But activists, while generally welcoming the proposed legislation, have trouble with one of its provisions: raising the age of legal sex to 18 from 16.
The move, they caution, could push parents in a conservative country to use the new law to sanction elder children’s sexual behavior. And the police may also use the law to harass couples.
“It will lead to hundreds of complaints by parents to file reports of rape even though the child had consensual sex and no crime was involved,” said Nishit Kumar, a spokesman at Childline, a toll-free helpline for street children in distress.
Pooja Taparia, founder of Mumbai-based organization “Arpan” which works in the field of child sexual abuse, agreed, saying the law is likely to be misused by both parents and police.
More broadly, activists welcomed the bill as a needed correlative for a country with a massive child abuse problem.
According to a 2007 study on child abuse by the Ministry of Women and Child Development, over half of children reported having “faced one or more forms of sexual abuse.”
Around 8% of abuse cases are by persons known to the child in a position of trust and authority. The study also said that most cases do not report the matter.
India at present does not have a specific law to protect children from sexual offenses, despite the face New Delhi has been a signatory to the UN Convention on the Rights of the Child since 1992. Current laws guard against sex with minors but prosecutions of abusers are rare.
One of the major innovations of the new bill, which must pass both houses of Parliament before becoming law, is to set up specific courts to try child-abuse cases – getting around massive back log of cases in the normal court system.
Bureaucrats first drew up the bill in 2005 but it didn’t reach it final form until last year. The Protection of Children from Sexual Offences Bill, 2011 seeks to “protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences.”
Under the provisions of the bill, any sexual activity, even if consensual, with children under 18 years of age would be considered as rape and would be subject to prosecution.
“In many ways, it would help in fighting the cases of human trafficking and rape,” said Ravi Kant, a lawyer and president of Shakti Vahini, a human rights advocacy organization.
But Mr. Kant, like many others, said he believed the consensual age for sex should remain 16.
“We need to treat the bracket of ages 16 to 18 differently,” says Ms Taparia. “If a child is raped, then you bring it under the judicial purview, but if it’s consensual sex between two people who are both within the age bracket 16 to 18 years, then it shouldn’t be criminalized. Puberty is coming early…So it’s regressive to take the age of legal sex to 18 years.”
Mr. Kumar said India’s sexual mores are changing. “Current sexual practices allow greater sexual freedom to young adults so raising the age doesn’t gel well with the current social trends,” he said.
The global average legal age of sexual consent is 16, according to data from Avert, a U.K.-based charity.
Activists also doubt how successful the law will be in tackling child abuse.
“Legal framework is necessary, but reality on ground can change only when the community is involved,” Mr. Kumar said.
India, for instance, already has laws preventing children under the age of 14 from working but that hasn’t stopped child labor in India becoming more prevalent.
The law will also be very difficult to apply when sexual abuse happens within the home, Ms. Taparia said.
“Very often we think law is the solution to everything,” she said, “but with incest it’s even more difficult” to prove a crime.