste. Here, the sexual expression falls way down in the priority list.
Also in cases where a young unmarried girl gets pregnant, the problem largely exists with the fact that the girl took control of her body and chose to participate in the act of sex for pleasure. If she were married, sex is assumed to be an act for the sake of reproduction. So, with the manifestation of the sexual relationship (before marriage), problems present themselves. However, nobody cares about the sexual experimentation for boys. That is considered acceptable.
In our experience of elopement cases, by the time the hearing comes up in court, the couple will come with a baby in tow. In fact, many juvenile justice board officers would prefer a more realistic legislation with respect to age. They tell us that they either have two accused or two victims. In several cases that they see, they come up with their own interpretation and do not pay heed to POCSO. (Eg: A Delhi Court observed in 2013 that consensual sex with a girl under 18 is not a crime.)
And sometimes, cases of consensual sex results in sentencing in court.
How do you think we should deal with juvenile sex offenders?
First of all, I would not refer to them as juvenile sex offenders. I would call them youth who exhibit sexually harmful behaviour. There are young people who exhibit sexually inappropriate behaviour and those who exhibit sexually harmful behaviour. For instance, a 5-year-old that pulls up the skirts of his classmates exhibits completely inappropriate behaviour. This kind of behaviour is learned from his own environment.
The way you handle inappropriate behaviour is different from the way you handle harmful behaviour. Also, there is a misconception that all children who have been abused will become abusers themselves.
Basically, in young people we need to address the sexually offending behaviour. In recent times, the number of young people exhibiting sexually harmful behaviour has increased tremendously. And, we cannot intervene with them the same way in which we intervene with a group of kids who have been caught stealing. We need to exclusively pay attention to the sexually offending behaviour and address that aspect. It has been proven worldwide that young people who are sexually harmful have responded very well to therapeutic intervention.
Do you think we are approaching the discussion of young people & their sexuality in a meaningful way? Or is there a gap in all our conversations?
First of all, when sexuality is concerned, nobody wants child participation. Where are we involving young people in our discussions? Also, if adolescence is the time you find your identity, what about finding your sexual identity?
Moving away from the constant discussions around age of consent, I will be very happy if young people are given the emotional markers or the knowledge of how to conduct themselves in a relationship. Firstly, we need to understand that nowadays, with technology, there is no chance you can ever put the lid on anything. This demographic is a FOMO-generation (“Fear Of Missing Out”) with unfettered access to technology. Anybody who has a gizmo is pushing the frontier of what their perceived boundaries are.
We need to understand that nowadays children and young people’s identities are built around their online & social presence. This is the new world they are communicating in. Technology is an essential part of their lives, which defines their lives and relationships differently. Also, they face quite a lot of peer pressure and mostly burn out by the time they arrive in their twenties. So, first of all, parents and educators need to understand this. There is no point in putting barricades in their lives and access to information.
We are also unwilling to accept that they may experiment with identities, which are not hetero-normative.
Instead, we should just allow young people to communicate appropriately with each other offline. So, to me the focus of our conversations to young people and about young people needs to be on respectful relationships. We need to make them understand that there are ethics to a relationship, there are ethics to breaking up and there are ethics to communicating with each other. We need to teach them to end one relationship before starting another one.
Young people are often conflating love with sex. They communicate with each other in what we would perceive as sexting.
Worldwide, it has been recognized that young people need better social and emotional learning (SEL). SEL is a process through which children and young people learn to express empathy, create & maintain respectful & positive relationships, and make responsible decisions. SEL has also led to greater academic learning. Unfortunately in our country, this has been glossed over and there are interpersonal problems throughout life.
We constantly find faults with the high-income countries, while we are ignoring the reality in our own backyard.
Featured Image Credit: A group of young school going students | kinseyconfidential.org