It’s official. Sex between individuals below the age of 18, even if consensual, is a crime.
However, the new rules — notified on Wednesday to enforce the Protection of Children from Sexual Offences Act — failed to address how law enforcing agents can identify the accused and the victim when both the persons involved are minors. This concern was raised by several state governments.
“It is a highly complicated issue,” said a senior official from the Women and Child Development ministry. “Juvenile justice boards from each state will take a call on a case-to-case basis.”
Meanwhile, the discussion on differentiating between the accused and the victim rages on. “The one who complains first should be considered the victim,” a ministry official said. The complainant is happens to be the girl’s parents in a majority of such cases.
However, others say this would be improper because it would result in unnecessary trauma and social ignominy for the child. “Both the children should be considered as the accused, and the board should conduct an inquiry to verify the claim whether the act was consensual or not,” said a Delhi government official. If the incident is identified as a case of consensual sex, the children should be let off after counselling, he added.
The rules, however, make it clear that if one of the partners in the consensual sexual act is over 18 years of age, he or she would have to be punished in accordance with the Act.
Also linked with cases concerning sexual crimes against minors is the issue of age determination. While the rules stipulate that a government agency should conduct the test, many states want it performed under the supervision of a special court in complete adherence to the procedure defined in the Juvenile Justice Act.
Nevertheless, minors affected by sexual assaults can now claim compensation for the crime. The rules stipulate that suitable compensation, as decided by a special court, should be paid to the child. The extent of compensation would depend on the gravity of the offence, loss of education or disease, and disability or pregnancy suffered.
Providing relief to such minors, the rules also say that documentation or magisterial inquiry should not be pre-requisite for getting a victim treated at a hospital.