Sexual assault has been pushed, again, to the forefront of public consciousness. The Mumbai gangrape has shown again just how deep and how widespread the problem is but a far more low-key case in New Delhi illuminates a different aspect of the entire issue.
The judgment in that particular case, involving the acquittal of a 22-year-old male married to a 15-year-old female who testified that she had accompanied him willingly, shows just how lacking in nuance the laws about sexual assault are, and how great the need is for public debate.
The Delhi judgment was refreshingly progressive in parts.
The sessions judge, for instance, rejected the assertion that under the newly enacted Protection of Children from Sexual Offences (POCSO) Act, all sexual activity by minors was illegal. He also pointed out the importance of dealing with underage sex via education rather than legislation. But his final verdict acquitting the man was problematic.
There are several issues to untangle here: statutory rape where it concerns consensual sex with a minor above a threshold age, age proximity and child marriage.
Setting aside the fact that POCSO’s raising the age of consent from 16 to 18 was a retrogressive step, the sections of the Indian Penal Code that deal with sexual assault are significantly lacking.
Section 375(d) states that when a male indulges in sexual activity with a female “With or without her consent, when she is under 18 years of age”, it is classified as rape. Cases where there is no consent must, of course, be dealt with in the strictest manner allowable by the law.
But where consent is present and where the female is above a threshold age, a proximity clause that is, a reprieve for the partner if he is within a certain age of the female, usually 2-4 years in other countries is a must.
On the flip side, while the law is too harsh here, it is too lenient elsewhere. For instance, it does not recognise marital rape nor, as seen in the Delhi verdict, does it do enough to curb child marriage.
This lack of clarity and nuance means that it is left up to individual judges to interpret the law as they see fit. In this particular case, given that the Delhi verdict came from a trial court and thus cannot be cited as precedent, it is eminently possible that future verdicts elsewhere may contradict both its positive and negative aspects.
Thus, a judge may interpret POCSO to mean that a teenage male who has had consensual sex with a female of the same age is guilty of rape just as another judge may act with more alacrity to clamp down on child marriage.
There are no easy answers to these questions. That is precisely why a public debate something that was conspicuously absent even when as significant an act as POCSO was passed last year is essential.
Such issues cannot be addressed solely at a political or legal level. Civil society engagement, undaunted by strident votaries of a narrow vision of public morality, is a must.