Adolescents and the Production of Consent

(This piece engages with consent from another perspective from the one by S. Vinita and Sanjana Gaind reminding us just how complex and diverse these questions are.)

Raising the legal age from 16 to 18 for consensual sex, has been a major point of contention in the Criminal Law (Amendment) Bill, 2013. The legal age for consensual sex has been 16 since 1983, but in the Prevention of Child Sexual Offences Act 2012, it was raised to 18. There was some discussion on this Act and a demand to keep it 16, with feminist groups effectively countering the arguments against raising it to 18 years of age. Flavia Agnes argued that raising it to 18 criminalises consensual sexual activity putting at risk mostly boys from Dalit, marginalised and minority communities. She puts this in the context of “”elopement marriages” where in a strictly stratified society, ridden with prejudices against lower castes and minorities, a young couple who dares to cross the boundaries is severely punished.”(Agnes 2012). This generally happens in the case where the parents of the girl file a case of rape against the boy she has eloped with and get her married to a boy of their choice. In most of these cases the boys are from poor families (Agnes 2013).

Despite these arguments, various pressures lead to making 18 the legal age for consensual sexual intercourse and marriage. Strangely enough, as has been pointed out by feminists, the debate has been framed wrongly as one of Age of Consent and is more on the age of statutory rape, rather than consent. But the debate on Age on Consent is not new and it is important to historicise the debate to think about the present. Historically the debate on Age of Consent emerged in the public domain in the late 19^th century. It became prominent in colonial India in 1887 with Rukhmabai’s case where she refused to cohabit with her husband, citing, among other things, lack of consent to the marriage. The other incident in 1890 was 10 year old Phulmonee’s death through forced penetration by her 35 year old husband. In 1891, the Age of Consent Bill raised the age from 10 to 12 years of age stating that sexual intercourse with a married or unmarried girl below the age of 12 was rape and a punishable offence (Anagol 2007).

Drawing from the feminist scholarship on these debates, some of the key points that emerged out of these colonial debates on age of consent were: a tension between colonial British law and Hindu customary law; social reform and the construction of the category of the woman; the debate over the definition of puberty. In Rukhmabai’s case her caste as well as education were seen as disruptive forces and a reason for her refusal to co-habit with her husband Dadaji (Kosambi 1996; Sarkar 2007) and in the debate on Phulmonee’s case, consent came to be defined in biological terms, when the female body was biologically ‘ready’ for sexual intercourse (Sarkar 2007).

In the case where the colonial debates on the Age of Consent defined the category of woman, and the contours of what consent meant, one needs to think today what the ‘Age of Consent’ debates tell us about adolescents and consent. It is necessary to think further on the question of the production of consent and what it means for adolescent sexuality as well as the implications the new ‘Age of Consent’ will have for sexuality education. Consent has been defined in the Criminal Law (Amendment) Bill, 2013 (as passed by Lok Sabha on 19 March 2013), in the context of rape as: “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”

Consent means a communication of willingness, a communication of choice and desire. How do we communicate choice and desire? Given that the law recognises a communication of choice only after 18 years of age, how does a school-going 18 year old, ideally in the 12^th standard, communicate desire? What is the verbal or non-verbal vocabulary and language at her/his disposal which allows an expression of sexual desires to someone else? What are the social and sexual constraints which limit their daily language of communicating desire? If that is so, what then is the language of consent and can consent be taught?

I am not suggesting that young people do not give consent, they do give consent. But when they do, how do they give consent? What are the spaces for them to give consent?

Consent is deeply tied with the regulation of sexuality. Adolescents’ sexuality is deeply surveyed and controlled in schools and at home. School authorities panic when adolescents hold hands, or ‘steal’ a kiss. Counsellors are called in to talk to children about sexuality and more so, the dangers of sexuality and its ‘adverse consequences’. CCTV cameras are installed in classrooms and laboratories to monitor and to prevent young people from engaging in any form of sexual activity. This mode of surveillance is normalised by the students who don’t pay much attention to it, but find other spaces to conduct activities for which they would have otherwise been punished.

Adolescents have to constantly negotiate their ideas of sexuality with that of their families. Often there is some amount of conformism where adolescents seem keenly aware of and act within certain limits and the strict boundaries set for them. Adolescents seem to know the limits set by parents in terms of relationships, the limits in terms of access to public spaces for adolescent girls at night, in terms of dress codes and so on. Along with the tight surveillance of sexuality at home and in the school, there is a lack of dialogue about sexuality through sexuality education. The moment one forecloses all discussion on sexuality one also stalls any discussion on what a healthy sexual relationship maybe like, and thus any discussion about consent.

At the same time, here in the case of the Criminal Law (Amendment) Bill 2013, we are talking of the hypothetical consent of a young woman in a culture which tells young women to be sexually attractive but yet sexually virtuous, which tells young women to guard their reputation, which puts constant fear of being called a whore were she to express her sexuality. In such a culture, how does a young woman give consent? In cases where the school biology classes teach you that ‘the man is the active partner and the woman is the passive partner’, how does the young female student give consent? What are the ways in which adolescent female sexuality, forever suspect, has a way to express itself in the form of consent? Also, in an environment of extreme regulation, how can a young person learn or express consent?

One needs to also consider what the implications of the new ‘Age of Consent’ are for adolescent sexuality education and talking about sexuality within school spaces. Does adolescent sexuality education in India, like in the USA, now have to be framed within the abstinence-till-marriage model? And what if we talk in the classroom to children below the age of 18 in a progressive manner which recognises the possibility of them having consensual sex and respects their sexual agency? Are we then exposing them to a law that will punish them for the expression of that autonomy? What does the regressive new ‘Age of Consent’ do to the governing of adolescents below the age of 18 within school spaces? What then is the vocabulary that is taught in the classroom and outside it that allows young people a language to talk about sexuality and to express consent?

The debate is not at what age should a young person consent, but a question of if we ever want young people to consent, at any point in time, we need to provide them a space and language for it.

I would like to thank Shilpa Phadke for comments on the drafts and Anjor for some ideas developed in the piece.

References

Agnes, Flavia. “Consent and Controversy” May 2012, Indian Express.

Agnes, Flavia. “No Sex Before 18, Please” March 20, 2013, The Asian Age.

Anagol, Padma. 2007. “Rebellious Wives and Dysfunctional Marriages: Indian Women’s Discourses and Participation in the Debates over Resitution of Conjugal Rights and the Child Marriage Controversy in the 1880s and 1890s.” in Tanika Sarkar and Sumit Sarkar Ed. Women and Social Reform in Modern India: A Reader. Ranikhet: Permanent Black.

Kosambi, Meera. 1996. “Gender Reform and Competing State Controls Over Women: The Rakhmabai Case (1884-1888)” in Patricia Uberoi Ed. Social Reform, Sexuality and the State. New Delhi, Sage Publications.

Sarkar, Tanika. 2007. “Conjugality and Hindu Nationalistm: Resisting Colonial Reason and the Death of a Child-Wife” in Tanika Sarkar and Sumit Sarkar Ed. Women and Social Reform in Modern India: A Reader. Ranikhet: Permanent Black.