YES MEANS YES: STUDY OF INDIAN RAPE LAWS FROM THE LENS OF AFFIRMATIVE CONSENT STANDARD
Dissertation submitted in part fulfilment for the requirement of the Degree of
LL.M.
Submitted by Supervised by DHRUV DUGGAL Prof. (Dr.) MRINAL SATISH
National Law University Delhi (India) 2019 DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “Yes means Yes: Study of Indian Rape Laws from the Lens of Affirmative Consent Standard” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Dr. Mrinal Satish, Professor (Law), National Law University, Delhi.
I further declare that to the best of my knowledge, the dissertation does not contain any part of my work, which has been submitted for the award of any degree either in this University or in any other institution without proper citation.
Signature: Dhruv Duggal (38LL.M. 18) National Law University, Delhi Place: New Delhi Date:
I
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M. dissertation titled “Yes means Yes: Study of Indian Rape Laws from the Lens of
Affirmative Consent Standard” submitted by Dhruv Duggal at
National Law University, Delhi is a bona fide record of his original work carried out under my supervision.
Signature: Dr. Mrinal Satish Professor (Law) National Law University, Delhi Place: New Delhi Date:
II
ACKNOWLEDGEMENT
I wish to express my profound gratitude to my respected supervisor, and guide, Dr. Mrinal Satish, Professor (Law), National Law University, Delhi, for his constant help and support. The idea of this dissertation stemmed from one of the lectures delivered by him. His vast knowledge and expertise on the subject helped me a lot during the course of this dissertation. He has always been a source of constant support and inspiration. His accessibility and constant insight into my work assisted me and encouraged me towards the timely and successful completion of this dissertation. He has always been kind with his words of inspiration, his valuable suggestions.
I would also like express my gratitude to Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University, Delhi and Prof. (Dr.) G.S. Bajpai, Registrar, National Law University, for their support and assistance, whenever necessary.
Finally, I wish to express my appreciation towards my family, and friends, for their constant support, and continuous encouragement. This work would not have been possible without them.
III
LIST OF ACRONYMS AND ABBREVIATIONS
& And
AIR ALL INDIA REPORTERS
C.r. L.J. Criminal Law Journal
CLAA Criminal Law Amendment Act
CrPc Code of Criminal Procedure
Del Delhi
Guj Gujrat
IPC Indian Penal Code
L. Rev. Law Review
OJLS Oxford Journal of Legal Studies
OUP Oxford University Press
Raj Rajasthan
SC Supreme Court of India
SCC Supreme Court Cases
Tex.Intl. L.J. Texas International Law Journal
US United States v Versus
Vol. Volume
WLR Weekly Law Reports
Yale L.J. Yale Law Journal
IV
LIST OF CASES
1. Bharwada Bhoginbhai Hirjibhai v State of Gujrat, (1983) 3 S.C.C. 217. 2. DPP v Morgan, (1976) A.C. 182. 3. Gajanand Maganlal Mehta v. State of Gujrat, (1985) S.C.C. OnLine Guj 147. 4. Harnarain Singh v. State of Punjab. AIR 1958 Pun 123. 5. Idan Singh v State of Rajasthan, (1976) S.C.C. OnLine Raj 83; 6. In re M.T.S., (1991) 588 A.2d 1282. 7. Madan Gopal Kakkad v Naval Dubey, (1992) 3 S.C.C. 204. 8. Mahmood Farooqui v State (Govt of NCT of Delhi) (2017) S.C.C. OnLine Del 6378. 9. Milind Ambadas Mhaske v State of Maharashtra, (1998) Cr Lj 1357. 10. Pratap Misra v State of Orrisa, (1977) 3 S.C.C. 41. 11. R v Camplin, (1845) 1 Car. & K. 746. 12. R v Fletcher, (1859) Bell C.C. 63. 13. R v Harling, (1938) 26 Cr. App. R. 127. 14. R v Howard, (1966) 1 W.L.R. 13. 15. R v Olugboja, [1981] 3 W.L.R. 585. 16. Rafiq v State of Haryana, (1980) 4 S.C.C. 262; 17. S. Ramakrishna v State, (2009) 1 S.C.C. 133. 18. Sakshi v Union of India, (2004) 5 S.C.C. 518. 19. Sanju Gope v State (1998) Cr LJ 1984; 20. State of Himachal Pradesh v Mango Ram, (2000) 7 S.C.C. 224. 21. State of Uttar Pradesh v Chhotey Lal, (2011) 2 S.C.C. 550. 22. State of Uttar Pradesh v Pappu, A.I.R. 2005 S.C. 1248. 23. Sudesh Jhaku v K.C.J., (1996) S.C.C. OnLine (Del) 397. 24. Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143. 25. Vinod Kumar v State of Madhya Pradesh, (1986) SCC OnLine MP 128.
