THIS essay critically engages with Indian criminal law’s presumption of the irrelevance of consent in statutory rape cases by highlighting law as the site where fears over childhood sexuality shroud both the figure of the child and the idea of the child’s voice, rendering both impossible. Feminist and psychoanalyst Jacqueline Rose uses the word ‘impossible’ in her account of children’s fiction to indicate that the child’s voice is impossible because it is drowned out by adult anxieties on behalf of the child; adults project their own fears onto the child, especially around the sexual. This process also marks the question of child sexuality in Indian law.¹

The 2013 criminal law amendments increased the age of consent from 16 to 18 years in rape law. With the 2018 amendments, when a man commits rape on a woman when she is less than 16 years of age, he is entitled to aggravated punishment of mandatory minimum of 20 years, which may extend to life.² It is important to note here that the proviso that granted judicial discretion to reduce the sentence below mandatory minimum in the case of ‘special and adequate reasons’ has been taken away. Now the courts have no discretion whatsoever to reduce the sentence or show mercy even in situations where the minor was a willing party to the sexual act. While the age of consent was increased in 2013 to make the IPC compatible with the Protection of Children from Sexual Offences Act, 2012 (POCSO)³, which connects sexuality with contractual competence,⁴ the uniformity so achieved is not necessarily based on a robust understanding of competence to sexual consent.

Age of consent laws, in their presumption of absence of consent, turn all ‘Yes’ – even unequivocal, affirmative and enthusiastic – into ‘No’s. Feminist (as well as other) supporters of a high age of consent are driven by the desire to protect the (girl) child who, they believe, lacks the requisite agency to take decisions about her sexuality. Janet Halley in her provocatively titled Split Decisions: How and Why to Take a Break From Feminism⁵ advocates for taking a break from precisely this form of feminism, which she terms ‘governance feminism’. In her formulation, the ‘injury triad’, i.e. ‘female injury + female innocence + male immunity’ forms the positive content of governance feminism (GF, hereafter) which, in her view, has come to dominate feminist legal reforms and activism.

 

Explaining what she means by the ‘break’, she states that she seeks to: ‘move the issues from [that] certainty to a place of hypothesis […] Historically [feminism is] developed around opposition between male and female. But maybe it’s not about that. Maybe it’s about old and young, maybe it’s about anxiety or fear, maybe it’s about something else. You need to get outside, to stand apart, to understand in an effective way what these interactions between people and positions are about.’⁶

Halley’s project seeks to reinvigorate feminism for unless feminism takes a break from itself, ‘it can’t see injury to men. It can’t see injury to men by women. It can’t see other interests, other forms of power, other justice projects.’⁷ In this context, questioning feminist reforms when they get tied to statutory rape provisions, she observes: ‘there are many, many reasons to worry about this [injury triad] kind of political consciousness. Not seeing the productive effects of one’s purposive actions can cause one to intensify them. If, for instance, you don’t think that young men approach heterosexuality with fear and trembling and suffer the inevitable failures of intimacy with deep pangs, you might end up imagining that male-disadvantaging statutory rape laws – which you might be advocating in your effort to protect adolescent girls – have no social costs at all, and so you might proceed, once you’ve got male-disadvantaging statutory rape laws, to intensify them through the addition of rape shield rules, shifts in the burden of proof, pro-prosecution presumptions, and so on. You could keep doing this until the tolerated residuum of abuse had shrunk to its practical minimum and the number of false-positive convictions of perfectly lovely, sexually animated young men had ballooned to what would be […] intolerable levels.’⁸

 

In the Indian context, one may argue that statutory rape law provisions do not reflect the feminist position; in fact, many feminists have been arguing against the increased age of consent for the longest time now. However, the issue is that even the feminist critics of increased age of consent have not raised the issue conceptually. Even when the argument in favour of recognizing sexual agency of adolescents is advanced, it is substantiated with empirical evidence of adolescents/young adults who have fallen in love and eloped to get married,⁹ rather than conceptually approaching the issue of age of sexual consent or of the sexual desires of the young.

The ‘question of age’, tied to questions of responsibility – who is a responsible legal actor? at what age does one become a conscious, legal subject? – is one of the central issues for law. But it has never been debated on its own terms. Even as the legal discourse is obsessed with this question and has attempted various answers, it has not reached ‘a satisfactory answer, for lack of knowledge, the knowledge first of all of what the question means.’¹⁰ As Jacques Derrida reminds us: ‘Up until now, the law has forbidden itself or has been unable to integrate into its essential axiomatic a logic of the unconscious or the symptom: above all, […] another thinking of age (that is, of the time of life and the multiplicity of heterogeneous measures, orders, or ways of counting); law has not reckoned with this other thinking of age.’¹¹

 

How does law reconcile with the multiplicities of age – mental, social and legal – especially when the legal age does not fit with the mental or social age? Should the legal age (of contract) inaugurate the question of ‘sexual age’ (of consent) rather than collapsing former into the latter?

The Verma Committee Report apparently distinguished between the two while suggesting the reduction the age of consent in POCSO from 18 to 16 years. The committee however did not clarify why 16 years is to be accepted as the appropriate age for sexual consent.¹² The committee also proposed removal of judicial discretion in punishment (leaving no scope for leniency even in consensual cases), and heightened punishment for under age rape.¹³ The committee was thus operating with the unquestionable presumption of an asexual (female) child below 16 years.

 

In what follows, I will attempt to make a conceptual argument opposing a particular age of consent. I will argue that we need to shift the terms of contemporary Indian feminist discourse and adopt a feminism that embraces, as Halley remarked, ‘anxiety or fear’. This feminism will not reduce the question of age of consent to some empirical calculation but demand the framing of the issue as fundamentally tied to the question of desire, sexuality and child’s agency. In other words, such a feminist politics will first ask: is the child not a desiring subject?

