How an Indian law brands innocent young boys as sex offenders

Recently, it was reported that a 12 year-old boy from Kerala, India has been charged with sexual abuse after it was found that he had fathered a child with a 16-year-old girl. The birth had taken place in November 2016 but the police were waiting for a DNA report. It may seem obvious to most people that the boy was sexually exploited by the older girl and she got pregnant for not using protection. But the police decided to file a case against the boy under the Protection of Children From Sexual Offences (POSCO) Act, 2012. Here, a probable victim of sexual abuse is being labelled as the perpetrator. However, it is more common that when two teenagers have consensual sex, the boy is charged with statutory rape under this law.

The POSCO Act, 2012 was originally created to protect minors from sexual abuse. The original draft did not criminalize underage sex if both participants were consenting minors. But a Parliamentary Standing Committee changed it before it was tabled. Furthermore in 2013, after the much publicized New Delhi rape case and the panic that followed, the age of consent was raised to 18 from the previous 16. This also increased the number of cases being filed under POSCO Act against teen-aged boys. They were accused of statutory rape even when both participants were consenting.

In a mostly conservative country like India, frequently such cases filed by parents of the girl to protect their reputation. It is better for them that their daughter is seen as a rape victim as opposed to a fornicator. Such parents may pressurize their daughter to claim in the court that she had not consented. It such cases that burden of proof that he is innocent falls on the boy. In India, cases of elopement are also very common because parents do not permit inter-caste or inter-faith love affairs. In such cases, parents of girls frequently report their child as underage to the police so as to acquire their aid in finding their runaway child. When they find the couple, the man is thus charged with rape by the police.

In addition to the POSCO Act, the Juvenile Justice (Care and Protection of Children) Bill, 2014 says that a minor perpetrator of “adult crimes” like rape, murder, dacoity, kidnapping, drug trafficking and sedition should be tried as an adult. In the recent case, the boy will be presented before a Juvenile Justice Board for adjudication. Since he is 12, he will not be passed on to an adult court. But if he were 16-18, the Juvenile Justice Board may have sent him to an adult court to be tried as a sex offender. If convicted such a boy may end up in prison instead of a juvenile reform home.

A doctor handling the recent case has commented that the boy probably had undergone “precocious puberty” implying that a 12-year-old boy is too young to undergo puberty, basically contradicting most medical texts which say 12 is the age of puberty for boys. This shows that kind of hands in which the now surely traumatized boy is in.

Frequently activists hail the POSCO Act for being gender neutral as it protects both boys and girls, and both men and women can be charged under it. However, it is rarely implemented in that manner. Last year in July, a rare POSCO Act case was filed against a 26-year-old woman for having sex with a 17-year-old boy. The boy had met the woman on the internet and she had lured him to a hotel despite knowing that he was underage. It may have been an extortion scam, such occurrences are quite frequent in India. Later, she filed a rape case against him which the police accepted. But the police were also kind enough filed a rare statutory rape case against the woman too.

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