Adolescents’ Sexual Choices & the POCSO Act

**Harsh Gour

Introduction

The objective of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) is to shield minors from abuse. Yet, by defining every person below 18 as a “child” whose consent is irrelevant, it has trapped many adolescent couples in a legal paradox. As one study put it, romantic sexual activity “is a normal process of development among adolescents,” but under POCSO, consent becomes “a tug-of-war between the age-appropriate developmental needs and legal obligation.” In today’s reality, parents often invoke POCSO to criminalise consensual teenage relationships: one analysis found that 80.2% of “romantic” cases were filed by parents or relatives after a girl eloped or became pregnant.

The result is a chilling effect on adolescent autonomy and an overload of courts, all while genuine cases of abuse risk being sidelined. One must ask: Was it ever the intent of the law to send consenting teens to prison?  The objective of the POCSO Act was never to hold guilty an adolescent boy who enters into a relationship with a minor girl. International child‐rights bodies echo this concern: UNCRC General Comment No. 20 (2016) insists that States “balance protection and evolving capacities and avoid criminalising adolescents of similar ages for factually consensual and non‐exploitative sexual activity.” Today’s rigid regime turns child protection into a blunt instrument that victimises the very youth it aims to safeguard.

The POCSO Framework and Its Consequences

Under POCSO, any sexual intercourse involving a person under 18 is automatically an offence (Sections 2(1)(d), 3, 4), with mandatory minimum sentences far higher than those for adult statutory rape. This is a one-size-fits-all rule which ignores adolescents’ evolving maturity. Studies confirm the misalignment between law and reality. Scholars have noted that “romantic relationships are prevalent among adolescents in India,” and that a substantial number of POCSO registrations arise from such consensual teen relationships.

For example, research by Enfold Proactive Health Trust and others found that over 20% of cases in some states (e.g., Delhi, Maharashtra, Andhra Pradesh) involve “romantic” circumstances. Similarly, court-collected data from Karnataka showed nearly half of POCSO complaints (49.1%) were in a consensual context. In turn, special courts devote scarce resources to investigating these cases, even though convictions are vanishingly rare.

Families’ use of POCSO in this way is well-documented. 80.2% of “romantic” cases were lodged by parents or relatives after elopement or discovery of pregnancy. Often, the girl herself is disputing her age or consent. The law thus becomes a tool to enforce parental or social control (for example, against inter-caste or interfaith relationships) rather than to redress abuse. In many such cases, the accused is a teenage boy: parents sue him under POCSO, subjecting him to criminal process and prison risk, even when the girl insists it was consensual.

Victims, too, suffer. Fear of prosecution or punishment may deter adolescents from seeking sexual and reproductive health information or care. Girls in consensual relationships face stigma and the trauma of legal proceedings. Courts and prosecutors report that teen couples often feel compelled to split up or run away to avoid family punishment, harming their welfare. Forcing a student through a long trial only inflicts “life-long stigma” on someone who will almost certainly be acquitted. The boy’s entire future – education, marriage prospects, social standing – is jeopardised, all for a lawful act of adolescent intimacy.

Even the intent to protect can backfire. By treating all under-18 as inherently vulnerable, POCSO dilutes attention to true exploitation. What the broad statute does is push adolescents into the criminal justice system and out from the safety net – this does not align with the best interests under the guise of “protection.” In effect, punishing teens who pose no threat to others wastes legal capital that could be used to combat real predatory abuse. Charging a boy in an eventual acquittal only means he would become persecuted of the alleged crime for all his life – a result utterly disproportionate to any public interest.

Child Rights and Evolving Capacities

These outcomes clash with notable international child-rights principles; the Convention on the Rights of the Child (CRC) emphasises both protection from harm and respect for children’s evolving autonomy. General Comment No. 20 (2016) on adolescents explicitly advises states to “take into account the need to balance protection and evolving capacities and to avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity.” In other words, when teens close in age engage in consensual sex, the law should treat it with nuance – protecting them if abused, but not branding each other as criminals. CRC Article 12 further grants adolescents the right to their views respected on matters that affect them, implying teenagers not automatically be silenced by a blanket legal rule.

General Comment No. 24 (2019) on juvenile justice reinforces that when a young person is in contact with the law, it must be “as a measure of last resort.” Arbitrary criminalisation of teen relationships flies in the face of this. International guidelines (e.g., the UN Beijing Rules) require any deprivation of adolescent liberty to be minimal and judicial. UNICEF has warned that placing youth in adult‐style detention “endangers their safety, health, especially psychological and emotional development,” and risks pushing them toward further crime. Locking teens up – even theoretically – for consensual activity is the epitome of “inappropriate responsibility” being thrust on them.