I analyse two decisions delivered by the Supreme Court of India pertaining to the age of sexual consent. While the first decision related to a criminal case of statutory rape, the second was a writ petition challenging the exemption of marital rape. I will argue that in its uncritical and strict application (and extension) of the age of consent, the court has failed to do justice to the ‘child’ on whose behalf it speaks. In fact, the behalfism of the court stifles all possibilities of achieving the ‘best interest of the child.’ These decisions not only exhibit (adult) anxiety and fear of childhood sexuality but also foreground the violence of law, otherwise occluded by the protectionist rhetoric of saving the children from the dangers of sexuality. The judicial discourse makes it plainly clear that the age of consent laws, despite their claims, are never about the children but actually about the protection and preservation of some other social goals (decency, sexual governance) and institutions (family, marriage, community).

 

In Satish Kumar Jayanti Lal Dabgar v. State of Gujarat,¹⁴ the Supreme Court in a pre-2013 statutory rape complaint, was called upon to decide the guilt of the accused (age not mentioned) who had a love affair with the ‘victim’ (who was established to be less than 16 years at the time of the incident). They had eloped and married before being tracked by the girl’s family. The accused was charged and convicted for kidnapping and rape. Affirming the conviction, the High Court sentenced him to rigorous imprisonment for a period of four and a half (instead of seven) years under Section 376 of the pre-2013 IPC. In appeal before the Supreme Court, the appellant pleaded that the sentence should be reduced and he should be accorded sympathetic treatment as it was a consensual love affair. Both of them were now married (not to each other) and settled in their respective families. He also pleaded for sympathy and mercy as he was a poor man and the only breadwinner in his family.

The Supreme Court, rejecting the plea, held that the appellant ‘is not entitled to any further mercy’¹⁵ since consent is immaterial if the girl is below 16 years. In the words of the court:

‘A minor is incapable of thinking rationally […] [she] can be easily lured into giving consent for such an act without understanding the implications thereof […] A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance […]

Once we put the things in right perspective in the manner stated above, we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as a heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act.’¹⁶

 

In constructing the minor as ‘incapable of thinking rationally’, the court not only disregards the girl’s sexual agency but also consolidates the regime of sexual governance¹⁷ that control the lives of young people, young women in particular, starting from the family and the community and ending with the law and the state. One wonders what the ‘abhorrence’ towards the (consensual) act (couched as ‘an act of sexual assault’) seeks to repress? What ‘disastrous consequences’ were to follow by acknowledging the consent of the minor, save the disruption of the normative social order maintained through sexual stratification?

 

The court found it to be a fit case to invoke retributive judicial wrath against the accused. Extensively quoting from an unrelated case,¹⁸ the court observed:

‘We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment, the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences, etc. would clearly fall in this category. After all, justice requires long-term vision.’¹⁹

 

The court further stressed the importance of regulated and guided judicial discretion such that the judiciary should show no undue mercy. The most glaring part of the decision is when the court spelt out its retributive sentiment in the name of the ‘victim’ (who in this case was the consenting girl). Drawing from Sumer Singh v. Surajbhan Singh,²⁰ the court approvingly quoted:

‘While imposing the sentence it is the court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity […] But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one’s past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society.’²¹

 

One is left to wonder who the real victim was. To whose feelings of agony and anguish did the court really respond? Whose cry for justice was it? What was the injury that could only be compensated through retributive and vengeful legal response? In imagining the consenting girl as victim, isn’t her (sexual) agency completely erased? Or, was it the girl’s family on whose behalf the court was seeking revenge?²²

Why did the court foreclose all possibilities of acknowledging the minor girl with desire and agency? Why did it choose to paper over the desire of the girl under the rhetoric of protection encoded in POCSO? Why did the court accept the collapsing of contractual age with sexual age even at the cost of life and liberty of a man whose actions were directed by mutual love and desire? And finally, what is the fear in opening up the question of age and sexuality and confronting it in its complexity?

 

In the pre-2013 legal world, when the age of consent was 16 years and the judges had the discretion in the matter of rape sentencing, there was a possibility of diluting the stringent criminal law provisions that confine a girl’s sexual agency. As is evident from various decisions of the High Courts, in cases filed by parents against the girls’ lovers, the judges could foreground girls’ agency and choice and enliven consent even in cases where the girl was a minor. For instance: ‘Although the victim girl has not attained the age of majority at the present moment, yet, she has at least reached the age of discretion to understand her own welfare which is a paramount consideration for the grant of her custody […] hereby exercising her discretion she wanted to go to her husband’s place and not to go to her father’s place.’ (Jiten Bouri v. State of West Bengal)²³

‘There is no law which prohibits a girl years from falling in love […] Desiring to marry her love is also not an offence […] If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father and joins her lover, it is no offence either on the part of the girl or on the part of the boy with whom she ran away to get married’ (Vivek Kumar @ Sanju and Anjali @ Afsanav. The State).²⁴

The above liberal view expressed by the High Courts, however, does not represent the dominant judicial position on this issue. There are a range of instances of statutory rape where the judiciary has come down heavily on the accused, despite acknowledging that the girl was a consenting party. In Mahendra Subhashbhai Vankhede v. State of Gujarat²⁵ the father of the girl (who was less than 16 years) registered an FIR against the 19 year-old appellant under Sections 363, 366, 376, 114, 377, 397 and 401 of the IPC. The appellant and the complainant’s daughter were in a consensual love/sexual relationship. According to the facts, the girl had voluntarily left with the appellant and the two had consensually stayed together for a few days till the appellant was arrested. The trial court found the accused guilty under Sections 363, 366 and 376. He was sentenced to simple imprisonment of two years and nine months and a fine since ‘this case was a love affair involving young adolescents, therefore severe punishment would not be feasible.’ On appeal, the High Court enhanced the punishment of imprisonment to seven years and ordered an additional fine.

