This article is written by Shivani Agarwal, from the Institute of Law, Nirma University. This is a comprehensive article that critically analyses the gap between the crime of rape and the need for consent.

Introduction 

We all might have heard the famous quote, ‘The only thing that is constant is change.’ One can easily observe the changes that this world has seen. When we talk about change, people have seen such incredible transformations globally, whether we talk about technological changes, industrial changes, political changes, etc. The one aspect of change that remains the closest to the people is social change. Cultural and social institutions are transformed as a result of developments in human experiences and relationships. These changes take place over time, and they often have far-reaching and long-term implications for society.

Social change is a type of change that can either positively transform a nation’s society or adversely affect it. Recent examples of social changes are the Lesbian, gay, bisexual, and transgender (LGBTQ) movement, this movement got attention across the whole world and people considered and appreciated this change that was considered as a bane in the older times. 

Rape is also an adverse result of many factors of social change. There are many reasons for rape, like patriarchy in society, gender discrimination, etc. Rape, in its clear sense, can be understood as an unlawful sexual activity and without the consent of the victim. Rape in India is a huge problem. Rape is a social stereotype that has existed for a long time.

The definition of rape in the dictionary is “the ravishing or abuse of a woman.” Since women are biologically incapable of committing violence, the rape victim is a woman. She is traumatized due to the incident, and it is challenging for an individual to recover from such trauma. When we analyze the rape statistics, there are 88 rape cases taking place in the country every hour. In 2019, the National Crime Records Bureau reported over 4 lakh cases of sexual assault in India. These are merely the reported cases, when we talk about unreported cases, the data is even more shocking, making the nation the unsafest place for women in the world. 

Understanding that rape is primarily an expression of male authority and superiority rather than a crime of abuse helps one place rape law within the larger power systems that promote men’s dominance over women while simultaneously encouraging women to “voluntarily” follow patriarchal norms. Any consent norm that attempts to categorize non-consensual sex as “rape” meaningfully must affirm all victims’ perspectives, considering that “consent” as passive recognition of non-resistance is not enough powerful tool to defend women’s free will and option. Gender-neutrality in rape law, according to Indian feminists, is completely disconnected from the social realities of sexual violence in the region.

Non-consent is often conflated with total physical incapacitation in stereotypical legal constructions synonymous with rape. It is assumed that a woman will refuse because she can’t love her chastity rather than life itself. To signify her nonconsent and fulfill various requirements in order to suit the characterization of a “typical” survivor, these assumptions compel the victim to struggle tooth and nail before she is left powerless or lifeless. 