India’s Constitution guarantees personal liberty and dignity to all. Privacy is an intrinsic aspect of dignity, applicable to minors as well as adults. Courts have recognised teens’ rights to self-expression and choice in matters like marriage, religion, and sexual orientation. Notably, in a suo motu 2025 case, In re: Right to Privacy of Adolescents (2024), the Calcutta High Court (on appeal) held that the blanket criminality of POCSO infringed on girls’ identity and boys’ evolving capacities. Likewise, several High Courts have quashed or trimmed POCSO sentences in teen romance cases on best‐interests grounds. In Vijayalakshmi v. State (2021), the Madras High Court lamented that sending consenting adolescents to Special Courts was “not the objective of the Act.”

The neuroscience of adolescence reinforces these legal intuitions. Brain imaging studies show that until the early 20s, the prefrontal cortex (governing judgment, impulse control, and future planning) is still maturing, even as the limbic system (driving reward‐seeking) comes online earlier. As Laurence Steinberg has documented, adolescents are thus biologically prone to exploration and risk‐taking, but not fully culpable for poor decisions. Teens are not yet fully “adults” in mind or behavior; they require guidance rather than outright punishment. The World Health Organisation notes that adolescence is a time for expanding choices, learning to manage emotions and relationships, not for facing adult‐style sanctions. Child-rights theory calls this the “evolving capacities” of the child: as young people mature, they acquire greater responsibility and autonomy, but the law must calibrate for this growth. POCSO’s current blanket model ignores this science.

Morally, criminalising consensual teen sex undermines equality and fairness. As noted above, most prosecutions are initiated by guardians – generally against young men in order to control young women. This way, the system labels a girl as “victim” who allegedly consents, and a boy as “offender” by default. Caste, class, and family honor often dictate which relationships are reported. Victims of arranged or forced marriages, incest or true exploitation meanwhile may find that scarce investigatory resources have been consumed by cases that never posed any danger. In this way, the law’s current operation can harm the very children it was meant to protect.

Comparative Models of Close-in-Age Exceptions

Across the world, policymakers have grappled with similar dilemmas by carving out close-in-age or “Romeo-and-Juliet” exceptions – exempting consensual teenage sex from strict liability when both partners are close in age and there is no exploitation. For instance, in Teddy Bear Clinic v. Minister of Justice  (2013), the South Africa’s Constitutional Court struck down laws criminalising any consensual sexual act between children under 16. It ruled that such laws violated the rights to dignity, privacy, and best interests. Its remedy effectively creates a safe-harbour: a consensual act is not punishable if the accused is a child or if both are under 18 with no more than a two-year age gap. In other words, a 15-year-old who consensually dates a 13-year-old cannot be prosecuted. This judgment affirms that criminal law should target exploitation, not consensual peer relationships.

Canada offers another example: the general age of consent is 16, but the Criminal Code explicitly allows 14 and 15 year olds to consent to sex with partners less than five years older, and 12- and 13-year-olds with partners less than two years older. For instance, a 15-year-old dating an 18-year-old will face no offence (so long as there is no trust or authority imbalance), whereas a larger age gap would trigger the statutory rape rules. This approach acknowledges that mid-teens can make some decisions for themselves, subject to safeguards against abuse. Many U.S. states have similar “close-in-age” laws. In Europe, most countries set consent ages at 14-16 and permit exceptions for young teens close in age.

These comparative frameworks inform the UN guidance noted above. CRC General Comment 20’s Language – “avoid criminalising adolescents of similar ages for … consensual … sexual activity” – this echoes exactly the safe-harbour principle. Repeated emphasis in India’s high courts and international law is that protecting children should not become a pretext for infantilising older adolescents. Instead, consents among peers should be handled by child‐supportive measures (counselling, education, family mediation) rather than criminal indictment.

