The debate in India surrounding reforms to the sexual violence laws are a reflection of the changing mores in Indian society. With economic liberalization in 1991, a strong middle class with access to new goods, movies, and ideas has emerged. As a result of the mass protests in the aftermath of the brutal gang rape and death of Jyoti Singh Pandey, the President signed an Ordinance reforming the sexual violence laws on February 3, 2013. (The Ordinance took some provisions from an amendment to the Indian penal code that was pending in Parliament prior to the gang rape and adopted some provisions suggested by the Verma Committee report, but rejected other important provisions from that committee. The Verma Committee was formed by the government after international and national attention focused on the issue of gender-based violence). Article 123 of the Indian Constitution permits the President to put into place laws that have the weight of an act of Parliament when Parliament is in recess. But the Ordinance expires on April 4 unless Parliament adopts it or an amended version of it. The real deadline they are racing against is March 22 because Parliament is in recess again after that.
Key areas of disagreement such as the marital rape exemption and the availability of the death penalty in some cases of rape remain. Yesterday The New York Times India blog highlighted one issue of debate — whether the age of consent for purposes of the statutory rape provision should be 18 or 16. The Ordinance placed the age at 18 but prior to that it was 16. The new bill that is being considered seems to have lowered the age of consent to 16.
It is some prominent feminist lawyers that have argued in favor of lowering the age of consent. Indira Jaising points out that “[i]t is quite normal for people to have sexual relations at 16 or 17 years of age. . . . How can we make illegal what is normal?” Additionally, Flavia Agnes pointed out in an article that appeared in Asian Age on December 23, 2012 that “one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes.” Thus, if the age of consent was increased, it would give parents more opportunities to mis-use the law.
The Ministry of Women and Child Development is opposed to reducing the age of consent because of the fear that it would conflict with the the Protection of Children from Sexual Offences Act, 2012, which raised the age from 16 to 18. In many countries, including the United States, it is not unusual to have different cut-off ages for various purposes–e.g., the age when a person is tried as an adult, the age when a person can legally bind herself to a contract, and the minimum age of marriage.
Historical statutory rape laws were gender-specific–protecting only women as victims. Preserving the virginity of girls was the goal. The well-known 1981 U.S. Supreme Court case — Michael M. — upheld gender-specific statutory rape laws in California finding that the state had a legitimate interest in preventing teenage pregnancies. Despite this, most U.S. states moved towards gender-neutrality in statutory rape laws. There still remain many problematic features of statutory rape law in the U.S. — e.g., the “promiscuity defense” is recognized by some courts as a defense to a charge of statutory rape.
In the 1970s and 1980s in the United States when rape laws were being reformed in many states, liberal feminists advocated for “consensual sex” exceptions and “age-span” provisions, which de-criminalize consensual sex between people below 18 (but above a certain age) so long the ages of the people are within a certain range of each other. For example, if the age-span was 4 years and the age of consent was 18, a 21-year old would not be subject to criminal charges for having sex with a 17-year old. This still protects young people because it puts the burden on the person who is the same age or older to prove that the sex was consensual.
According to Carolyn Cocca, age-span provisions attempted to shift the underlying premise from protection of the chastity of a girl to the protection of younger people from the undue influence of older people. Thus, the harm that was thought to be prevented is not sexual activity, but sexual activity between a person who has an unequal power relation (older person) with another person (younger person).
A consensual sex exception and an age-span provision would address many concerns raised in this debate in India. It would not allow a 40-year old to argue that sex with a 16- year old was consensual. It would be consistent with promoting the right to sexual expression among young women and men. It would address the concerns of those who worry that a lower age of consent would increase the parent’s miss-use of the law to prevent inter-caste and other relationships.
Some in India believe that de-criminalizing sexual relations suggests that society is promoting sex among children below 18 years of age. For example, a prominent Indian Supreme Court lawyer says that lowering the age of consent to 16 when the minimum age of marriage is 18 asks kids to “please have premarital sex till 18 and then get married.” But de-criminalizing consensual sexual relations among people below 18 (but above a certain age) doesn’t mean that the law is encouraging them to have sex. It just means that they won’t go to jail for doing it.
IntLawGrrls 
Great article, Professor Kalantry. It is always interesting to see the intersections of law and social change. At times the law is ahead of the changing norms and in those cases it is the actual intent (thankfully) to make illegal “what is normal” (i.e. laws criminalizing intimate parter violence and protecting victims). At other times, social mores lead and the law becomes archaic and can lead to rights violations and a tool for social control (i.e. statutory rape age of consent laws as discussed above). This issue underscores the need for laws and social movements to continue to evolve and meet the needs of society. If not, the law as an institution becomes at worst illegitimate and at best irrelevant to peoples’ lives.
Well said Professor Kalantry. Decriminalization of sexual behavior between consenting young people (above a certain age) does not “promote” sex among children just as decriminalization of laws restricting access to abortion does not “promote” abortion. Rather both recognize and respect the autonomy of women (even young women) to make intimate sexual and reproductive choices without interference from the state. In both cases, education and information concerning sexual and reproductive health, including information on contraceptives and family planning, are critical to ensuring women make fully informed, safe and healthy decisions. In addition, the criminalization of abortion and consenting sexual behavior does not prevent such behavior from occurring; it merely forces it underground. In the case of the criminalization of abortion, this results in unsafe abortions accounting for nearly 13 per cent of all maternal deaths globally and a further 5 million women and girls suffering short- and long-term injuries due to unsafe abortions. In the case of the criminalization of sexual relations between consenting men, this results in decreased access to preventative health goods and services and life-saving medicines for gay men living with HIV/AIDS. Lastly, Ms. Jaising raises the core concern justifying use of the criminal law to regulate sexual behavior involving young people: the power-imbalance inherit in relationships involving young people and significantly older partners. When this age disparity is not present, use of the criminal law to regulate such behavior may no longer be justified. This is why age-span provisions are so important.