The current standard of consent in Indian law

The principle of ‘consent’ is quite crucial to the crime of rape. The term consent can be understood as permitting to do something. In classical liberal philosophy, “consent” applies to capable and responsible people free of coercion and constraint expressing liberty and free will. The aspect of consent can sometimes change the whole legal case, as there are many fake cases across the nation where the woman in her statement lies about the principle of consent.
The consent requirement, as previously understood, forbids female autonomy; indeed, it denies that women are capable of making, much less articulating, sexual choices. On the other hand, consent can allow women more leverage in intimate relationships and broaden our view of the crime of rape if it is better considered. Perhaps this is why so much work has gone into defining the term. 
An objective criterion for deciding sexual consent includes that the victim’s consent is based on the consequences of her acts or speech. If such an inference is to be taken from Section 375 explanation 2, the victim’s acts or gestures should be qualified as acceptance or refusal based on their “equivocality.” An express statement of a victim’s lack of consent, such as a verbal “no” or any verbal counterpart, should indicate her lack of consent. Since it is always impossible for a victim to express the absence of consent, it is a reasonable requirement that Section 375 of the Indian Penal Code be read with a high degree of objectivity. 
Uncertainties of legal concepts are often used in the powerful’s favour at the expense of the weak. If we have to take an example supporting the statement, prior to the Criminal Law Amendment Act of 2013, Courts instead of imposing the then-objective seven-year statutory standard in cases of non-aggravated rape, judges had the power to give rapists lighter sentences based on arbitrary, and largely invalid, determinations of “adequate and unusual reasons.” Under the Criminal Law Amendment Act of 2018, the minimum sentence for aggravated or non-aggravated rape has been extended from seven to ten years. 
Moreover, the implementation of applicable parts of the IPC to describe consent in the case of rape reveals that victim-friendly descriptions of rape have proved insufficient in the Indian socio-cultural context. Section 90 of the Code provides a derogatory definition of consent, while Section 375 provides a positive definition unique to the crime of rape. When we consider Section 90 of IPC, it states that the consent is not such consent as prescribed by any section of this Code if the consent is given out of fear of harm or a misunderstanding of facts. The person performing the act knows or has cause to suspect that the consent was given out of fear or a misunderstanding. While the second explanation of Section 375 states that consent is an unequivocal wilful agreement when by the words, actions, or any verbal or non-verbal communication by the woman that shows their willingness to take part in the sexual act; it shall be provided that a woman who does not physically refuse the act of penetration is not treated as consenting to the sexual activity solely because of this fact. 
During the act, a woman could withhold her consent, and the act will then be considered rape. Withdrawing consent after the act has been performed is not rape unless the woman’s consent has been tainted by a number of causes, including those mentioned in Section 90. While Section 375 can and should be read to include post-penetration withdrawal of consent, the law’s inability to explicitly and clearly describe rape to include instances where the rape survivor withheld consent renders it unavailable to victims of date rape, a crime in India that is massively under-researched. All these legal confusions not only creates trouble for rape adjudication but also creates confusion for the judiciary.
In majority cases, the witness that carries crucial importance remains the victim at last. The Apex Court of India in the case of State of Punjab v. Gurmit Singh & Ors. ruled that an alleged perpetrator can be found guilty purely on the basis of the victim’s evidence that she did not agree, provided the presiding court finds the testimony credible. Corroborating evidence, such as surrounding events, witnesses, and medical examinations, may be used to conclude a victim’s non-consent. The prosecutor bears the burden of proving that the crime was committed without the survivor’s permission, and this burden must be met without a fair doubt. 

Laws relating to consent

In the case of Mahmood Farooqui vs. State (Govt Of Nct Of Delhi), the need for standard consent was highlighted. In this case, the accused forced himself on a researcher who had visited him only a couple of times and had grown to know him well. Academics and lawyers criticised the ruling for misapplying Section 90 and failing to extend the basic meaning of consent in Explanation 2 to Section 375. 
The decision has created a shield of error of fact for rape, notwithstanding the fact that Indian criminal law would not provide for it. This is how a claim of error is used to refute the accused’s mens rea; moreover, there is no mens rea provision for rape, sexual contact without a woman’s permission, so this defense and the accused’s perception of consent are meaningless. In the lack of an affirmative criterion, the court’s comment on consent demonstrates how a negative standard invalidates the woman’s perspective and inappropriately moves the burden of the attack away from the victim and towards her. An implicit consent requirement would exclude the victim’s “no” and the vehemence of which it was spoken. Instead of focusing on whether the accused requested approval or an affirmative “yes” for the particular sexual act. 
The whole aspect of marital rape shall also be considered when we analyze the fact that the current legal provisions related to rape are against the victims. Firstly, since women were supposed to be man’s property and their modesty was considered a precious possession to their male families, rape laws were initially designed for men and conceptualized rape as a property crime. The preservation of the marital rape exemption demonstrates Indian law’s heavy leaning towards conceptions of irrevocable consent and male possession of the female body in marital relationships, which stems from the understanding of rape as a land crime. The idea that a man cannot commit a crime against or abuse what he owns and that women’s bodies are inherently subject to patriarchal power is an example of this historical conception. 
Another reason was cases of rape adjudication including a broken commitment to marry are also instructive. The Bombay High Court, in the case of Akshay Manoj Jaisinghani vs The State Of Maharashtra, has ruled that if an agreement to marry is true and the couple has sex, the man’s eventual inability to keep the promise is not abuse. In a similar way, the Supreme Court of India has held that sexual contact caused by a violation of a marriage promise can only be called rape if the prosecution can show without a reasonable doubt that the promise was null from the outset.
As a result, most lawsuits brought to courts in this way end in acquittals because proving anything as nebulous as the accused’s dishonest motive from the outset is highly challenging. These cases exemplify judicial patterns that portray women as motivated, capable of giving consent, and capable of grappling “maturely” with a man’s violation of the promise based on which consent was received in the first place. 
Definitions must attempt to alter and reverse the historical tendency to lend more credence and meaning to male-constructed cases. As a result of rape culture, the debate around consent excludes women and overlooks the cultural pressures and social stigma that women who consent to premarital sex experience. Value judgments on women’s right to indulge in premarital sex are all too prominent in verdicts that deprive women whose consent was obtained deceptively any legal recourse and, on top of that, chastise them for their “immoral” actions, which they must partake in at their own risk. 
The normative exoneration of men from responsibility for their comments or actions in sexual intercourse gives them the luxury of not receiving their partners’ positive consent before engaging in those activities. If they want to partake in premarital intercourse, women, on the other hand, face an undue and impossible responsibility of determining their partners’ intentions. Rape in premarital sex is a predictable threat without a judicial solution due to the stigmatization of women and the denial of justice to them.