 

The Supreme Court upholding the appeal against the enhanced sentence by the High Court, made the following observations: ‘In this case at hand, there is no dispute as to the fact that the accused was nineteen years of age at the time of the incident. Additionally it is borne out of the record that the accused and the girl had a love affair and she had left her parent’s house voluntarily without any force. Further it is pointed out that both of them stayed together for around ten days and the nature of sexual intercourse was consensual.’²⁶

The court also carefully recorded that the reduction in sentence is only done on account of it being a pre-2013 complaint: ‘In consideration of peculiar facts and circumstances herein, and as the incident relates to the date prior to the amendments of IPC which came into force on 03.02.2013, and for special reasons sentence less than seven years was imposable, we think that the trial court has rightly imposed a lesser sentence. It is to be noted that after the High Court had enhanced the sentence, the accused has further undergone a sentence of six months (in all more than three years) which we feel is sufficient to meet the Criminal Law Amendment Act, 2013, No. XIII of 2013 (w.e.f. 03.02.2013) ends of justice.’²⁷

It is clear that in the post-2013 scenario, owing to the statutory requirement, judicial discretion to reduce the sentence cannot be exercised even in consensual cases of statutory rape. In the name of protecting young girls, the amendment has tightened the noose of sexual governance by family, community, the police, the law and the state, stripping minor girls off all sexual agency and turning young boys in consensual sexual relationships with minor girls into rapists who deserve no mercy.

 

Two years later, on 17 October 2017, the Supreme Court in a highly celebrated decision of Independent Thought v. Union of India²⁸ held that sexual intercourse between a man and his wife aged between 15 to 18 years is rape. The judgment which was prospective in effect, thus read down the marital rape exception. The state defended the exception on the grounds that child marriage, though illegal vide Prohibition of Child Marriage Act (PCMA), continues to be a stark reality and the sanctity of the institution of marriage needs to be preserved. Rightly rejecting both these arguments, the court declared the exception arbitrary and discriminatory and thus violating Articles 14, 15 and 21 of the Constitution.

The court refrained from making any comments on the marital rape exception; instead, it framed the issue in reference to the ill effects of the practice of child marriage. It emphasized that child marriage violates the human rights of a child and is particularly detrimental to the rights of the girl child, the right to bodily integrity, reproductive choice and ‘the right to develop into a mature woman’, amongst others.

 

Through this decision, the court sought to address a glaring anomaly in the age of consent law: while the Prevention of Children from Sexual Offences Act (POCSO) 2012, prescribes the age of consent as 18 years for both male and female, the rape law provision in the Indian Penal Code postulated 15 years as the age of consent for married girls. Thus, in law, consensual sex by an unmarried girl below 18 years was deemed to be without consent, but if the girl was married, even when she did not consent to sexual acts with her husband, it was presumed to be consensual. In other words, a girl below 18 years, otherwise unable to give consent, was presumed to have consented to her husband for all sexual acts, at all times. This discrepancy, the court held, was preposterous given the ‘interest of the child’, especially the girl child. Moreover, such inconsistency could not stand especially in view of Section 42A of the POCSO which provides that in case of any inconsistency, the provisions of POCSO would override other laws.

 

According to the court, the legislature is categorical and unambiguous that anyone below the age of 18 years is a child. The increase in the age of consent to 18 years in the 2013 criminal law amendments is in tune with various other enactments such as the POCSO, the Juvenile Justice (Care and Protection) Act, the Protection of Women from Domestic Violence Act, the Majority Act, the Prohibition of Child Marriage Act, the Guardians and Wards Act, the Indian Contract Act and many other laws.

While this decision has been applauded and seen as making a dent in the marital rape exception, it also remains embedded in the larger objective of the regulation of female sexuality. It is important to note that in all its talk of the rights of the girl child, there is no mention at all of the right to sexual agency, within or outside marriage. In fact, the court yet again uncritically buys into and consolidates the notion of a child/adolescent as an asexual being, also problematically encoded in POCSO, and the girl/woman as mere object of male sexuality and not the subject of one.

The slippages and contradictions in the court’s understanding of the figure of the (girl) child are too glaring to be overlooked: while Justice Madan Lokur approvingly cited a study by the Government of India on child sexual abuse stating that ‘[m]inor girls have not achieved full maturity and capacity to act and lack ability to control their sexuality,’²⁹ concurring Justice Deepak Gupta emphasized that ‘[t]he girl child must not be deprived of her right of choice…[and] her right to develop into a mature woman.’³⁰ Both judges subscribe to the age of sexual consent as postulated in POCSO.

 

In its zeal to save the girl child from the oppression of marital sex, the court sidetracked the issue of familial violence, through age of consent laws, on adolescents (evident in Satish above) who sexually express themselves. The slippages in lacking ‘the ability to control their sexuality’ (which admits to sexual desires below 18 years) and the question of ‘choice’ (which does not specify choice of what and surely must include the right to sexual expression before and outside marriage) are smothered by the rhetoric of victimization with no serious thought to the sexual agency of the young and further strengthens the idea that a girl below the age of 18 years is incapable of consent.

