It’s an obvious question to ask.
But the fact few bother to do so, gives a far fuller answer than a legal textbook ever could.
Amid the many debates about Bangladesh’s new Child Marriage Restraint Act, it is telling how rarely commentators have mentioned the legal age at which an individual in Bangladesh is considered mature enough to consent to sex.
Even more so when you note that said age of consent, according to Bangladesh’s Penal Code, is only 14.
Given that alarms about the new child marriage law were first raised by health and human rights groups over three years ago, when earlier drafts proposed reducing the minimum marriage age for females down from 18 to 16, it is remarkable how much of the penal code’s contents pass without comment.
There is an obvious, albeit inexcusable, explanation for this state of affairs, of course: In Bangladesh, no matter what the law de jure says, the de facto reality, in practice, is that, neither age nor consent have much bearing on the matter. What counts most is marital status and not being single.
Sex before or without marriage is simply not regarded as a feasible option. That’s just the way it is (and/or we’d rather not talk about it).
Of course, you may know exceptions, but the word says it all, “exceptions.” Hence, the argument goes, there’s no point fretting about the seemingly low legal age of consent for sex outside marriage.
It’s the low average age of marriage generally, and high rate of illegal underage marriages that are (rightly) considered to be the bigger cause for concern.
Around half of all Bangladeshi girls are married off before the legal minimum age of 18 -- most of the rest, within a few years after. With strong correlations between poverty, underage marriage, poor nutrition, and limited years in education, there are plenty of reasons to encourage older average marriage ages.
Unfortunately, this challenge has been made harder by the government responding to criticisms of its bill, by dropping its initial reference to 16 as a new minimum age. Instead, it has increased ambiguity by simply allowing for exceptions to the pre-existing minimum marriage ages (18 for female, 21 for males) to be permitted in fuzzily defined special circumstances.
The bigger point is the concept of consenting adults being free and able to decide private matters for themselves, that is what should be adopted and encouraged
Conceivably, such ambiguities could be resolved soon if the government acts on ministerial promises to provide further clarifications. But in the meantime, the soundbite from Girls not Brides that the new law risks Bangladesh reducing “minimum marriage age to zero” is being widely reported around the world.
It is long overdue for more people to take a more serious look at updating the 1860 Penal Code which applies in Bangladesh.
This is both easy and difficult.
Simple, because the whole code is not that many pages long, plus it’s instantly searchable on the government’s own website. And tricky, because some people would rather suffer, or see others suffer, from lack of information, than endure the risk of controversy or an embarrassing conversation.
Such caution and social convention is, sadly, both inevitable and ridiculous.
Ridiculous because Bangladesh would not have made the progress it has made in reducing average family sizes if we as a nation were simply too mortified to talk about sex and contraception. Including, and especially, the very young women and girls who are pressured into early and underage marriage having access to family-planning advice.
And inevitable because, look around you, patriarchy prevails and most people in the country tend to expect, or assume, everybody else wants them to abide by traditional expectations of sexual mores.
Sadly, this makes it easy for the few to intimidate the many. Take for instance the ongoing case of a development studies lecturer at Dhaka University being investigated because of an anonymous accusation of using “objectionable content” during a seemingly routine course about gender and development.
If such a case can arise from a DU post-graduate course, imagine the reactions a school-teacher would get from parents if they told their 15-year-old students that “the age of consent in Bangladesh is 14.”
Disbelief perhaps. But the fifth part of section 375 of the 1860 Penal Code is clear. It defines statutory rape as “with or without her consent, when she is under 14 years of age.”
From this arises the implication that the age of consent in Bangladesh is 14.
This same section also contains the egregious provision providing for marriage as a defence for rape, which is clearly long overdue for being repealed.
Both sections largely reflected the law in Britain at the same time. As it turned out, British parliamentarians very quickly got round to raising the age of consent in the UK to 16 after late Victorian press exposés of child trafficking in London brothels. But it took until 1991 for English law to make rape within marriage a crime in itself. Patriarchy is not just for Victorians then.
Incidentally, section 376 of the Penal Code does appear to imply an offence where the “wife” is under 12 years old, but whether this is sloppy ICS drafting or an intent to deal with the most serious forms of paedophilia is debatable.