Scope of rape in the Indian Penal Code, 1860

The Indian Penal Code (IPC), 1860  provides for legal provisions of rape in India. Section 375 of the Code provides for the definition of rape and the provisions mentioned in the section also has provided for seven grounds as to when a man has committed rape, the seven grounds are as follows:

When it is against the will of the woman;
When her consent is absent;
With her consent, but such consent has been obtained because there was a danger of life or getting hurt of herself or some other interested person;
With her permission, but the man is aware that he is not the husband of the woman and the woman gives her consent because of the reason that she believes he is another man to whom she is or she believes that she is lawfully married; 
With her consent because, at the moment of giving such consent, she is unable to understand the essence and repercussions of that of which she gives consent due to unsoundness of mind or intoxication or the administration by him directly or by another of some stupefying or unwholesome substance; 
With or without the consent of such a woman, when such a woman is below eighteen years of age;
When the woman is not in a condition to give her consent.

The reading of the Section indicates that Indian law contemplates an articulate requirement for sexual consent but does not permit the matter of consent to be subjectively decided in the accused’s view.

Section 376 of the IPC  provides for the punishment of rape. As per the Section, any person except as described in the provision, commits a sexual assault shall be punishable with imprisonment of not less than seven years and not exceeding ten years and the person shall also be liable to fine. The whole underlying objective behind the policies of rape is to ensure women’s physical safety and also to eradicate the issue of rape from the nation so that the secularity and morality of the nation can be maintained.

Rape and related Indian legal provisions

Rape is a cognizable offence in India. Following provisions in addition to Sections 90 and 375 deals with the crime of rape:

Section 228(A)(2) of the Indian Penal Code 

As per this section, No one is allowed to reveal the identity of the rape victim, and anyone who does so will be disciplined with either definition for a period of up to two years, as well as a fine.

Section 114(A)(3) of the Indian Evidence Act 

This section states that a presumption can be raised when the element of consent is absent in certain cases of rape. 

Section 53(1) of the Code of Criminal Procedure 

As per this section, it is legal for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, to examine a person arrested on a charge of committing an offence of such a kind and alleged to have been committed in such circumstances that there are reasonable grounds for believing that an examination of his person would provide evidence as to the commission of an offence.

Section 164A (5) of the Code of Criminal Procedure 

This section provides for medical examination of a rape victim.

Section 327 (2) of the Code of Criminal Procedure 

Under this section, it has been stated that there should be a camera trial for all the rape victims. 