For the court, there is no space for sexuality outside marriage. By collapsing all sexual intercourse into intercourse within heterosexual marriage, the court left no space for non-procreative, out-of-marriage sex between young people, which interestingly is seen as a threat to the state.³¹ Sexual intercourse even within marriage is reduced to the economistic logic of a burden on the nation: ‘The social cost of a child marriage (and therefore of sexual intercourse with a girl child) is itself quite enormous and in the long run might not even be worth it. This is in addition to the economic cost to the country, which would be obliged to take care of infants who might be malnourished and sickly; the young mother of the infant might also require medical assistance in most cases. All these costs eventually add up and apparently only for supporting a pernicious practice.’³²

Thus, the court neatly sidesteps both the issue of the mental and physical costs of marital rape that are borne by women above 18, in the artificial distinction they create between marital rape victims above 18 years and those less than 18 but, more importantly, the question of any sexual agency both within and outside of heterosexual marriage and certainly not below the age of 18.

 

At best, this decision is a step towards the abolition of hetero-sexual child marriage (the court calls upon all state legislatures to follow the example of Karnataka and declare child marriages to be void ab initio). However, it would be fallacious to conclude that it has created a dent in the marital rape exception, even though the marital rape exception in criminal law is read down in the specific case of child marriages.

The reading down of the spousal exemption clause is not driven by the desire to accord minor wives equal rights as subjects or partners in the marriage but because the minor wives were not really wives in the first place (Justice Gupta always used the terms wife and husband in quotation marks to refer to marriages of girls less than 18 years, suggesting they are not really wives and husbands). They are sexless children on whom sexual intercourse will be an act of violence with the possible unfortunate effect of malnourished children.

Despite the language of choice, this is not about choices before the girl as an independent subject. She is merely the object of male sexuality, not ready for sexual activity and the reproducing of children just yet. What the court naively termed as mere inconsistencies in different legislations on the age of consent and marriage, is actually reflective of the state’s overt interest in the preservation of the institution of heterosexual marriage as the only vocation for the girl/woman, on the one hand, and the regulation of all young, especially female, sexuality on the other.

While the marital exception (even for child marriages) is crafted to safeguard the patriarchal and sexist logic of the institution of heterosexual marriage, the increased age of consent only reflects the anxiety of the state around adolescent and child sexuality and not any concern for the choices or sexual agency of the young, especially girls/women. Throughout the judgment, the discussion on the age of consent has been tied to adulthood in relation to marriage, completely erasing questions of the sexual agency of the young, especially girls and women who are, once again, mere objects of the law, both within and outside marriage.

 

There is no serious reflection on the consensual capacities which determine the age of consent. The debates and discourses around age of consent hardly raise the question of what children desire, and when they acquire the capacity of understanding and dealing with their desire.³³ Even as the age of consent is part of a broader penal policy that seeks to protect vulnerable populations (innocent children) from dangerous predators,³⁴ the discussion proceeds without reflecting on the figure of the child.

Often the child himself becomes a predator to be hunted down when he³⁵ commits an offence that shocks the ‘collective conscience’ of the society. In a blanket denial of sexual agency to the young, no distinctions are made between different age groups even as other laws recognize varying vulnerability of different age groups within the category ‘child’.³⁶

 

Why, one may ask, in sexual matters is the age of consent 18 but when the question is of imposition of criminal culpability, it can be 16?³⁷ Why is it that law denies (sexual) agency to a desiring child but affixes criminal responsibility upon a delinquent child? The same contradiction is witnessed in the position of the critics of law who sought to retain 18 years as the age for affixing criminal responsibility but argued for reduction of age of consent.³⁸

 

Far from raising the conceptual question of the (girl) child as a desiring subject, judicial reason remains unaffected by the evidence of sexual agency of adolescents where law becomes a governance tool to tame erring adolescents and preserve the established social order. Flavia Agnes points out how in statutory rape cases, consent is pitted against agency, especially in the context of elopement marriages.³⁹ The choice and desire of a girl, when it goes against parental authority and familial/community norms, is contained by reframing the terms of consent.⁴⁰ In such cases, ‘consent’ gets embedded in assumptions about rational choice and parental authority, rather than choices made by women.’⁴¹ In other words, consent is no longer about women’s agency, autonomy or self-determination. It is instead determined by larger social and community based goals.

As suggested earlier, the conceptual argument will not rest the question of desire only with adolescent agency, and takes us to the fraught issue of child sexuality. Here one may ask: how will the law fathom the sexuality of the child? This is indeed a very challenging question that first and foremost requires an acknowledgment that in the current legal system, the child is erased, violently mocked and rendered mute.⁴² The child is heard and understood, if at all, only through adult categories and experience. We do not have a language where the child is not written from the perspective of the adult. In fact, the adults constantly produce the child in their own terms, for their own purposes.

 

In psychoanalytic and feminist terms, Jacqueline Rose points out that the impulse towards producing the child as free of sexual desire serves many psycho-social purposes:

‘The child victim is de-sexualized – necessarily – for there does not seem to be a readily available language in which one can talk of childhood sexuality and insist on the reality of child sexual abuse at the same time. Language itself is made innocent – since children can only be made to talk of abuse with great difficulty, it is essential to believe them when they do (in cases of alleged child sexual abuse, the idea that there might be play, fantasy or ambiguity in language is almost invariably used to discredit the child). It is essential, too, that the child’s voice be clear and unequivocal in order to lift the adult burden of disbelief. More important still, if damage to children can be shown to stem from lone abusers, then the wider culture – with its responsibilities, trials and dangers in relation to children – can be absolved. Thus childhood returns to a pre-Freudian state of sexual innocence and families, that is families without abusers, revert to the ideal.’⁴³

 

