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Legislating Nonmarital Sex in India, 1911–1929

Ashwini Tambe

in Defining Girlhood in India: A Transnational History of Sexual Maturity Laws

The third chapter describes how an expanded understanding of girlhood influenced an Indian law restricting child marriage and raising the age of consent. This chapter details changes in legislative ... More

The third chapter describes how an expanded understanding of girlhood influenced an Indian law restricting child marriage and raising the age of consent. This chapter details changes in legislative politics and in the way Indian legislators appropriated international antitrafficking standards across two decades. It begins by discussing the 1911 Dadabhoy Bill, the first formulation of a distinct age of consent for all nonmarital sex, which was partially provoked by conventions drawn up by the International Society for the Suppression of White Slave Traffic. Next, the chapter examines how Indian Legislative Assembly members in 1922 and 1923-24 responded to the claims S. M. Edwardes made to League of Nations delegates justifying a lower age of consent in India. It then analyzes the 1929 law restricting child marriage, focusing on its effects on sexual consent outside marriage and the resulting anxieties pertaining to parental control. It closes with a fuller analysis of the Report of the Age of Consent Committee and its articulation of parental anxieties. The chapter argues that the 1929 law constraining child marriage, widely considered a key moment of Indian social reform, was facilitated by prior and concurrent measures that fixed a higher age of consent for nonmarital sex. These measures entrenched parental control over daughters’ sexual practices and, ultimately, limited the implications of marriage reform.Less

Numbers, Sex, Power: Age and Sexual Consent

Joseph J. Fischel

in Sex and Harm in the Age of Consent

Chapter 3 proposes reforms to age of consent laws via the principle of sexual autonomy. Conceptually, sexual autonomy envisions young people as volitional but vulnerable. Practically, sexual autonomy ... More

Chapter 3 proposes reforms to age of consent laws via the principle of sexual autonomy. Conceptually, sexual autonomy envisions young people as volitional but vulnerable. Practically, sexual autonomy portends a lowered age of sexual consent, decriminalization of sex between minors, regulation over relations of dependence, and a more robust standard of consent. This chapter demonstrates too that concerns around age, age difference, and sex reflect and displace more difficult questions around gender, gendered subordination, and queer sexuality that are less solvable by law.Less

The Hour of Reckoning: Orthodox Hinduism and the Age of Consent Bill Controversy in Bengal (c. 1890–1892)

Amiya P. Sen

in Hindu Revivalism in Bengal c.1872-1905: Some Essays in Interpretation

This chapter examines the Consent Bill controversy in Bengal in relation to orthodox Hinduism. It explains that the law sought to prevent the sexual abuse of both married and unmarried women below a ... More

This chapter examines the Consent Bill controversy in Bengal in relation to orthodox Hinduism. It explains that the law sought to prevent the sexual abuse of both married and unmarried women below a legally determined age and raised the minimum age of consent which in effect increased the scope of criminal law to punish the male sexual offender. Though many orthodox protesters opposed the bill, they eventually resigned themselves to its eventual outcome. This chapter suggests that it was the confidence in West-inspired political or social change and the faith in the instrumentality of the British government in India that helped men to finally turn away from recourse to traditional modes of change. It also discusses the history of marriage reform in India and the Rukmabai case in Bombay in 1887.Less

The European Convention on Human Rights: Immutable Status and Sex Discrimination Arguments

Robert Wintemute

in Sexual Orientation and Human Rights

This chapter examines the extent to which applicants under the European Convention on Human Rights have used immutable status and sex discrimination arguments under Article 14. It also discusses what ... More

This chapter examines the extent to which applicants under the European Convention on Human Rights have used immutable status and sex discrimination arguments under Article 14. It also discusses what obstacles there may be to the success of immutable status, sex discrimination, and fundamental choice arguments under the Convention, and assesses the level of protection provided by the Convention against sexual orientation discrimination. It considers cases handled by the European Court of Human Rights: five early criminalisation cases, six age of consent cases, Dudgeon v UK, six same-sex couple cases, Bruce v. UK, and Gay News Ltd. v. UK. The chapter concludes with a brief analysis of the protection which the United Nations Human Rights Committee began to provide in 1994, under another international human rights treaty, the International Covenant on Civil and Political Rights.Less

Power

Steven Angelides

in The Fear of Child Sexuality: Young People, Sex, and Agency

Throughout the past decade and a half there has been an explosion of media reportage suggesting a rise of epidemic proportions in cases of female secondary schoolteachers in relationships with ... More

Throughout the past decade and a half there has been an explosion of media reportage suggesting a rise of epidemic proportions in cases of female secondary schoolteachers in relationships with underage male pupils. At the center of this sex panic is the widespread disquiet over the abuse of power these relationships are presumed to involve. Precisely this assumption of inherent power differentials between teachers and students inherited from 1970s and 1980s child sexual abuse feminism provides the rationale for positions of authority legislation operative in many Western countries. This chapter interrogates this sexual offense legislation that automatically criminalizes sex between teachers and students where the latter are over the general age of consent. Examining an Australian criminal case as a window onto this broader anglophone phenomenon, it critiques the model of power informing such legislation. The chapter argues that this model of power misrecognizes the teacher–student relationships under scrutiny and often creates far greater harm than do the sexual relationships themselves. An alternative model of multidimensional intersubjective power relations is proposed as a way of rethinking power, analyzing interpersonal relationships, giving due weight to adolescent agency and difference, encouraging responsible sexual citizenship, and preventing unnecessary prosecutions and collateral damage.Less