Since the Indian judiciary is overburdened, judgments in rape cases take a long time to arrive. It will also arrive so late that one or both parties have died. As a result, speedy trials in rape cases are necessary to ensure that the survivor receives justice.

Contextualising rape culture

Manusmriti

The habit of lying and sinfulness to women, according to the Manusmriti, an important ancient Hindu text recommending codes of ethics, is only one manifestation of their weakness, impurity, and inferiority. Furthermore, India’s legal framework deals with the country’s unique ethnic identity through a system of personal rules, which relate to various cultural and religious communities. It is important to address Indian rape culture within the context of Indian politics, which is inextricably linked to religion, all of which work to normalise and trivialise rape, often even defending it. Women’s interests have only recently been recognised as deontological divisions in their own right. The social, religious, and political elites have manipulated public opinion to further their own interests. 

Amendments in Family laws

Just banning social practises that deviate from “right” readings or rightful origins of religious scriptures leads to impossible debates that can preferably be settled only by comparing religious/social practises to constitutional equality commitments. Religion, which is extremely important in Indian culture, must be included in the scope of fundamental rights-based judicial scrutiny. Family law amendments, according to feminist theory, should not be judged by their constitutional morality and assessed based on the objective of a more equitable and gender-just society, but rather by their constitutional morality and evaluated based on the target of a more egalitarian and gender-just society. 

Bollywood

Women’s portrayal in Bollywood is only “vulgarised” when they are portrayed as pornographic subjects rather than objects. Bollywood examples of women’s consent are woefully lacking in any concrete conceptualization. The male organism is often stereotyped as something that men should play with. The depiction of “macho men” as unnecessarily aggressive in Bollywood, and the portrayal of women as individuals who can be wooed by constant stalking, eve-teasing, and abuse, results in media constructions that perpetuate and repeat gendered power disparities by naturalising them rather than challenging their social constructions.

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Advertisements of sexual innuendos objectify women, while others make their jobs, economic contribution, and sexual impulses unseen. They also represent the socialisation of girls to strive to be symbols deserving of the male gaze. The Indecent Representation of Women (Prohibition) Act of 1986, which ostensibly promotes respect for women by prohibiting obscene representations, was the result of conservative lobbying and, most often than not, prohibits any sexually suggestive representations of women (not only disrespectful ones), reinforcing the notion that only sexless women are worthy of respect and thereby feeding into repression of women.

Myths and misconceptions 

Myths and misconceptions abound in Indian society, perpetuating the rape culture. Rape stereotypes are both abstract (reflecting common cultural conceptions of rape) and prescriptive (mandating how women should react to rape). All are supported by the legal system. Medical jurisprudence manuals that involved injuries or obvious signs of struggle to determine rape are an example of prescriptive rape myths. A resistance norm emerged because Indian society held purity in high regard and felt that a woman’s chastity and “honour” must be protected.

Statutory reforms on the aspect of consent

In view of patriarchal discourses around rape, legal reform of the concept of “normal” sex in order to bring about societal changes and shield future victims may seem pointless, but it is a necessary step toward greater progress. While academics and progressives agree that regulatory change is often marginal and ineffective and that it cannot normatively transform the institutional status of victims immediately, they nevertheless see it as a positive move forward. As a result, they contend that legal amendments must deconstruct the patriarchal definitions that have been institutionalised in order to successfully protect women. 

Rape rule legislation must take into account the full range of women’s possible reactions to male advances. To declare a permissive sexual act legal, it is necessary to ensure that the consent was not granted out of fear of authority or a power imbalance between the actor and the individual, which is especially relevant in highly gendered and unequal societies like India. The responses of victims are sometimes defined as “frozen fear,” “traumatic infantilism,” or “pathological transference” by academics.

When the gunman exits, the victim usually becomes exhausted; others even feel thankful to the gunman for giving them back their lives and are “reluctant to help in his prosecution.” As a result, the survivor can be compliant, empathic, submissive, and appeasing to the attacker in these cases. The new consent requirement makes it very straightforward to prove in court that this unwanted sex was still voluntary.