Legally as well as culturally, the emphasis on child sexual abuse is at the cost of disavowing child sexuality, as if addressing abuse requires repressing desire. The question of child sexuality is only understood in terms of child abuse where the child appears as a victim without agency or voice. Tragically, despite the protectionist rhetoric (or perhaps due to it), the law fails the abused child by burdening it, as Pratiksha Baxi shows, with the contradictory demand of speaking in adult courtrooms, using adult categories, in adult time, while simultaneously retaining childlike appearance and innocence.⁴⁴

Narratives of abuse demand a clarity and precision in language where the child speaks in terms consonant with adult conceptions. This not only implies construction of the child as asexual, innocent (without any desire) but also places huge demands on the child to establish the factum of abuse. Any trace of ‘play, fantasy or ambiguity’ negates abuse, again denying the realm of the sexual for what it is: ‘liberated pleasure beyond bounds’ but also ‘abominable transgression and destructiveness.’⁴⁵

The rhetoric of protectionism, in as much as it seeks to save the child from the sexual predator in the outside world, solidifies the illusion of family as a safe place without abusers. The challenge is to foreground all these aspects while thinking of laws for and about children. As Ashley Tellis observes: ‘Child agency and child sexuality are extremely complicated issues and demand debate and discussion, not loud claims of abuse, the demonizing of figures (the paedophile out there) and protection of the bulk of abusers (the family members in here) or the silencing of the child at the very moment when it seems to confer agency on him/her/it.’⁴⁶

 

Age of consent law is the site where the fears over childhood sexuality are made to shroud it, invisibilise it. The horror at child sexuality is so overwhelming that there is a legislative/ judicial/popular desire to penalize child sexual abuse, totally erasing the possibilities of a desiring child. Indeed, the conflation between sexual desire and child sexual abuse is predicated upon the erasure of the former at a terrible cost.

We need to shift the terms of the age of consent debate presently structured by the protectionist zeal of conservatives (to save the ‘innocent child’ from being seduced/abused) or the limited demand for a reduction of the age of consent to allow for adolescent access to marriage and freedom from the natal family.

While the law casts all children as agencyless and in need of protection from adult sexuality, Indian feminist critics of the present age of consent, in making the argument for adolescent sexual agency, end up endorsing the problematic liberal assumption that sexual consent is a direct expression of freedom and autonomy but also sidestep the idea of child sexuality altogether.

 

In 1977, a petition addressed to the French Parliament called for repeal of age of consent laws (the age of consent in France was 15 then). The arguments behind the petition were elaborated by three signatories to the petition in a broadcast: philosopher Michel Foucault, pediatrician and child psychoanalyst Francoise Dolto and gay activists, Guy Hocquenghem and Jean Danet.

Foucault argued that age of consent laws were part of a new penal system, designed for a ‘society of dangers’, with the objective of protecting the most vulnerable population from dangerous predators. He made a twofold argument challenging both the popular as well as psychiatric/psychoanalytic understanding of a child’s desire. Problematically collapsing psychiatry and psychoanalysis, he argued that psychiatrists/psychoanalysts construct their own discourse around child sexuality where the intervention of any adult will always lead to trauma and thus, they end up supporting repressive legal regimes around sexual consent. Foucault noted:

‘[Psychiatrists/psychoanalysts would argue] that children’s sexuality is a specific sexuality, with its own forms, its own periods of maturation, its own highpoints, its specific drives, and its own latency periods, too. This sexuality of the child is a territory with its own geography that the adult must not enter. It is virgin territory, sexual territory, of course, but territory that must preserve its virginity. The adult will therefore intervene as guarantor of that specificity of child sexuality in order to protect it. And, on the other hand, in each particular case, he will say: this is an instance of an adult bringing his own sexuality into the child’s sexuality. It could be that the child, with his own sexuality, may have desired that adult, he may even have consented, he may even have made the first moves. We may even agree that it was he who seduced the adult; but we specialists with our psychological knowledge know perfectly well that even the seducing child runs a risk, in every case, of being damaged and traumatized by the fact that he or she has had sexual dealings with an adult. Consequently, the child must be ‘protected from his own desires’, even when his desires turn him towards an adult.’⁴⁷

 

Foucault argued for total abolition of age of consent in favour of listening to the child. For him, the language of consent was ‘an absurdity’ to understand the erotics of a child’s relationship. Rather, he insisted on listening sympathetically to what the child has to say about the relationship:

‘Listening to a child, hearing him speak, hearing him explain what his relations actually were with someone, adult or not, provided one listens with enough sympathy, must allow one to establish more or less what degree of violence if any was used or what degree of consent was given. And to assume that a child is incapable of explaining what happened and was incapable of giving his consent are two abuses that are intolerable, quite unacceptable.’⁴⁸

While Foucault’s suggestion of ‘listening to a child, hearing him speak, hearing him explain what his relations actually were with someone’ is instructive, Rose would argue that Foucault had been reading the wrong Freud: first, in attributing to psychoanalysis a conception of child sexuality as a ‘virgin territory’ that must remain untouched by adult intervention at all costs; and second, in offering a simplistic, rather naïve, view of ‘listening’ to the child made possible with ‘enough [adult] sympathy.’

