When our desire for protection turns into protectionism: Questioning the centrality of criminalization to address gender-based violence faced by young people

December 3, 2023

BY Aarushi Mahajan

Photo credit: CREA

As a feminist researcher and advocate, I have constantly been curious about what meaningful engagement with the state looks like. By the state, I refer to the institutions, structures and individuals associated with governance and that are duty-bound by national and international obligations to uphold, protect, and defend the human rights of people they govern.

A preoccupation of mine is whether punitive laws, policies, and practices are useful frameworks to recognize, protect, and defend rights. While there is growing consensus in human rights circles that over-reliance on criminalization can lead to surveillance, discrimination, and violence against structurally excluded groups, these discussions do not extend as much to the realm of gender-based violence (GBV). It is particularly complicated and controversial to discuss non-punitive approaches to GBV against young people, who constitute a group that is considered to be in perpetual need of protection from the world at large, and lacking agency and autonomy to be a part of these discussions.

Within South Asia, India has a relatively high age of consent i.e. 18 years. The central legislation on child sexual abuse, Protection of Children from Sexual Offences Act, 2012 (POCSO), punishes sex with and between any person(s) below 18 years of age. Given that the age of marriage is 18 years and 21 years for women and men respectively (Sec. 2(a) of the Prohibition of Child Marriage Act, 2006), young people are often compelled to delay sexual activity till marriage. It is no surprise that a high age of consent coupled with heavily patriarchal and regressive socio-cultural norms may push young people to marry earlier (see). This could be because that is the only socially acceptable avenue to pursue sexual activity and companionship. 

Arguments and evidence cautioning against over-reliance on criminal laws to address social issues are cross-cutting: feminists, child rights’ advocates, lawyers, and researchers have demonstrated how criminal laws aimed at protecting ‘children’ (those below the age of 18 years in India) from sexual violence are weaponized to punish those engaging in acts or relationships with those from a different class, caste and religion. Even though the law’s imagination is restricted to the heteronormative binary, studies reveal how young queer and gender diverse partners have been penalized by their parents and police officers using a combination of legal and moral arguments (see). The stigma and shame attached to such relationships (which were once criminalized by law) are amplified with the moral panic around ‘brainwashing’ and ‘taking advantage’ of young people.

There are fissures in the insistence on criminalization as a solution for GBV: several courts in India have been struggling with the contradictions and injustice of applying the blanket criminalization mandated by law to cases of consensual sexual activity with and among young people (see). 

In September of 2023, the Law Commission of India recommended that the Parliament allow judicial discretion in sentencing cases where the age gap is not more than 3 years and there is ‘tacit approval’ (since those under 18 years of age do not have the legal capacity to consent to sex). This would mean that even in consensual cases, the ‘perpetrator’ (usually the male gender) will still face conviction. For groups advocating for decriminalization of sexual acts between persons in the age group of 16-18 years, this is a missed opportunity to counter core assumptions behind the logic of criminalization.

At one of the many turning points in advocacy around child rights’ protections, I grapple with a few of these questions:

  • One size does not fit all: Should criminal law account for differing maturities and capacities of a range of young people? While the Convention on the Rights of the Child gives us some guidance through the evolving capacity principle, would we be willing to evaluate consent to sexual activity on a case-to-case basis? This would enable us to move away from an age-centric view of consent and look at other power dynamics. However, in addition to the workload this may add to an already burdened judicial system, there is genuine concern that patriarchal mindsets and structural biases on the grounds of caste, class, religion, disability, ethnicity etc. may come into play while deciding who is mature enough to consent, what a ‘good’ sexual relationship looks like, and who is less deserving of legal protection.
  • The relationship between the law and lived experiences: While interviewing young people-led collectives working on SRHR in South Asia on the theme of GBV, I learnt that young people often do not use the language of law to describe their experiences. For instance, they may acknowledge that they experienced a violation of their privacy, intrusion in their intimate sphere, loss of trust, humiliation, confusion etc. but this may not necessarily be mapped onto a legal provision. This leads us to wonder whether the lengthy and numerous provisions on different forms of sexual offences are useful to them. How can the law be made more relatable to young people’s experiences of violence? This would require us to go beyond making laws ‘child-friendly’ and re-conceptualizing the legal definition of violence to make it relevant for those vulnerable to GBV, in all its forms.
  • Hyper-focus on sexual violence can re-inforce stereotypes we are trying to fight against: The Protection of Children from Sexual Offences Act, 2012 is explicitly concerned with the sexual component of violence i.e. sexual assault, sexual harassment and use of children for pornographic purposes. When sexual violence is deemed a standalone category that is different from other forms of GBV (for e.g., physical, emotional, psychological GBV) and when criminalization is seen as the primary form of redress, this reinstates the assumption that sexual violence is the worst form of violence and merits the harshest punishment. But this does not apply uniformly to each young person’s unique experiences, and it also takes us back to archaic linkages between chastity and virginity with purity, family and community honour and shame. By placing sexual violence on a pedestal, we risk focussing disproportionately and solely on the ‘sex’ and ‘sexualized’ aspect of violence (associated with reproductive organs and body parts that may be sites of violence) and not on the ‘gender’ and ‘gendered’ aspect in GBV (structural reasons and manifestations for the violence). It is important for feminists to reflect on why we insist that sexual violence be treated exceptionally and whether higher penalties translate to better protection.
  • Tinkering with criminal law is not transformative: Given that a vast majority of GBV against young people happens in intimate settings and is under-reported, a very small proportion of cases actually reach criminal courts. Young people have shared that they find the criminal legal system inaccessible, and while some may seek punishment and retribution, many young people want solidarity, recognition of the harm done to them, support in the form of counselling, access to SRH information and services, shelters etc. (for instance, see here). While law as a site of progressive reform should not be abdicated, it is worth questioning its centrality in our advocacy on GBV. It also leads us to ask what would rights-based and sexuality-affirming frameworks to address GBV look like? 

Now that these tensions are coming to the surface yet again, feminists, women’s rights and child rights groups have to contend with a foundational dilemma – is our base desire for protection of structurally excluded groups (in this case, young people) manifesting into protectionism? Protectionism refers to ideologically driven laws, policies and practices that curb rights and freedoms in the name of ‘protection’ and strengthen the status quo instead of challenging it (you can see more here). Protectionist narratives can turn over to criminalization when they are bolstered by punitive laws and policies. 

In the case of young people, protectionist narratives around gender-based harms can lead to restrictions on their access to comprehensive sexuality education, access to sexual and reproductive health services, access to the internet, limited mobility and control over their gender and sexual expression. In order to ‘protect’ them from GBV, they are trapped in a controlled environment with surveillance, policing and limited autonomy to make decisions. 

By centering young people’s perspectives and experiences in legal and political discourse, particularly discourse meant for their protection, we can unpack some of these issues. Through genuine cross-movement and cross-region engagement where we share our challenges in countering criminalization, we can move one step closer to imagining inclusive, intersectional, and transformative approaches.