Reason for Liberty

The subject sounds repudiating and taboo, but it cannot be dealt by avoiding it.
In July 2007, a court of India rejected any charges of rape or abduction on a person who was accused of eloping with a minor girl No rape charge if minor in love elopes: Court
In a case involving a 17-year-old who had eloped with her boyfriend Ajit — the accused — and reportedly married at a Bareilly temple, additional sessions judge Kamini Lau held: “…The 17-year-old prosecutrix (the girl) has a right to protect her feelings from the onslaught of her parents and the society. If she had run away to save herself from such an onslaught with her love, this in the view of the court is no offence.”
The case was a milestone towards the liberty and sense of civilization. On general notes, a girl cannot get married until the age of 18, and for guys, that age bar is 21. So, can such age bar be put over the question of age of consent for sex? In general, people considers that this is the age restriction over consent, i.e. A boy or girl under the age of 18 is not considered to be of the age of consent, and hence not capable to agree or disagree to sex. In other words, if a boy or girl under the age of 18 has sex, then the law would believe that even if they had agreed, because it is considered that such agreement could have been under an influence and hence invalid, a rape has occurred.
But how logical is that idea?
In the pretext of what we consider as “the civilized world,” child molestation is a nearly unanimously condemned activity. It can be defined as happening when an “adult” takes on sexual acts with a “child.” I consider this condemnation as proper and right. The criticism is of sufficient universality that it certainly constitutes a social norm.
But how will one define “child” and “adult”?
Worldwide in most of the cultures, “adult” can be considered as that one who is considered as both independent to use all rights available to a member of the culture in question and is bound by all legalities and duties (as well as punishable if laws are broken) for abruptly breaking and misusing those limits. On the other hand, a “child” is not an “Adult”. The difference between an adult and a child can be best described as Individual able to exercise his rights as well as duties and can be considered responsible for the violations of rights of other Individuals who lives in that society.
Being an Individualist, in this era of globalization where various cultures are meeting up together, I further propose that the appropriate dividing line, for legal purposes, between “childhood” and “adulthood” can be discerned by the matter of competence. That is, we cannot collectively decide any certain age limit to decide for a person is adult or child and it is dependent on the competence of that Individual in question in any particular situation. In other words, the age limit of 18 or 21 for adulthood is redundant in many cases and every case needs to be considered individually. As for example, an Individual of age (say 10), working in a coal/diamond mine, would be considered as a case of child labor, but will a child of 10, working in an advertise or a movie along with Amitabh Bachchan or ShahRukh Khan will also be considered as case of child labor? Certainly not! Nor will a cricket player entering in professional cricket game at age of 16 (like Sachin Tendulkar) nor a girl of 15 entering in international tennis arena (Sania Mirza) will be considered as child labor?
Same logic although, is not applied in general for the question of “age of consent for sex”. The arbitrary age limit becomes sacrosanct when an accused adult engages with sex with a child in question. And that is wrong. Even at age of 14 or 15 a boy or girl can surely be competent enough to have consensual love, romance and sexual relation as in other cases, a person can be competent of mature actions in other fields of life, but generally, this reality is denied by every body. .
The age bar can also not be considered as valid in cases of mentally retarded growth regarding immature mental/psychological development. (Consider the Sridevi and Kamal Haasan Starred movie Sadma).

We cannot discriminate law on the basis of any universally accepted age bar. We need to consider every case individually because in some cases, a person can surely be above that irrational age limit for consent, yet he/she may not be competent for having any consensual contract or relation. These edicts may originate from a determined consideration that a person is naturally disabled, or that he or she has become incompetent due to mental illness or some accident or mental infirmity due to old age.
Also, maturity and competence to decide consensually for oneself is a gradual phenomenon. A child is surely competent to make a consensual decision to chew a bubble gum, but that competence cannot be enough to decide to have alcohol or not. Similarly, a girl of 17 may feel easy to have a love/romance sexual relation with a guy of 17 or 18 or 20 but same girl may feel unable to make genuine consent to have relation with a grown-up man of 30-35 because of the asymmetries of power. It will again be needed to be observed on Individual premises.
So, why do people make such arbitrary age limits which actually have no relation with reality? May be it is because the sex in general is considered as taboo in our society, and romance and love is also not well taken of.
And there comes the fact that law can not be dogmatic. If on legal basis of Age Of Consent, a case is heard about a mentally retarded 25 year old girl being in sexual relation, then it cannot be termed as rape or molestation. Similarly, even with honest and responsible consensual sexual relation with a girl of 17 one can be punished as a molester and rapist.
In fact, I would like to support the system of the burden of proof and tilts and presumption equations. That is, let’s say a 20 year old man is accused of molesting a 4 year old girl. Anyone will agree that a 4 years old girl could not have consented for sex. Now the burden of proof would be on the accused to prove the court that the four-year-old girl not only did, but could consent for the actions he did with her. But in case of a 40 year old man accused of molesting 16 years old girl, I would favor the presumption that the 16 years old girl could have given meaningful consent for that activity and it may not be a case of molestation but mutual consent. The burden of proof now will be on the prosecutor’s side to prove that the 16 year old was not in a situation to provide meaningful consent (assuming that the 40 year old man and 16 year old girl were actually involved and that 16 year old girl attested for her consent).
Worldwide ages Of Consent
Conclusion: Law can not be dealt with dogmatism; the legitimate purpose of law must remain open to interpretation. Law should be considered as proper only to the protection of innocence against violence and aggression, and to reprisal/arrest of restoration where such aggression occurs. It is clear for the following reasons that “Age of Consent” cannot be dogmatized and fixed, it should remain flexible and every case needs proper individual study
1> Consent cannot be held genuine if an Individual’s competence for meaningful transactions (not only sex but all rights including commercial contracts) is prejudiced, regarding immature mental/psychological development.
2> All are not same; everyone doesn’t reach maturity at precisely same age. So question of universally accepted age of adulthood is redundant. As it will condemn some who are innocent and will protect some who are wrong.
3> Maturity doesn’t occur overnight, it is a gradual process. A child can have capacity to have consent for eating a pizza though he might not be competent to have a deal or mortgage.
Courtesy: Roderick T. Long