 

Rose clarifies that a psychoanalytic understanding makes it impossible to bifurcate child and adult sexuality to set them in a ‘developmental sequence at the end of which stands the cohered and rational consciousness of the adult mind’⁴⁹ – child as the point of (virgin and innocent) origin who will gradually mature into adulthood. In sharp contrast to the dominant invocations of Freud on the question of childhood, Rose instructively points out:

‘It is relatively easy to acknowledge in the child a sexuality different from our own, if we can see this sexuality as something which is simply grown out of (rather like a set of clothes). In fact, Freud uncovered in the sexual life of children the same perverse sexuality that analysis revealed in the symptoms of his patients and which was expressed indirectly in their dreams.’⁵⁰

This does not imply that there is no difference between children’s and adult’s desire. It also does not mean that children experience sexuality as adults or that there is no danger of abuse if the child ‘consents’. It instead means that in creating the myth of child’s (sexual) innocence, we (i.e. adults) only seek to confirm and consolidate our own ideas of sexual development, unified identity and subjective cohesion. Psychoanalysis, by disrupting the myth of original innocence and pointing to a continuity between child and adult sexual identity tied through the unconscious, challenges the firm ground of certitude, ‘throw[ing] into question the idea of our subjectivity as something which we can fully know, or that ultimately can be cohered.’⁵¹

 

Foucault’s reductive reading of psychoanalysis in as much as he fails to recognize the challenge that Freud presents to the self-assured idea of a stable, coherent sexual identity, blunts the edges of his own argument of listening to the child to understand her/his/its experience of (sexual) relation with someone. While Foucault was questioning the protectionist assumptions that constitute the figure of the child (that child’s sexuality can never be directed towards an adult and that a child is incapable of talking about him/herself and his/her feelings), his argument slips into ‘a kind of libertarian presumption that the child has a reserve of sexual freedom available at all times’⁵² that can be excavated by the act of ‘listening’⁵³ to him/her.

Rose warns us against the lure of the idea of listening to and hearing the child; she instead points to the difficulty, rather the impossibility, of adults listening to and understanding the child. The act of listening will always be marred by ‘the adult’s desire for the child.’ Here desire does not mean the adult sexually desiring the child; rather it ‘refer[s] to a form of investment by the adult in the child, and to the demand made by the adult on the child as the effect of that investment, a demand which fixes the child and then holds it in place.’⁵⁴

 

By fixing the child into a primitive state of innocence, the adult sets herself as distinct, evolved, rational, stable. Or, as Rose puts it: ‘Freud is known to have undermined the concept of childhood innocence, but his real challenge is easily lost if we see in the child merely a miniature version of what our sexuality eventually comes to be. The child is sexual but its sexuality (bisexual, polymorphous, perverse) threatens our own at its very roots. Setting up the child as innocent is not, therefore, repressing its sexuality – it is above all holding off any challenge to our own.’⁵⁵

Thus, listening to a child will always be an adult listening to the child. It cannot be an unmediated representation of child’s voice (if there is ever such a thing) and will invariably project the fears and anxieties of the adult onto the child.

This obviously does not mean that the adults can never understand the child but only points to the difficulty of that process. Psychoanalytically, listening practices can only be developed with immense patience and hard work that resist the urgency to find clear truth at the risk of flattening the child’s narrative by reducing it into a linear account of acts and events that happened to the child with neatly spelled out emotional responses.⁵⁶ Listening is possible only with the courage of imagining language, meaning, time in different ways: acknowledging ‘play, fantasy and ambiguity’ as opposed to certitude, finitude and stability as guarantors of truth. In other words, the prerequisite of listening is the acknowledgement of a desiring child.

 

We saw how a high age of consent in the Indian law marks a complete erasure of the child’s voice. Satish’s carceral conclusion, in abject disregard of the claims of the consensual affair, was reached by repressing all traces of the girl child’s desire. The silencing of her voice was achieved by first fixing her in the image of a child – ‘incapable of thinking rationally’ and then casting her in terms of a victim awaiting law’s retributive justice.

Wouldn’t judicial discourse change substantially if the judges had attempted to retrieve the girl’s testimony in all earnestness? Perhaps listening to the girl would have opened up the window to the background of the complaint, the violence of the family on her transgressive sexuality tamed through criminal law, the context of the love affair and its own violences, along with the limitations to her rational capacity of choice vis-a-vis her relationship with the accused. All of this would have given texture to the idea of her consent. If not on culpability (which is strictly construed as statutory rape), this understanding of sexual consent might have a strong bearing as a mitigating factor in sentencing. The girl child’s muted voice could have created space for mercy sought by the accused.

 

Similarly, the voice of the child would unsettle the smugness of independent thought. What if the (girl) child/ adolescent wanted her marriage to be recognized and supported by law? What if elopement and marriage were the only options in the wake of the constraining demands made on the right to sexual love, determined as it is by caste, class, religion, status? What if elopement and (child) marriage were expressions of freedom and sexual agency as against the violence of the family? What if the ‘running away’ was a running away from the family itself?

Listening to the ‘child bride’ when she claims to have chosen marriage to escape her family – (the choice of leaving a violent family space only to embrace another violent institution, that of marriage – perhaps will allow us to enter the structure of her (sexual) desire that finds expression only in and through the institution of marriage; it might help us understand how desire, choice and sexual agency are constrained by the imagination of sexual love in monogamous marriage.

Perhaps then we would not be able to celebrate this sexual desire and agency uncritically (unlike many contemporary feminists) and see all the dimensions of this freedom of choice; how the eloping couple in voluntarily choosing the institution of marriage, willingly embraces and succumbs to its inherent oppressive nature, in the names of love and sexual agency.

All this and more might be possible only if we take on the impossible task of listening to the child, something that Indian law is not ready to do yet.

 

* This paper was written after dozens of discussions with Ashley Tellis who not only introduced me to the work of Jacqueline Rose but also made me see the blind spots of Indian law, scholarship and child rights activism on the question of child sexuality. Tellis gave me the inspiration as well as courage to approach this issue, and also sharpened my argument, giving me extensive comments on various drafts of this paper. Amit Bindal’s comments on the first draft were very helpful in developing the structure of the paper.

