#India – Young Love, old moralities #moralpolicing #ageofconsent #adolescentsex


Kamayani Bali Mahabal | March 23, 2013, Times Crest

The whole debate around the age of consent is clouded by foolish misconceptions, some of them legal and many of them cultural.

Do Baba Ramdev and others know what the implications of reducing the age of consent are? They have been crying themselves hoarse that the move will lead to a rise in the incidents of rape.
‘Age of consent’ does not imply the age at which you are allowed to consent for sex. It is a legal concept which means that this will be the age below which ‘consent’ will not be considered a valid defence against a rape charge. So if a 16-to-18-year-old boy is charged with rape, he will be convicted even if the girl tells the court she had consented.

There is also another misconception at work in this debate. The age of consent is not being reduced – in India, the age of consensual consent has always been 16. Consensual intercourse with a girl under this age was construed as “statutory rape”. The Protection of Children from Sexual Offences Act, enacted in 2012, increased the age of consent to sexual intercourse from 16 to 18. The Verma Committee recommended that the age of consent in the Indian Penal Code should revert to 16.

Where does the age of consent stand in other countries? Britain, 16, France, 15, and in Spain, 13. In the United States, the age ranges from 16 to 18 years, depending on the state in the question. People need to understand that it is quite normal for people to have sexual relationship at 16 or 17.

The reason feminists are asking age of consent to be kept at 16 years is that we do not want to criminalise and send off young boys to prison when they are in a consensual sexual relationship. As Judge Kamini Lau in her judgment last year said in the absence of what she called a “close-in-age reprieve, ” the increase in the age of consent “would become regressive and draconian as it tends to criminalise adolescent sex. ” If the age of consent is raised to 18, any sexual contact between teenagers will be considered rape, period. And all big brothers who want to control their sisters’ freedom will use it to accuse any boy/male classmate/friend who befriends their sisters, strengthening the patriarchal stereotypes which the women’s movement has been fighting to eliminate for decades.

According to the apex body of child rights in the country, the National Commission for Protection of Child Rights, children’s homes are full of boys who have eloped or had consensual sex with young girls whose disapproving parents have filed cases of kidnapping and rape against them. This means that a later age of consent is widely used as a weapon by protective parents.

Then there is the other question: Would pegging the age of consent at 16 encourage trafficking and rape? How can it? Trafficking and rape are a crime, no matter what the age. If it is raised to 18, young boys, especially from Dalit and tribal communities, will face rape convictions for consensual relationships with upper caste/class girl.

We need to amend the law whereby a man who is 4-5 years or more older than a 16-to-18-year-old girl can be convicted of statutory rape, irrespective of the consent of the girl, as he can sexually exploit a young girl.

The issue here is not if teenage sex is good or bad but if consensual sex between teenagers is to be defined as rape or not. We are drafting a criminal law, not a moral or a social code like the Manu Smriti.
The various babas, religious groups and the khap panchayats believe that young persons, particularly girls, should not exercise any sexual freedom. They view marriage, as determined by their families, as the only destiny for young women. The decision to have sex or not is personal. The law cannot decide when and where a person should have sex, it can only frame laws to prevent crimes.

We should understand the difference between consensual sex and marriage. A marriage is not all about sexual gratification. It is a big social responsibility, which ties a person not only to his or her partner but also to the family and kids. So the age for marriage and consensual sex should be looked at differently. Are child marriages held with the consent of children? No, they are thrust upon them. The argument for keeping the age of consent at 16 years is to prevent the criminal law from interfering in the rights of young people to exercise sexual autonomy and agency. This will curb societal control along conservative lines of caste, class and religion.

While drafting the new law, there are some contemporary realities that government appears to have forgotten. It is medically accepted fact that the age of puberty has been coming down across populations around the world. Biologically, therefore, youngsters are starting to feel the effects of sex hormones raging around their bodies much earlier. According to the third National Health Survey, 2005-06 nearly 43 per cent of women aged between 20-24 had engaged in intercourse before they were 18.

Do we have anything close to sex education in India to allow young people to make informed choices? We need to equip teenagers so they can understand their bodies, and respect sexual attraction, not despise it, and deal responsibly with it. We should not criminalise that attraction. If we do, young men will only end up fearing and hating women, and developing a distorted perception of sexuality and women. This will only make them more violent towards women.

Is this the way we want to deal with violence against women? The criminal law should take into account a teenager’s ability and maturity to make decisions about sex. It should help them deal with their sexuality in an informed and responsible way. Law should strengthen our rights and freedoms and not be an instrument of social control or moral policing.

Now that the government has passed the Bill with the age of consent at 18, we have opened avenues for the prosecution of young boys and girls. We have acknowledged that the Indian society wishes to treat its young boys and girls as immature individuals incapable of making a responsible decision about their sexual lives. Now let us think, is this one step forward or four backwards?

The writer is a lawyer and human rights activist.

 

HIV in Chhattisgarh jails, debate over what caused it


Ashutosh Bhardwaj, Indian Express Nov 12, 2012

A nationwide health survey in jails has found 80 of Chhattisgarh’s prisoners HIV-positive, out of 13,000-odd tested. Prison authorities insist that the inmates had probably arrived already infected, but health authorities don’t rule out the possibility that it was after being jailed that they got infected, with unsafe sex or drug use the likely causes.

This has turned into a contentious issue. The health authorities are contemplating distribution of condoms and syringes, but the jail authorities say there is no reason to do so. Their resistance comes apparently because allowing distribution of condoms would amount to an acceptance of the fact that homosexuality exists in jails.

The 80 found HIV-positive include women prisoners too. “This is the first instance of an ELISA test being conducted in jails anywhere in India. Figures for none of the other states are available,” said S K Binjhwar, additional project director, Chhattisgarh Aids Control Society.

“Of these 80 prisoners, 65 have a CD4 count less than 350. They are being given ART. So far we have tested only those we suspected to be from a high-risk group, but since the infection also spreads to others in jails we are expanding our sample size,” he said. “We counsel them about safe sex.”

The jail administration says the health authorities should focus on sources of infection beyond prisons. “Instead of focusing on jails, the health authorities should focus on red-light areas and drug addicts and on improving the health situation at village level, especially checking quacks who use old syringes. These are the major sources of spreading HIV infection,” said ADG (jail) Giridhari Nayak.

“A jail has a mobile population, like a train. People board at a station and get off at the next. Only a few remain till the final destination,” Nayak added. “Of the total HIV-positive inmates in Chhattisgarh jails, only 12 are convicts while the rest are undertrials; they keep getting released and new ones come in. The infection comes from outside; it is not spreading in jails.”

Dr K K Gupta, Raipur jailor, said that the possibility of homosexual behaviour in jails “is merely hypothetical”. Gupta said, “There is no question of distributing condoms or syringes as such activities are yet to be seen in jails.”

Homosexuality in jails has been discussed globally and opinions have been sharply divided. A California study notes that the rate of HIV prevalence among people who are incarcerated is nearly seven times higher than that of the general population. San Francisco jail authorities installed a condom-vending machine on their premises after HIV infection was found to be rapidly spreading in the area in the 1990s.

In Chhattisgarh, the project began in March 2011, when the state AIDS control soc