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Should Consensual Sex Among Minors Be Legalised? When It Does Not Help The Society Then Why?


The following article is the 1st winning entry for IIM Indore’s fest Retorica 2015, written by Advika Jalan from St. Xavier’s College, Kolkata. 


A minor is an individual who is less than 18 years of age. Consensual sex indicates that there is the element of free choice involved; i.e. the minors in question are not being forced into such intercourse by their partner or a third party. It is entirely their decision (however, later we will examine whether or not this really is a free choice, as there are subtle, indirect influences in the form of peer pressure and the like).

The most important term here is “legalise.” Whenever the Government deems something as legal or illegal, it showing its approval or disapproval of the same. For instance, when the USA Government makes gay marriages legal, it showing its solidarity with the LGBT community and showing that it approves of such marriages, and because the Government approval will have a great impact on reducing the amount of discrimination and censure faced by the LGBT community in society. The idea is, the right to love someone should not be restricted to gender barriers and it is illogical to discriminate against and look down on someone just because he is attracted to someone from his own gender. So legalising gay marriages has a tangible benefit here- it paves way for a more inclusive society, where the LGBT community is recognised. But there is no tangible benefit associated with minors having sex (which I will explain later).

When the Government deems something as illegal, is shows its disapproval of the same. For example, banning Sati as a practise, because it was exploitative and deeply unfair to women- in fact, it was a barbaric concept and detrimental to society. The Government’s move to make it illegal not only served to reduce the instances of widows being burnt at funeral pyres of their husbands, but it also served to send out a strong message to society that this practise is unacceptable.

Thus, we can conclude from this that the Government making something legal or illegal sends out a strong message as to what it approves of and society should approve of.

But why should one approve of minors engaging in consensual sex? Is there any benefit associated with it? There are, in fact, greater harms.

Let us take the hypothetical case where the Government legalizes consensual sex. In India, where a conservative attitude towards sex prevails, this will be a cause of great shock and uproar. The societal backlash alone will force the Government to reconsider its decision. Of course, societal backlash existed even against gay marriages in USA or banning Sati in India, but the Government went ahead and did it anyway- because there were significant benefits associated with it. Minors getting to have sex has no benefits to society as a whole, whereas allowing gay marriages or banning Sati did. So how would making consensual sex among minors legal be justified by the Government?


In fact, there are greater harms associated with this. A minor is essentially an individual going to school and in the formative years of his or her life. This is an extremely important phase, where having an unwanted pregnancy or another unfortunate consequence of minors having sex can have a disruptive effect. A minor will simply lack the emotional, financial or physical capacity to deal with these consequences. Of course, unwanted pregnancies can be prevented by using condoms and contraceptives, but this is not a foolproof system. Things can still go wrong and these consequences will still take place.

Of course, a person aged 17 years and 10 months (a minor by definition) is no different from a person aged 18 years and 3 months (a major by definition) in terms of emotional stability and maturity- so why this demarcation? This is because a major is typically one who has passed out of school and has been equipped with the resources which will enable him to at least get a job to financially support the child.

Someone who hasn’t even graduated from school or did poorly in school because of an unwanted pregnancy while still in school will be adversely affected. So in the event that the Government makes it legal, more minors will have sex (because they are curious, they succumb to peer pressure,  recreational sex is widely perceived to be enjoyable and the Government by making it legal has given its approval), and with more minors having sex, the probability of minors facing unfortunate consequences of sex will increase. This in turn has an adverse effect on the individual as well as society.

In fact, when the Government makes it illegal, it adds a deterrent to minors having sex. The fear of punitive measures acts as another hurdle and makes minors pause before engaging in such an act. There isn’t anything wrong with sex itself (though it is widely perceived to be immoral), but if a needless risk can be mitigated, it should be. The Government has a paternalistic role to play, i.e, it can take away certain rights and privileges if it feels that it is for your own good, and yes, the right of choice is being taken away from minors because it is in their interest not to suffer unfortunate consequences which can seriously jeopardize their future.

Side Proposition may argue that upholding free choice is important, but I have two questions-

  1. Is this choice even free, to begin with?
  2. Is free choice in this context so important that the costs can be neglected?

When the Government makes it legal, it gives its approval, and so more minors, emboldened by this, engage in sex. That makes sex for minors a new norm, and because they are at such an age where peer pressure plays a very important role, even those who were not really keen on having sex will feel the pressure to conform and have sex. So this is not even free choice, exactly. Free choice is one which is free from all external influences.

Besides that, is the freedom to have sex at age 16 rather than 18 so important? Besides the recreational value of sex, there seem to be no other benefits arising from it, neither to the individual nor to society. So why should the Government legalise it? Given the costs and paternalistic role of the state, it is justified in not legalising it.

Thus, given the very few benefits, and the huge costs involved, I believe in opposing the idea of legalising consensual sex among minors. 



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