Footnotes:

1. Jacqueline Rose, The Case of Peter Pan or the Impossibility of Children’s Fiction (1984). Henceforth PP. The title of my paper and its central argument is inspired by and indebted to Rose’s argument.

2. The Indian Penal Code, Section 376(3). Also see Section 376 AB where punishment for rape on a woman less than 12 years has been increased to life imprisonment or death.

3. POCSO, S. 2(d): child is any person below the age of 18 years. The act makes no distinction between adolescents and children.

4. The Indian Contract Act, 1976, s. 11 prescribes age of majority as the age of competence to enter into a contract.

5. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism. Princeton University Press, 2006.

6. ‘The Ideas Interview: Janet Halley’, available at: http://www.theguardian.com/world/2006/aug/08/gender.academicexperts (last visited on 15 April 2016).

7. Halley, Split Decisions, at p. 33.

8. Id. at pp. 342-343.

9. Flavia Agnes’s work is significant in this regard. Reflecting on elopement and marriage cases involving minor girls, Agnes asks: ‘since the girls were minors, were they juridical persons invested with the power to exercise free choice, and would the consent given by the girls to the marriage be deemed legally valid? Examining these judgments through the prism of women’s rights, could these judicial interventions in aid of minor girls be termed regressive and the demand to declare these marriages null and void be termed progressive? Could the curbing of the freedom of these minor girls to express their sexual choices by their natal families, with the aid of the mighty power of the state, in a sexually repressive society, be termed a progressive intervention?’ Flavia Agnes, ‘Controversy Over Age of Consent’, Economic and Political Weekly 48(29), 20 July 2013.

10. Jacques Derrida, The Death Penalty (Vol. II). The University of Chicago Press, 2016, p. 13.

11. Id. at p. 9.

12. See, Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law, 2013, p. 443 (fn 1). To what extent the Verma Committee was feminist, and which feminism it endorsed, is a question beyond the scope of this paper. But see, Prabha Kotiswaran, ‘Governance Feminism in the Post Colony: Reforming India’s Rape Laws’ in Janet Halley, Prabha Kotiswaran, Rachel Rebouche and Hila Shamir, Governance Feminism: An Introduction. University of Minnesota Press, 2018.

13. Proposed Section 376B(1), in cases of sexual intercourse below 16 years with or without that person’s consent, recommended minimum punishment of 10 years which may be increased to life imprisonment.

14. 2015 (3) SCALE 344, per A.K. Sikri and Dipak Misra J.J., A comment on this case appeared in the Indian Law Institute’s yearly publication, Annual Survey of Indian Law. Latika Vashist, ‘Women and the Law’, Annual Survey of Indian Law, LI, 2015, p. 1057.

15. Satish Kumar, para 13.

16. Satish Kumar, paras 15-16 (emphasis mine).

17. See Pratiksha Baxi, ‘Habeas Corpus: Juridical Narratives of Sexual Governance’, Working Paper Series, Centre for the Study of Law and Governance Jawaharlal Nehru University, New Delhi, April 2009, available at: https://www.jnu.ac.in/sites/default/files/u63/09-Habeus%20%28Pratiksha%20 Baxi%29.pdf

18. Narinder Singh v. State of Punjab (2014) 6 SCC 466, per K.S. Radhakrishnan and A.K. Sikri JJ. Here, it may be noted that this case was not one of statutory rape. It pertained to the question of compromise between parties in an attempt to murder case. Despite the aforementioned observations, the court had accepted compromise between the parties even though s. 307 IPC is a non-compoundable offence! Citing Narinder Singh in Satish Kumar is most curious because in the latter case of a consensual act of love, the court refuses to show mercy, even though for the act of violence (more specifically attempt to murder), the court had left the parties to resolve the matter amicably! The law’s fear of sexuality appears to be much more stark and pervasive than its fear of violence.

19. Satish Kumar, para 17 (emphasis mine).

20. Sumer Singh v. Surajbhan Singh (2014) 7 SCC 323, per Sudhansu Jyoti Mukhopadhaya and Dipak Misra JJ. This reference again indicates the eclecticism in legal references and the corpus of cases that form the relevant precedents in a given case. This was a case of attempt to murder where the crime was committed with extreme brutality. Perhaps this particular case did not deserve judicial mercy but to lift the reasoning and extend it to statutory rape case is beyond comprehension, unless one concludes that the brutal act of attempting to murder is legally and morally at par with the consensual sex with a minor girl.

21. Satish Kumar, para 18 (emphasis mine).

22. The flip side of this high rhetoric of protection is another kind of violence perpetrated on the child as seen in Pratiksha Baxi’s essay on the child witness. See Pratiksha Baxi, Public Secrets of Law: Rape Trials in India. Oxford University Press, 2014, ch. 3: ‘Child Witness on Trial’.

23. (2003) 2 CALLT 457 HC, II (2003) DMC 774; per Justice P.K. Biswas.

24. Crl. M.C. No. 3073-74 of 2006, decided on 23.02.2007, Delhi High Court. The case concerned elopement of a Muslim girl with a Hindu boy. The girl’s father filed a complaint of kidnapping (under s. 363 of the IPC) against the boy. Since age of consent then was 16, it was not a case of statutory rape.

25. 2017 (9) SCALE 79; per, N.V. Ramana and Prafulla C. Pant JJ.

26. Id., para 8.

27. Id., para 9.

28. MANU/SC/1298/2017. Previously appeared in Latika Vashist, ‘Independent Thought v. Union of India: A Critical Comment’, Delhi Journal of Contemporary Law I, 2018, pp. 120-122.

