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Why in the news?

The lower house of France’s parliament approved a bill that would define a clear age of consent for the first time in the country’s history, setting it at 15 years

Present context:

• The proposed law, which comes after years of debate and a series of sexual abuse scandals, characterizes sex between an adult and a minor under 15 as rape, barring certain exemptions.
• The bill will now be sent to the upper house, where it is expected to be passed in April

Age consent:

• Black’s Law Dictionary defines consent essentially as a concurrence of wills, while in the Indian Contract Act it is defined as a mutual understanding of something in the same sense.
• Therefore, the phrase “age of consent” refers to an age where an individual is considered competent to understand the ramifications of partaking in sexual activity and willingly agree to the same.
• Article 12 of the Universal Declaration of Human Rights (“UDHR”), of which India is a signatory, holds that everyone has the right to the protection of the law against arbitrary interference with his or her privacy.
• Consensual sexual acts fall under the purview of right to privacy of a human being. This has been recognized under Article 21 by the judgement of a nine-judge bench of the Supreme Court in the landmark case of Justice Puttaswamy v. Union of India (2017). Considering consensual sexual acts as a crime violates the right to privacy of the minors.
• India, it has been specified in Section 375 of the Indian Penal Code, wherein it is provided that sexual intercourse with a woman under the age of sixteen years, with or without her consent shall be considered as rape, thus implying that sexual intercourse with the consent of an individual above said age shall not be punishable.
• The bill, however seeks to supersede this provision by redefining a child as “any person below the age of eighteen years”, in line with other enactments such as the Indian Majority Act, 1875, the Indian Contract Act, 1872 and the Juvenile Justice(Care and Protection of Children) Act, 2000.
• Nations such as Spain and Argentina, with the lowest age of consent in the world at 13, have enacted special provisions in order to protect minors against sexual crimes. The Spanish Penal Code provides against deceit being used in order to gain the consent of a minor, while the Argentine Penal Code applies strict restrictions for sexual activities with adolescents between the ages of 13-16

What is the current French law on consent?

• Under current French laws, there is no formal age of consent.
• This means that children can legally be considered capable of consenting to sex.
• Although it is illegal for adults to have sexual intercourse with children below the age of 15, such offences are not automatically considered rape, and are given lighter punishments.
• A rape charge –which carries a punishment of 20 years– is only considered when there is proof of “force, threat, violence or surprise”.
• Without such proof, suspects are charged with the lesser offence of sexual assault, which is punishable by up to 7 years.
• As consent by children is legally meaningful, child rape cases become exceedingly difficult to prove, since courts are faced with the tricky task of relying on a child’s testimony.
• The same happened when France’s supreme appeals court ruled that three firefighters accused of having sex with a girl when she was aged between 13 and 15 should not be charged with rape, but with sexual assault.
• Critics have long blamed the current law, as well as statutes of limitation, for hindering the prosecution of sexual abuse cases.

How would the proposed French change things?

• When the new legislation comes into effect, France will treat sexual intercourse with a minor under 15 as rape–Irrespective of the circumstances– meaning perpetrators would no longer be able to cite consent to have charges reduced.
• Adults accused of having sex with anyone under that age would be charged with statutory rape, which would be punishable by 20 years in prison.
• Such relationships would not be punishable, however, if the age gap between consensual partners is less than5 years.
• Also, those convicted of inciting children under the age of 15 via the internet to commit sexual acts now face a jail term of 10 years and a fine of 1.5 lakh euros.
• The age of consent bill comes two years after France toughened laws against sex crimes, and extended the statute of limitations for rape against a minor from 20 to 30 years.
• That period will now be extended to beyond 30 years in cases where the adult is a multiple offender; meaning the statute would kick in after the last suspected offence.

What pushed France to take this step?

• The bill follows a series of scandals that have rocked France in recent times.
• Last year, prize-winning writer Gabriel Matzneff was placed under enquiry for rape after he was accused, by a woman 36 years his junior of grooming her into a sexual relationship with him in the mid-1980s when she was 14.
• But a major push for the bill to be passed came in January this year, when prominent academic Olivier Duhamel was accused by his stepdaughter, Camille Kouchner, of sexually abusing her twin brother as a child.
• This prompted Duhamel’s resignation from the prestigious Sciences Po University in Paris.
• The scandal led to an outpouring of testimonies from women who said that they had been abused by relatives, triggering an online movement with the hashtag #MeTooIncest.

What is the law in India?

• Age of consent is defined as the age at which one is considered legally competent to consent for sexual activity.
• Owing to their immaturity of age and understanding, minors are considered incapable of understanding nature as well as consequences of their actions.
• Thus Indian law forbids sexual activity with or among, children below a specified age.
• Under the Indian Penal Code, 1860 the age of consent was only for girls and was initially pegged at 10 years.
• This was raised to 12 in 1891, 14 in 1925, 16 in 1940 and 18 in 2013.
• Sexual activity with a girl below the prescribed statutory minimum age amounted to rape, irrespective of the girl’s consent.
• We did not have any age of consent for boys, and it was only in the 21st century that our lawmakers woke up to the possibility of sexual abuse of minor boys.
• In 2012 we got gender-neutral legislation for the protection of children against sexual offences.
• POCSO fixed the age of consent for both boys as well as girls at 18.

Some cases and judgment:

• Madras High Court has been passing progressive judgments, setting examples for its contemporary High Courts. This includes the case of Arunkumar v. The Inspector General of Registration (2019).
  • The High Court held that a marriage solemnized where at least one of the parties is a transgender person, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.
• In the case of Sabari v. Inspector of Police (2018), the Madras High Court has said in passing, or as obiter dicta, that consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity.
  • Since it was said as obiter dicta, it cannot be enforced as law, but it has persuasive value for future judicial and legislative decisions. The Court considered this a logical conclusion from a consideration of ground realities and post-modern moralities of the decade.

Mains oriented question:

Consensual sexual acts fall under the purview of right to privacy of a human being What is age of consent? What is its necessities? (200 words)