Curtailing Parents?: Marriage and Consent Laws, 2004–2018

Ashwini Tambe

in Defining Girlhood in India: A Transnational History of Sexual Maturity Laws

The book’s final chapter accounts for a 2006 Indian law banning child marriage as well as contemporary feminist dilemmas about lowering the age of sexual consent. This chapter tracks the efforts to ... More

The book’s final chapter accounts for a 2006 Indian law banning child marriage as well as contemporary feminist dilemmas about lowering the age of sexual consent. This chapter tracks the efforts to reform the law on child marriage to make it easier to enforce. The context of legal changes following the 2012 gang rape of Jyoti Pandey is also explained. The chapter shows how feminists are calling for lowering, rather than raising, the age of consent, out of a recognition that the higher age of consent facilitates social control. The chapter uses the history offered in previous chapters to dissect the complexities of recent laws prohibiting child marriage and altering the age of consent. Ultimately, chapter 7 exposes how presumptions about the vulnerability of the adolescent girl can backfire when too much power is vested in parental hands.Less

My Little Girl Wife: The Transformation of Childhood and Marriage in the Late Nineteenth Century

Nicholas L. Syrett

in American Child Bride: A History of Minors and Marriage in the United States

By the later nineteenth century, ideas about childhood and about marriage had undergone significant transformations in the United States, especially among the middle class. Children were now seen as ... More

By the later nineteenth century, ideas about childhood and about marriage had undergone significant transformations in the United States, especially among the middle class. Children were now seen as innocents in need of protection and marriage was meant to be a complementary (if still unequal) union of two companionate souls. Both of these trends meant that child marriage increasingly came into disfavor. Focusing on depictions of child marriage in newspapers, debates about statutory rape laws, and marriage and divorce reform leagues, this chapter documents succesful efforts to raise the age of consent to marriage. It also shows the ways that working-class parents, generally those least likely to identify age as a meaningful category of identity, used these new laws to prevent their minor children from marrying.Less

Doctrinal Pictures of Rape Trials: How to Do Things with Feminism

Pratiksha Baxi

in Public Secrets of Law: Rape Trials in India

Judicial words bear illocutionary force: become acts or mandates for deeds. In a basic sense, ‘a legal world is built only to the extent that there are commitments that place the body in line … the ... More

Judicial words bear illocutionary force: become acts or mandates for deeds. In a basic sense, ‘a legal world is built only to the extent that there are commitments that place the body in line … the interpretive commitments of officials, are realized, indeed, in the flesh’ (Cover 1995:208). In this chapter, I elaborate such judicial interpretations executed in the flesh of the women testifying to rape. Further, I wish to present a reading of appellate law on rape to trace how judicial precedent represses the violence that underlies its development. By juxtaposing landmark cases from different Indian courts to read the rape law, I hope to describe the written and unwritten precedents of injustice that haunt projects of law reform. In doing so, I focus on the effects of the 1983 amendment in relation to the Indian women’s movement critique of rape law.Less

Becoming Wiser: Public Policy, Developing Capacity, the Law, and Legal Assent

Jennifer Ann Drobac

in Sexual Exploitation of Teenagers: "Adolescent Development, Discrimination, and Consent Law"

Chapter 10 explores legal reforms for sexual harassment law. It suggests “legal assent” as a substitute for adolescent “consent.” This proposal affords teenagers the chance to revoke their “consent” ... More

Chapter 10 explores legal reforms for sexual harassment law. It suggests “legal assent” as a substitute for adolescent “consent.” This proposal affords teenagers the chance to revoke their “consent” when an adult behaves abusively, takes unfair advantage, or breaches a duty owed to that minor. This approach contemplates that adults will treat minors with care, as would a fiduciary, and will refrain from sexual activity with minors. A minor’s revocation mimics the operation of traditional contract law defenses such as unconscionability, undue influence, and duress that work to invalidate contracts. Once the adolescent abrogates the assent and the court confirms the abrogation, a court must prohibit or exclude any further discussion of the original “consent.” Chapter 10 provides greater detail regarding this proposed legal reform.Less

Wholly Unfit for the Marriage Condition: and Struggles over Age of Consent Laws

Nicholas L. Syrett

in American Child Bride: A History of Minors and Marriage in the United States

This chapter revisits the laws documented in the first chapter and demonstrates that even though they prohibited marriage below certain ages, many children continued to marry, often extralegally. ... More

