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Tinker not with consent age, amend POCSO Act: Law panel

Suggests limited discretion on sentencing to spl court if there is tacit consent NEW DELHI:  The Law Commission of India on Friday advised the government not to reduce the existing age of consent from 18 to 16 years under the Protection of Children from Sexual Offences (POCSO) Act, 2012, saying else it could provide a safe harbour to coerce minors into subjugation, marital rape and other forms of abuse, including trafficking.

The Act criminalises all sexual activity for those under the age of 18 years regardless of mutual consent. To address the problem, the panel suggested giving limited discretion on sentencing to special courts in cases of mutual consent.

Carving out a limited judicial discretion at the stage of sentencing by a special court is more reasonable if consent is established, the panel said. “It has to be further ensured that such a discretionary power is provided in such a manner that it is well guided and insulated from any potential misuse as far as possible. In this context, as to when such a discretion will come into play and who will determine if at all it applies, becomes relevant,” the Commission said in its Report No. 283 titled “Age of Consent under the Protection of Children from Sexual Offences Act, 2012.”

Only a judicially trained mind can appropriately determine whether the consent was indeed free from coercion, deception, fraud or undue influence. This would require proper investigation and evidence being adduced so as to determine if any reduction in sentence is warranted, the report said.  The panel headed by retired Karnataka high court chief justice Ritu Raj Awasthi said lowering the age of consent would reduce the POCSO Act to a paper law.

“The consent of a child is no consent and reading the same would be deeply problematic... The very real possibility of young girls being easily seduced in love traps and then sold off in trafficking cannot and should not be ignored. Any element of consent can be misused and may lead to children being at the mercy of adult abusers,” it said.  The report recommended amending provisions dealing with punishment for penetrative sexual assault and sexual assault under the POCSO Act (Section 4 and 8) by adding provisions empowering a special court to impose lesser sentence in cases of tacit consensual sex by taking into consideration related factors. 

Empower spl courts Amendments suggested include allowing  special courts to impose a lesser sentence than the minimum prescribed under sub-section (1) of the POCSO Act. The decision would be based on a thorough evaluation of the facts and circumstances of each case Sex education Comprehensive and age-appropriate sex education should be made a mandatory part of school curriculum.  Children must be made aware of their body & physiological & psychological changes they experience while growing (THE NEW INDIAN EXPRESS)