Adolescent Sexuality in Indian Criminal Law: Towards Balancing Autonomy and Vulnerability

Abstract

In this thesis, I critique Indian criminal law’s regulation of adolescent sexuality and propose recommendations aimed at balancing the developing sexual autonomy of adolescents with their particular vulnerabilities. I argue that the regulation of adolescent sexuality by Indian criminal law is normatively over- and underinclusive. It is overinclusive because it criminalises all sexual interactions with all minors, notwithstanding their capacity to consent to the sexual interaction. It is underinclusive because it fails to recognise the scope for sexual exploitation in family-approved practices such as child marriage and devadasi dedication. Through an evidence-based discussion of the capacities and vulnerabilities of adolescents in sexual decision-making, I explain why the developing sexual autonomy of adolescents must be balanced with typical vulnerabilities that arise from their stage of development in the Indian social context. I argue in favour of recognising the consent of adolescents to non-wrongful sexual activity in accordance with their moral capacity to consent. At the same time, I argue based on a moral theory grounded in the Indian social context, that sexual exploitation is a pro-tanto wrongful sexual conduct to which adolescents do not have the capacity to consent. This means that where an adolescent is competent to consent to the sexual acts involved, her consent negates the moral wrong of rape or sexual assault, but an adolescent’s consent cannot justify sexual exploitation. Finally, I propose a tentative two-pronged solution to the simultaneous over- and underinclusiveness of Indian criminal law: (a) recognising as legally relevant the consent of those adolescents who are competent to consent to non-wrongful sexual activity and (b) incorporating a broader concept of ‘sexual exploitation’ into Indian criminal law. I consider the normative and regulatory concerns that might arise in operationalising this solution to provide actionable directions towards reform.