This chapter revisits the laws documented in the first chapter and demonstrates that even though they prohibited marriage below certain ages, many children continued to marry, often extralegally. When parents objected to these marriages, as in the case of Susan Hervey to the marriage of her daughter Sarah to Thomas Parton, they may have done so not because their children were too young for marriage (reflecting the growth of age consciousness), but because such a marriage would deprive parents of the labor of their children. When judges decided the cases brought by aggrieved parents, they almost always upheld the marriages so as not to create single, non-virginal girls, some of whom might be pregnant. They also wanted to hold men to the promises they had made to the state regarding the permanence of marriage.Less

I Did and I Don’t Regret It: Child Marriage and the Contestation of Childhood, 1880–1925

Nicholas L. Syrett

in American Child Bride: A History of Minors and Marriage in the United States

As reformers and lawmakers raised the age of consent to marriage and made it more difficult for minors to become husbands and wives, young people reacted by marrying extralegally. From the late ... More

As reformers and lawmakers raised the age of consent to marriage and made it more difficult for minors to become husbands and wives, young people reacted by marrying extralegally. From the late nineteenth century through the first three decades of the twentieth, the rates of minor marriage increased, in part, this chapter argues, because marriage became one way of legaly claiming freedom and independence from parents. Marriage emancipated children, it let them escape from abusive homes, keep their wages or inheritances, and have sex without being prosecuted under newly passed statutory rape laws. It allowed them to contest their status as children, itself newly enshrined in the law in a whole host of Progressive Era reforms targeting childhod and adolescence. At the same time the legal device of marriage could also trap girls in abusive and exploitative relationships where they had little recourse to legal protection.Less

The Criminal Law

Paul Johnson

in Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European Convention on Human Rights

This chapter contains the oral histories of six individuals who lodged complaints in Strasbourg under the European Convention on Human Rights between 1976 and 1994 about discrimination on the grounds ... More

This chapter contains the oral histories of six individuals who lodged complaints in Strasbourg under the European Convention on Human Rights between 1976 and 1994 about discrimination on the grounds of sexual orientation created by the criminal law.Less

Homosexuality: patterns of hidden compensation on the road towards sexual liberty

Stephan Heichel

in On the Road to Permissiveness?: Change and Convergence of Moral Regulation in Europe

Since the 1960s, almost all countries in Western Europe have shifted towards more permissive styles of regulating homosexuality. This has mostly been the result of two intermediate shifts: as ... More

Since the 1960s, almost all countries in Western Europe have shifted towards more permissive styles of regulating homosexuality. This has mostly been the result of two intermediate shifts: as expected for manifest morality policies, the impulse on authoritarian styles of regulation was deflected into compensatory policy changes during early reforms before 1980. Surprisingly, however, later reforms seem at first glance to have simply transmitted impulses pushing towards more permissive styles of regulating homosexuality. By analysing developments in Great Britain, which stands out from the sample as particularly at odds with theoretical expectations, this chapter makes two arguments. On the one hand, the low institutional hurdles for policy-making in Britain have lowered the effective need for compromise and therefore compensatory policy shifts. On the other hand, compensatory elements can generally be detected when one extends one’s focus beyond the regulation of homosexuality to regulating sexuality and the age of consent.Less

Young Shoulders, Mighty Responsibilities: Child-Wife

Susmita Roye

in Mothering India: Women's Fiction in English Shaping Cultural History (1890-1947)

By the final decades of the nineteenth century, the child-wife had come under the purview of reformist legislation in British India. Infant marriage was widely prevalent in most parts of the ... More

By the final decades of the nineteenth century, the child-wife had come under the purview of reformist legislation in British India. Infant marriage was widely prevalent in most parts of the subcontinent and in imitation of the high dogmatic standards set by brahmanical castes, other lower castes and classes too adopted early marriage. Besides religious directives, believers in child marriage put forth many other ‘practical’ reasons for the continuance of this practice. They argued that such indissoluble marriage that practically lasted from birth to death signified a higher form of love and bonding that surpassed mere physical desires. Magniloquence about infant marriage, however, hid from immediate view its evil effects. More pernicious and direct effects of infant marriage were sexual abuse of child-wives, their premature motherhood, and widespread widowhood. Though largely overlooked, women writers did use their pens to raise awareness on this issue. This chapter concentrates on short stories by Cornelia Sorabji and M.P. Seelavathi Amma.Less

What is a Child?

Mia Bloom

John Horgan (ed.)

in Small Arms: Children and Terrorism

The United Nations estimated that over 300,000 boys and girls under the age of 18 were under arms as soldiers, spies, informants, couriers, and sex-slaves in the 30-plus conflicts around the globe; ... More

The United Nations estimated that over 300,000 boys and girls under the age of 18 were under arms as soldiers, spies, informants, couriers, and sex-slaves in the 30-plus conflicts around the globe; serving as combatants in 75 per cent of the world's conflicts. However, the United Nations and the international community have arbitrarily designated the legal age to be 18 and thus child soldiers are any combatants below that age. For the purposes of this research we have determined that 15 is a more appropriate age than 18 and culturally sensitive designation of adulthood in Islamic societies. This is based on religious rulings regarding the age at which a young person can take on adult responsibilities.Less