POCSO Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need and Legal Obligation for the Adolescents in India

Abstract

Background: Exploring sexual aspects and engaging in sexual act with the romantic partner is a normal process with its developmental significance, especially during adolescence. In India, under the Protection of Children from Sexual Offences (POCSO) Act, 2012 consensual sexual act is prohibited and punishable with or among children below the age of 18 years as they are legally not in the age to give consent which is contrary to their developmental need and sexual rights. Therefore considering the sensitive nature of this issue, critical review is worthwhile to make keeping socio-cultural underpinnings in mind. Methods: In this paper, an attempt was made to review the influence of the POCSO Act, 2012 on the sexual rights of the adolescents and need for evaluating the concept of the consensual sexual act from a legal perspective in India. Results: A debate is made around the concept of consensual and nonconsensual sexual act among adolescence tapping the relevant aspects including, developmental need and legal obligation in case of consensual sexual act; ethical dilemma among stakeholders in the judiciary process; and difference in the trajectory between the consensual and non-consensual cases in reaching the child protection mechanisms. A detailed discussion is generated from the authors' reflection of the review. Conclusion: There is a great need for evidence-based policy formulation within the socio-cultural framework, in order to protect the best interest of the children as assured in the POSCSO Act, 2012.

A Comparative Review of UNCRC and Indian Legislation from the Child Mental Health Perspective

“…While this might be appropriate for some laws, such as the RTE, that address early childhood education, it may criminalize typical adolescent phenomena such as consensual sexual exploration. 28 This may lead to confusion in implementing a specific policy that provides protection and services to children. The laws are also silent regarding consent for medical procedures and engagement in research commensurate with the child’s developmental abilities.…”

Legal Complexities of Adolescent Relationships: A Study of Protection of Child Sexual Offense Cases in India

“…There is limited literature on the legal implications of cases registered in India, and there is no literature available that exclusively discusses the legal implications of consensual sexual acts from a legal perspective [ 2 , 3 ]. The presence of this study gap underscores the need for further research on the legal difficulties encountered by adolescents participating in consensual sexual activities in the context of the POCSO Act [ 4 ]. Understanding the legal framework of teenage relationships can provide valuable insights for the development of policies and interventions to safeguard vulnerable children.…”