To prevent the often impossible challenge of discriminating between “frozen fright” and a passive grant of permission, the affirmative standard should be used. More specifically, such a requirement should be implemented to alleviate women of the pressure of having to react in a specific way. Women are protected from implied approval and decisions based on how they react to the violative act by simplifying the standard. As a result, an affirmative norm will broaden the scope of rape legislation to include non-consensual sexual activity that has yet to be criminalised by current rape law, bringing into motion feminist scholars’ recommendations that the law should prosecute all “unwanted” sex. 

Related case laws

The judicial experience of women’s consent traces how a judicial precedent represses the violence that characterises it.

In the Mathura rape case, a young tribal girl was raped by the police personnel. 

The sessions court ruled that sexual intercourse that took place between the victim and a police constable was consensual. Terms such as “a woman habituated to sexual activity,” “shocking liar,” and “saw the need to be noble” were often included in the judicial debate. On appeal to the Supreme Court, it was determined that there was no evidence that the child was afraid or exposed to any compulsion, and thus, the presumption of “passive obedience” could not be justified. 

In various decisions given by the Courts, the element of consent has been interpreted in some of the following manners:

Interdependence of consent and character of a woman. (Laiq Singh case)
If she displays no outward signs of struggle resistance screams or injuries, her poor character and consent are considered proven.
Immediate abortion was considered as consent. (Pratap Mishra judgement)

Conclusion

Feminists, on the other hand, often agree on the diagnosis of patriarchal subversion of women’s reproductive agency, equality, and self-determination, and work for goals that best protect female rights. Regardless of their varying viewpoints, an explicit consent requirement becomes a required move in the procedure and it allows for a more precise and freer expression of women’s rights while removing the expectation of implicit consent.

It is critical to make women’s involvement more active because the very conception of rape law trivialises and eroticizes the offence as one in which the modality of women’s participation is passive and subordinate, applicable only in terms of what “men as primary subjects do” and “women as secondary objects agree to.” When consent is described as passive, the least we can do is offer them, and therefore their knowledge, a more assertive, affirmative, and primary position in the consent negotiation. Rape laws use the terms “by force,” “against her will,” and “without her permission” interchangeably and as separate components, which has resulted in a great deal of ambiguity.

In the fact that the terms invariably draw attention to the complainant’s behaviour, they have slightly different definitions. The first suggests that the victim simply withheld active permission or conveyed non-consent, while the second implies active opposition. Because of this disparity of focus, some courts have treated opposition as a separate part of the offence from coercion and non-consent, resulting in harsh penalties for the prosecution.

As discussed earlier, there is an urgent need to establish a standard that would help in removing the ambiguities in the legal judgements. The standard does not do irreparable harm because it simply takes an enormous weight off of women’s shoulders and demands men to take on responsibilities that they have avoided for far too long. Defendants’ rights to lawyers, cross-examination of witnesses, and a public hearing are also covered by the standard. Furthermore, unfounded claims of rape have been debunked conclusively.

Prosecutors find it exceedingly difficult to resolve the defence of consent in most situations, although the victims find it relatively simple to lift. An affirmative standard, opponents contend, over criminalized even desired sexual contact that occurs without previous direct contact. However, if both parties wanted to engage in the practice the chances of a woman filing a complaint against the man are slim, particularly in a country like India, where female virginity and puritanism are prized excessively and the legal system is highly androcentric and victim-hostile.

An affirmative standard would operationalize a woman’s unequivocal intention to indulge in sexual activity and would also specify a response to a categorical question posed to her. It protects rapists from being excused due to misunderstandings by making dialogue more transparent and ensuring that the lack of a “no” is not interpreted as a “yes.”

References

https://lawtimesjournal.in/role-of-consent-in-rape/
http://www.legalservicesindia.com/article/471/Rape-Laws-In-India-Appropriate-or-not?.html
https://lawcat.berkeley.edu/record/1128891/files/fulltext.pdf
https://www.rainn.org/articles/legal-role-consent

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