More positively, perhaps, sections 372 and 373 are relatively detailed and specific about outlawing the trafficking of girls under 18 for prostitution.
Another marriage law, section 497, outlaws adultery but is presumably not used much partly because it excludes a wide range of possibilities where there may be “consent or connivance,” and mainly, I suspect, because it explicitly rules out punishing women -- “the wife shall not be punished as an abettor.”
From this potted history alone, it is clear there is much to reform, but for now let’s stick to what should Bangladesh’s age of consent be. The main choice seems to be “keep as it is” or “raise it to 16” for the same reasons as Britain’s.
According to the internet worldwide chart: 14 is lower than the majority of other nations like France (15), Ireland (17), and India and Turkey (18). But 14 is not unusual as it is the same age as Austria, Brazil, China, and Germany. And higher than some countries like Japan (13), Philippines (12), and Nigeria (11).
The most common age of consent specified by most countries appears to be 16 years of age, as in the UK, US, Indonesia, Russia, and Malaysia.
Particularly in those Western jurisdictions, where there is wider public debate about sex, generally; and high profile exposure of child abuse scandals in religious bodies and children’s homes has increased public demands to protect children, these ages are sometimes strengthened by additional measures focused on stopping predatory adults, such as extra limitations on those far apart in age and/or in positions of authority.
Such scrutiny and attempts to improve the law are in marked contrast to a number of Muslim countries which either do not specify or enforce any minimum age for marriage and simply state that sex is only legal within marriage, and punishable without, as in Iran, Pakistan, and Saudi Arabia.
Well that makes it simpler then: Don’t be like the latter. They have simply too many examples of arbitrary interpretations and misogynist abuses of religious scriptures to be taken seriously.
It’s no coincidence these nations have seen instances of rape victims being stoned to death and perpetrators excused with impunity.
It is the risk of going down the latter path that campaigners are warning against when they worry that “special circumstances” will see more young girls forced into marriage before 18.
This same section also contains the egregious provision providing for marriage as a defence for rape
True enough, but some of the rhetoric such as the law “will allow parents to force their daughters to marry their rapists” is still arguably alarmist. When Prime Minister Sheikh Hasina talked about allowing marriages to reduce social stigma, she was probably thinking more about consensual teenage pregnancies of the “shotgun wedding” variety, rather than victims of rape and predators.
No doubt her approach and interventions have included spin to appeal to social and religious conservatives, but it’s probable that she both believes this and trusts it to be electorally popular.
Provided the government is serious about it being an act to restrain underage marriage, with courts only permitting exceptions with good reasons, all is still not lost then.
Assuming ministers are able to recognise the main and easy to rectify flaw is not specifying an absolute minimum age.
Logically, such an absolute minimum age would have to be the same as the age of consent, which is why I asked this question in the first place. Going on numbers alone, if I had to pick one, I would say 16 is safer than 14.
But the bigger point is that the concept of consenting adults being free and able to decide private matters for themselves, is what should and needs to be adopted and encouraged. That won’t happen this month, but it has to be part of the way forward. Governments need to lead.
This isn’t about forcing people to change their personal moral attitudes and religious beliefs. It is about providing and protecting the freedom, health, and welfare of all the nation’s people.
Safeguarding children from predators, protecting the health of mothers, promoting safe sex, all these goals can be helped by improving the education, knowledge, and freedom of the entire population. And recognising that won’t happen without more widespread empowerment of women and girls.
All of which, including much of the progress Bangladesh has made in the past 40 years in improving life expectancy and child mortality rates, will be placed in jeopardy if the government does not do more to drastically reduce the scandalously high number of underage and early marriages.
With around half the population aged 19 or under, the economy growing and society changing fast, don’t expect the clamour aroused by these issues to damp down any time soon.
The least we can do for coming generations is to make sure they do not die from ignorance.
Niaz Alam is a member of the Editorial Board of Dhaka Tribune. A qualified lawyer, he has worked on corporate responsibility and ethical business issues since 1992. He sat on the Board of the London Pensions Fund Authority between 2001-2010 and is a former vice-chair of War on Want.