“Sex Mere Tann Mein Hai”

There is a raging debate in the country now about what should be the minimum age to have sex. This is part of a proposed Bill drafted by a Parliamentary Standing Committee to prevent sexual assault and molestation against minors. Interestingly, what started off as a law that would protect minors against rape and harassment by adults, has boiled down to the question of what is a good age for two consenting people to start having sex. At the very outset, this logic is flawed. Forced sex and consensual under-age sex are not one and the same (duh!). The laws that govern the former cannot be used to incriminate the latter. Just another example of the aptitude levels of our lawmakers.

The lawmakers have raised the age for legal consensual sex to 18 (the initial proposed age was 16). So two 16-year-olds having consensual sex will amount to statutory rape and will be subjected to the same punishment as a rape demands. Sorry if I missed the point here, but who is raping whom in this case? Predictably, child rights activists, NGOs, teachers, researchers and the “thinking” community of the country have lashed out against this “regressive” legislation. Newspapers are running articles and opinions every day decrying its absurdity. And while I join them in decrying the punishment this law entails, I am starting to wonder if anyone is stepping back to consider the imminent repercussions of the reverse (they shouldn’t even BE part of the same law to begin with, but now that they are, what does it mean?).

The legal technicalities aside, the larger conundrum is whether Indian society is ready to deal with two 16-year-olds having sex. The naysayers opine that this is “but natural”, this is what teenagers are thinking about and are prone to do anyways. Here’s my question to them – why restrict the 14 and 15 year olds then? Why not let them have their fun too? If we were living in a society that allows us to do everything we are thinking about, then even adults should have a lot more privileges than they do today. I am surprised that child rights activists are siding with the idea of almost “pushing” anyone 16 or above into a room and saying “go do it”. And while it’s great to let young people express themselves “to the fullest”, here’s the other side of what it can lead to.

Firstly, we have to realize that laws are deterrents. They don’t guarantee action, and they definitely do not change mindsets. With this law, I don’t see the father of a 16-year-old telling his daughter on a Friday night – “Ask that guy out, my child, and make sure you have fun *wink*”. Nor do I see a majority of Indian parents sitting their children down and talking to them about the need for protection and restraint and the possible risks of an impulsive action. Moreover, the fear that activists have of youngsters being incriminated unfairly for sexual acts still remains. The government has still not been able to act against khap panchayats that order killings of consenting adults from different castes who choose to get married. If we have not been able to protect our adults, how does it seem different from protecting our children? An analogy here is that of the decriminalization of sexual intercourse between two consenting adults of the same gender (yes, gay sex) that came about with the 2009 ruling of the Delhi High Court and has since been upheld by the Supreme Court and the Government of India. So basically, gay sex in private is now legal in India. What essentially has changed though? To my knowledge, people who supported this continue to support it, but people who were against it, continue to keep to their stand; people who were neutral continue to refuse to take a stand, while people who are ignorant or in denial of homosexuality do not think differently. The point here is that a law does not change thinking, and much more needs to be done to make a society ready to accept a transformation.

Secondly, the naysayers are doing what we in developing countries do best when pushing for a seemingly “progressive” law – citing examples of developed (read: Western) countries. It is being said again and again that the minimum age in developed nations for consensual sex is 16, thereby implying that we should toe the same line. What we fail to take into account are the social issues Western countries are faced with because of these laws. Do we have the resources and mindsets to counter the bane of single motherhood, something that the west is increasingly grappling with (24% of the 75 million children in the USA belong to single-mother families; 70% of children in single-mother families are classified as low-income or poor)? Given that in India, people still have to do confidence-building drills before walking into a chemist’s store and asking for a pack of condoms (if they do so at all) and school teachers still blush when lecturing on the reproductive system (leave alone talking about sex), what is the guarantee that we will not open ourselves up to a deluge of single mothers by legalizing teenage sex?

Finally, is anyone thinking about HIV/AIDS? A 2010 UNAIDS progress report on India claims that 2.27 million people in India were HIV-positive in 2008. Of these, a mind-boggling 87% transmitted the disease through unprotected heterosexual intercourse. 35% of this affected population is below 25 years of age, clearly indicating that there is a huge incidence of unprotected sex among our youth. These are numbers to think about when making this law.

If we think we are prepared to tackle all of the above, then sex should be a fundamental right for anyone post-puberty. The question is – between the idiocy of the government and the obtuse activism of the naysayers, who is going to take the responsibility of carving out a middle path?





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