29. Id., para 16 (Lokur J).

30. Id., para 70 (Gupta J).

31. Id., para 25 (Lokur J): ‘There is a plethora of material to clearly indicate that sexual intercourse with a girl child below the age of 18 years (even within marriage) is not at all advisable for her for a variety of reasons, including her physical and mental well-being and her social standing – all of which should ordinarily be of paramount importance to everybody, particularly the state.’

32. Id., para 26 (Lokur J). The judge also highlighted the economic cost of child marriage as indicated in ‘Economic Impacts of Child Marriage: Global Synthesis Report’, June 2017.

33. See generally, Mathew Waites, The Age of Consent: Young People, Sexuality and Citizenship (2005), arguing that in the age of consent debates in the UK, children’s voices were largely absent.

34. The proposals of creating sex offenders’ registry, petitions for increased punishments in sexual crimes against children, legislative amendments to this end, are driven by the same objective.

35. The juvenile is generally a ‘he’ – both empirically and in law’s imaginative fold.

36. See for instance, Juvenile Justice (Care and Protection of Children) Act, 2015; The Child Labour (Prohibition and Regulation) Amendment Act, 2016.

37. Juvenile Justice (Care and Protection of Children) Act, 2015, s. 15. The amended juvenile justice law, in case of a ‘heinous offence’ committed by a child who is above 16 years, requires that juvenile justice board to conduct ‘a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.’ In such assessment, the board ‘may take the assistance of experienced psychologists or psycho-social workers or other experts.’

38. In this regard, see the position of feminist legal scholar and child rights expert, Ved Kumari. She suggests: ‘Children aged between 16 and 18 can distinguish right from wrong, but their ability to control risk- and pleasure-seeking behaviour is very weak. Adolescent brain imaging and monitoring have found that the part that promotes risk-taking behaviour is much more developed than the part that controls those instincts. In the absence of sufficient social guidance and supervision from parents as well as from the state, adolescents are even more vulnerable to the pressures of their brain. Adolescents cannot be dealt with like adults as their brains at that age are not like adults.’ Besides problematically relying on brain science, Kumari (in contrast to Flavia Agnes) views parents’ and state’s ‘guidance and supervision’ as benign, not controlling or regulatory. Again, the conceptual argument for reduced age of sexual consent on the one hand, and higher age of responsibility on the other, is absent. Reliance on brain science does not tell us why adolescents who are exploring their sexuality should be left outside the control of the family and state. Ved Kumari, ‘Not a Grown-up Debate’, The Indian Express, 24 July 2014. On age of consent, Kumari’s position is outlined in Also see, Kaunain Sheriff M. and Abantika Ghosh, ‘Explained: What Madras HC Suggested on Age of Consent and Age Gap, and the Implications’, The Indian Express, 30 April 2019.

39. Flavia Agnes, ‘Consent and Controversy’, The Indian Express, 12 May 2012.

40. A recent study showed that of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with ‘breach of promise to marry’. Rukmini S., ‘The Many Shades of Rape Cases in Delhi’, available at: http://www.thehindu.com/data/the-many-shades-of-rape-cases-in-delhi/article6261042.ece (last accessed on 10 April 2016).

41. Agnes, ‘Consent and Controversy’,op.cit.

42. Baxi, Public Secrets of Law, supra note 22.

43. Rose, PP, p. xi.

44. Baxi, Public Secrets of Law, supra note 22.

45. Ruth Stein, ‘The Otherness of Sexuality: Excess’, Journal of American Psychoanalytic Association, 2008. Cited in Nilofer Kaul, ‘The Long Shadow of Guilt’, in Pankaj Butalia, Dark Room: Child Sexuality in India. Harper Collins Publishers, 2013.

46. Ashley Tellis, ‘The Paranoia and Cowardice Around Child Sexual Abuse’, unpublished article. Also see, Ashley Tellis, ‘Understanding Child Sexuality’, fountainink, 4 July 2015.

47. ‘Sexuality Morality and the Law’ (translated by Alan Sheridan), in Lawrence D. Kritzman (ed.), Michel Foucault: Politics, Philosophy, Culture: Interviews and Other Writings. Routledge, New York,1988, pp. 276-277.

48. Id. at p. 284.

49. Rose, PP, p. 13.

50. Id. at p. 14.

51. Id. at p. 15.

52. Judith Butler, ‘Sexual Consent: Some Thoughts on Psychoanalysis and Law’ 21(2) Columbia Journal of Gender and Law, 2011, p. 14.

53. For Butler, the practice of listening to the child is not based on the liberal idea of consent or a simplistic libertarian understanding of desire as an act of choice. Her position, arrived at through a psychoanalytic understanding of child sexuality, acknowledges the trauma of sexuality for the child: ‘the psychic repercussions of ambivalence, shame, and unknowingness, and the particular tensions that can and do emerge when one wants that one does not choose, or one chooses what one comes not to want very much, or when sexuality is itself animated without knowing precisely what or how one wants.’ It ‘does not assume that the child is, as it were, a tiny liberal, epistemologically equipped with a translucent window that opens upon the domain of true desire and choice at a very young age.’ ‘It only presumes’, Butler clarifies, ‘that the speaking of the child is one way of trying to make sense of desire and choice on the condition that someone else is actually listening. The speech is given over to someone else, and that someone else must receive it. Only within the context of this scene of listening does something begin to be fathomed and articulated. That process […] is very different from the one that either assumes in libertarian fashion that the subject has a fully lucid and transparent relation to desire and choice or that the subject is unable to speak, and that the law must speak in his or her place.’

54. Rose, PP, at pp. 3-4.

55. Rose, PP, at p. 4.

56. Structurally, we might have to rethink the foundation of children’s laws, the architecture of children’s courts and the logic of procedures that currently occupy the thinking around child victims. For now, these issues are beyond the scope of this essay.