Nepal's criminal law has taken the issue of protecting children from sexual exploitation very seriously. According to Section 219 of the Criminal Code, 2074, sexual intercourse with a person under the age of 18, whether consensual or not, is classified as rape. The main objective of this legal system is to ensure the safety of children. But in practice, it has raised a serious legal and ethical question. If both parties in the relationship are teenagers, their ages are close, and the relationship is consensual, is it fair to consider one as the perpetrator and the other as the victim?

Inspired by this question, many countries around the world have developed the concept of 'Romeo and Juliet Law' (laws related to consensual physical relations between teenagers of the same age). It attempts to view consensual relationships between teenagers who are close in age as distinct from actual sexual exploitation. The legal system is to separate the consensual sexual relationship between them from the strict scope of ‘statutory rape’. Its purpose is to prosecute actual sexual abuse of children, but not to criminalize consensual relationships during adolescence for life.

For example, if a 17-year-old boy and a 16-year-old girl have consensual sex, it is not considered a crime in some countries, because both are close in age, mental state, and social status. But if a 30-year-old man has a relationship with a 15-year-old girl, it is considered exploitation and there is a strict punishment. The main intention of this law is to protect children but not to make young people criminals because of consensual relationships during adolescence.

The debate on the ‘Romeo and Juliet law’ has intensified in Nepal in recent years. In particular, the situation of the boy having to go to prison for a long time in cases of social media, teenage love relationships, and consensual marriages has made this issue a center of public interest.

‘Romeo and Juliet law’ is not a concept limited to any one country, but rather a modern criminal justice principle accepted by many democratic and human rights-sensitive countries around the world. States such as Texas, Florida, and Colorado in the United States have made legal provisions to keep consensual relationships between teenagers who are close in age separate from the harsh provisions of ‘statutory rape’. This has reduced the number of young people who have to be registered as sex offenders for life due to consensual relationships during adolescence and has helped to focus the state’s legal mechanism on actual cases of child sexual abuse. Similarly, although Canada sets the legal age of consent at 16, it has made a close-age exception for teenagers aged 14-15, which prevents consensual relationships between the same age group from being criminalized. Similarly, Spain has developed a practice of not considering age as the sole determining factor by considering maturity and closeness of age as the basis for legal assessment. The courts there also consider the nature of the relationship, consent, and psychological state.

Countries around the world that adopt various civil and criminal legal systems are accepting the ‘Romeo and Juliet law’ as a practical and equitable legal measure to maintain a balance between child protection and adolescent rights.

United Nations bodies have been of the opinion that a balance between child protection and adolescent rights is necessary. Although strict laws against sexual exploitation of children are necessary, various international studies have argued that criminalizing consensual relationships during adolescence equally may result in disproportionate punishment.

The main problem with Nepal’s current legal system is ‘total criminalization’, where even consensual relationships between people under the age of 18 are automatically considered rape. This has led to teenagers being declared criminals, the boy having to go to jail in cases of runaway marriages, turning love relationships into criminal cases due to family discontent or caste discrimination, and ignoring the psychological realities of adolescence by the law. A more serious question arises: if both parties are minors and immature, is it consistent with the constitutional principles of equality and justice to consider only one as the perpetrator and the other as the victim? Although the Constitution of Nepal guarantees the right to equality, justice, and due process, the current system seems to be a ‘strict liability’ system that considers age as the decisive factor rather than circumstances in some cases.

If Nepal implements the ‘Romeo and Juliet Law’, it could have some significant positive effects on the criminal justice system. First of all, it could reduce the number of young people who are unnecessarily declared criminals, sent to prison, and carried a social stigma for the rest of their lives due to consensual relationships. In many cases, teenage love relationships are being criminalized rather than actual sexual exploitation. Such legal reforms could help the state focus its attention on actual child sexual abuse, human trafficking, intimidation, and crimes based on abuse of power and influence. In addition, it may be easier to move beyond the current view of considering only one perpetrator and the other victim in cases where both parties are minors and establish a legal balance in accordance with the principles of equality, justice and proportionality of the Constitution. This can be expected to bring the law closer to social reality and the psychological reality of adolescence.

However, the ‘Romeo and Juliet Law’ is not completely without controversy. There are also some serious challenges and risks associated with its implementation. In some cases, there may be an attempt to hide the real exploitation in the name of ‘consent’, especially in cases where there is an imbalance of power or social pressure. Similarly, proving whether consent was truly free or not can be judicially complicated. In a traditional and culturally sensitive society like Nepal, an environment has not yet been created that is conducive to open legal debate on adolescent sexual relations, which may lead to social opposition or moral controversy. In addition, the question of how much age difference to accept when applying the close-to-age exception is also extremely complex, such as: 2 years, 3 years or 5 years? In determining such limits, striking a balance between child protection, adolescent rights, and social reality can be a challenging issue for lawmakers.