Proposed Reform: A Close-in-Age/Discretionary Model

In light of the above, the Expert Committee should move decisively away from blanket criminalisation. Any reform must preserve POCSO’s Core goal – punishing abusive sex with minors – while exempting non‐exploitative teenage intimacy. Proposing a two-pronged solution:

Legislative close-in-age exception: Amend POCSO to introduce a narrow defence (or outright exclusion) for consensual acts between adolescents close in age. For example, Parliament could stipulate that if both parties are under 18 and the age difference is no more than a set limit (e.g. three years), then the Act is not a POCSO offence provided there was no coercion, abuse of trust or other exploitation. This mirrors the South African model (2‐year gap) and Canada’s (2‐ and 5‐year gaps). The Law Commission’s Report No. 283 itself recognised that age difference should be a “relevant factor” in ‘romantic’ cases. Rather than dismissing the idea, the Commission suggested that if the gap is under 3 years and the child is 16 or above, judicial discretion could be exercised in sentencing. A formal safe-harbour would remove prosecutorial ambiguity and align the statute with child‐rights norms.

Judicial/prosecutorial guidelines: In parallel, the government should issue binding protocols requiring police and prosecutors to screen out purely consensual, close-in-age cases from arrest and charge. Investigating officers should be instructed that in an intimate relationship between, say, 16–17 year olds (or 14–15 year olds), evidence of consent and absence of coercion must lead to non‐registration of an FIR or immediate diversion to family counselling. Such discretion is already hinted at in the Law Commission draft, which permits a Special Court to “impose any lesser sentence” than POCSO’s mandatory minimum when the relationship is consensual and other safeguards are met. Codifying this into guidelines (or into the Act’s rules) would ensure consistency. An additional option is to classify such cases under juvenile justice laws: for instance, consensual teen sex could be removed from POCSO altogether and handled under the Juvenile Justice Act’s more rehabilitative framework.

These reforms should be coupled with constructive support. Teen couples should be offered counselling and sex education, not a trial. Courts could mandate child‐friendly awareness sessions on healthy relationships for older teens. Crucially, any exception must be tightly circumscribed: it must not apply when one partner is abusing trust or when there is evidence of exploitation. The goal is not to create a loophole for predators, but to recognise that consensual first loves – especially among 16–17 year olds – are developmentally normal and should not automatically result in criminal records.

Why Reform Better Balances Protection and Autonomy

Adopting a close-in-age/discretionary model will advance POCSO’s protective purpose more effectively than the status quo. First, it prevents the law from biting into adolescent autonomy. By exempting consensual peers, the reform respects teens’ right to evolving sexuality without opening space for exploitation: predators (who exploit age gaps or authority) remain punishable, but ordinary courting is decriminalised. This targeted approach follows UN guidance: it “balanced protection and evolving capacities” as envisaged by the CRC.

Second, it focuses resources on true abuse. Police and prosecutors will no longer have to pursue hundreds of “romantic” cases. Scarce investigative bandwidth can instead go after cases with clear coercion, force, or familial age disparities. Courts will spend less time on socially-motivated complaints, speeding justice for genuine victims. Over time, this can strengthen public trust in child‐protection laws. 

Third, the reform upholds Constitutional morality and rights. Criminal law should not treat a teenage love affair as equivalent to the rape of a child. Indeed, India’s courts themselves have begun to insist that love is a fundamental human experience and that adolescents have the right to form emotional connections absent abuse. This proposal recognises dignity while safeguarding vulnerability: adolescents above a certain age would know their consensual relations won’t land them in jail, but we would still protect younger children and those victims of exploitative instances.

There is a need to amend existing POCSO’s definitions or adding a new clause (as the Law Commission draft illustrates). Also, issuing clear instructions to law enforcement. Other countries have shown that close-in-age exceptions do not lead to more abuse – they simply decriminalise what society already tolerates. Importantly, any concern that adolescents will misjudge consent is addressed by focusing on clear evidence of exploitation and by involving child‐welfare agencies in disputed cases. In fact, UN guidelines stress that acknowledging adolescent sexual autonomy (coupled with education) supports healthy development.

Realigning Law with Realities

The act of criminalising all teenage sex sounds legally and morally unsustainable. It makes a false choice between two cherished values: protecting children and respecting their growing autonomy. Our proposal offers a better synthesis. By carving out narrow exceptions for consensual teen relationships – grounded in neuroscience, jurisprudence, and international law – India can ensure that POCSO continues to punish exploitation, not love. Such reform would correct the distortions; it would stop turning victims into offenders and keep families from weaponising POCSO to enforce social norms. In doing so, it would honor the CRC’s insistence on children’s best interests and evolving capacities, the Constitution’s guarantees of dignity, and sound science about adolescence. A close-in-age/discretion model would refocus the law on its true purpose, striking a more just balance between child protection and the natural rights of adolescents.

**Harsh Gour is a 4th-year law student at NALSAR University of Law, Hyderabad.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.