First things first, sex with a minor (anyone under the age of 18) is a criminal offence in India and the ‘perpetrator’ can be charged, tried and sentenced to jail under the provisions of the Protection of Children from Sexual Offences (POCSO) Act. It does not matter if there is ‘consent’ from the minor because a consent under law is only considered consent if it is from a person 18 years and above. So even if the sex is consensual, the adult partner can be considered a perpetrator in this scenario.
The POCSO Act offers protection to children and minors against sexual harassment, sexual assault as well as pornography. But it would also cover all instants of a sexual activity with a minor because a consent is not considered consent in a minor’s case. And any sexual activity without consent is considered sexual abuse or rape under law.
So any adult who indulges in a sexual activity (details below) with a minor can be sentenced to 10 years or more years in jail, along with a fine, depending on the severity of the crime.
The sentence is usually more severe if the minor is 16 years of age or less.
The actions that can attract punishment under the provisions of this Act include:
- ‘Penetrative sexual assault’, which includes penetration of the penis into the vagina, urethra, anus, or mouth of a minor
- Asking a minor to perform the same acts
- Inserting a foreign object into a minor’s body
- Applying one’s mouth to a minor’s body parts or giving oral stimulation
- Aggravated sexual assault – sexual acts resulting in injury or damage to the victim or acts performed by people in a position of authority such as family members or public servants, police personnel and members of armed forces – may invite the death penalty
- Making a minor feature in pornographic material or sharing such materials with a minor is also punishable under this act
- The consent of a minor is not considered valid in the eyes of the law.
But I am an adult….
If you’re an adult (18 years or above) pursuing a sexual relationship with a partner who is a minor, the act will be considered as rape under the Indian law; even if you are romantic partners. While this provision offers much-needed protection to minor girls who are increasingly at risk of sexual abuse, it can also complicate matters of sexual intimacy between consenting partners who fall in different age groups.
For instance, if a man or a woman who is above 18 – even if they’ve just entered into the adult category – has sexual relations with a partner who is below 18 years of age, the person can be tried as a sexual offender.
When the law is abused
In a country like India where parental pressure regarding romantic relationships can be excessive, and pre-marital sex a taboo, this provision is unfortunately often used to ‘protect the family’s image’ or ‘get back at a minor’s romantic partner’.
There is, however, legal precedence where such a case was taken out of the purview of the POCSO Act. Referring to the the age gap, along with the age of consent, it was said a sexual relationship established between a minor with a partner who is also a teenager or just a few years older than them cannot be categorised as sexual assault.
Delivering his order on a recent such case, Madras High Court justice N Anand Venkatesh stated, “What came to be a law to protect and render justice to victims and survivors of child abuse can become a tool in the hands of certain sections of the society to abuse the process of law.”
But such nitty-gritty essentially boils down to a court’s interpretation of the law. In essence, the consent of a minor is considered invalid and the adult partner can well be tried for rape or sexual assault.
What if both are minors?
Sex between minors does not fall in the purview of the POCSO law. If both partners are minors, any complaint in the matter is registered under the provisions of the Juvenile Justice (Care and Protection of Children) Act. Such a case would then be heard by a Juvenile Justice Board, which would include psychologists and social workers, to decide whether a juvenile criminal in the age group of 16–18 should be tried as an adult or not. And if not, what line of action or support would be considered for the involved minors.
But he/she sent me the video!
The POCSO act is not limited to sexual acts performed with a minor. Making a minor feature in pornographic content, sharing or showing such content to a minor, failing to report pornographic material that objectifies a minor, making lewd remarks or sexual overtures, sharing sexual jokes or messages, as well as the intent to perform such acts, can also be penalised.
In a nutshell, engaging in a sexual act or making sexual advances toward a minor – even if you have their ‘consent’ in the moment – can land you in jail if they or their guardian decide to take action in the matter.
To protect the identity, the person in the picture is a model.