V
TABLE OF CONTENTS
TITLE Page Number
DECLARATION BY THE CANDIDATE I
SUPERVISOR’S CERTIFICATE II
ACKNOWLEDGEMENT III
LIST OF ACRONYMS AND ABBREVIATIONS IV
LIST OF CASES V
CHAPTER- 1
INTRODUCTION 1-9
1.1. STATEMENT OF PROBLEM 4
1.2. OBJECTIVES OF THE STUDY 6
1.3. RESEARCH QUESTION 6
1.4. RESEARCH METHODOLOGY 7
1.5. CHAPTERISATION 7
CHAPTER- 2
HISTORICAL EVOLUTION OF THE DEFINITION OF RAPE 10-16
CHAPTER- 3
UNDERSTANDING ‘CONSENT’ 17-24
3.1. HISTORICISING CONSENT 17
3.2. EVOLUTION OF CONSENT IN COMMON LAW 18
3.3. UNDERSTANDING CONSENT IN INDIAN PERSPECTIVE 21 CHAPTER- 4
INTERPRETING THE ‘AFFIRMATIVE CONSENT 25-37
STANDARD’
4.1. HISTORICAL UNDERPINNING 25
4.2. AFFIRMATIVE CONSENT STANDARD: TOWARDS THE ‘YES 28
MEANS YES’ MODEL OF CONSENT
VI
4.3. APPLICATION OF AFFIRMATIVE CONSENT STANDARD IN THE 32
STATE OF CALIFORNIA
4.4. CRITICAL ANALYSIS OF THE AFFIRMATIVE CONSENT 35
STANDARD CHAPTER - 5
TRACING THE CRIMINAL LAW REFORMS WITH 38-49
REFERENCE TO RAPE IN INDIA
5.1. THE CRIMINAL LAW (AMENDMENT) ACT OF 1983 38
5.2. THE CRIMINAL LAW (AMENDMENT) ACT OF 2013 40
5.3. THE CRIMINAL LAW (AMENDMENT) ACT OF 2018 44
5.4. ANALYSING THE JUDICIAL DISCOURSE 46 CHAPTER - 6
CONCLUSION 50-52
BIBLIOGRAPHY 53-57
BOOKS 53
STATUTES 53
REPORTS 53
ARTICLES 54
WEBSITES 56
NEWSPAPER ARTICLES 57
VII
CHAPTER 1
INTRODUCTION
“Women are wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal…
Rape entered the law through back door, as it were, as a property crime of man against man. Woman, of course, was viewed as the property.”1
The above mentioned quote from the book Against Our Will: Men, Women and Rape, aptly describes the entire discourse as it once existed, when it comes to the offence of rape. The patriarchal nature of the society, violence against women, and the stereotypical behaviour of the society are age old concepts that have plagued the society since time immemorial. The offence of rape is malum in se. It is a barbaric act which shakes the very conscience of the society. The offence of rape has existed in our society since time immemorial. In English common law, the concept of rape developed not to protect the person of the women, but to protect the interest of the males that had her ‘possession’ at that particular time. The possession of the women was with the males, father being the one when the women was unmarried and once she was married, the husband. Therefore the crime of rape was considered to be a property crime.2 The offence once committed led to the devaluation of the property (the woman), and resultantly the property would bring in less dowry3. This reflects on the thinking of the society as it was back then, making it crystal clear that women were considered nothing more than a chattel, and the law was not aimed at protecting the person, and freedom of the women but in protecting the interest of the males in the property from sexual exploitation by other men.
The term ‘rape’ has been derived from the latin word rapio, meaning ‘to seize’. The offence of rape was therefore, considered to be ravishment of the women, and forcible
1 SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975). 2 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L. Rev. 1321, 1322 (2005). 3 Id. at 1328.
1 seizure of her person.4 The modern day elements that make the offence of the rape were absent in the ancient times, as the concept of rape was seen from the narrow lens of property. The violent act of rape was not considered against the body of the women but an offence of theft against the male who was her legal guardian.5 In terms of the principle of harm, the offence was against the legal guardian of the women. Under the ancient laws, as they existed in Babylon, it was legal for people to capture a woman outside the limits of the society, but not within.6 A perfectly accepted way of obtaining a wife was by paying a certain sum to the father of the woman. The price was generally fixed to be 50 pieces of silver.7 Therefore, rape from the viewpoint of the father was considered as ‘theft of virginity, an embezzlement of his daughter’s fair price in the market’.8
A lot of emphasis was laid on the virginity and chastity of the woman, which explains the present day stereotypes that guide the adjudication of cases pertaining to the offence of rape in India and elsewhere. However, the law was different when it came to a married woman. Shockingly enough the married woman was also blamed for the offence that took against her person and as a result she had to bear the burden of the unlawful act, and she was punished accordingly. The raison d'être for such kind of practice seems to be that if such an offence would have took place within the limits of the society, the woman would have shouted, or screamed and someone would have helped her, (if not, then she must have been a consenting party).9 However, if the same took place outside the vicinity of the city, there was no possibility of any help, and the perpetrator had to pay the bride price to the legal guardian of the woman and they were ordered to marry.10 This approach of the society towards the offence of rape, and the victim, reflects the strong patriarchal norms and values that not only existed but also guided the adjudication of such cases.
The offence of rape was akin to an offence against the property, and not against the physical and psychological integrity of the woman. The loss was of the legal guardian (the father, or the husband) and not of the woman. The offence was never seen as an
4 th 3 HARI SINGH GOUR, PENAL LAWS OF INDIA, 1843-1844 (7 ed. 1961). 5 DIPA DUBE, RAPE LAWS IN INDIA, 12-13 (LexisNexis Butterworths India) (2008). 6 Id. 7 Id. 8 BROWNMILLER, supra note 1 at 18. 9 DUBE, supra note 5 at 12. 10 Id. at 13.
2 invasion of the private person of the woman without her consent. The autonomy of the woman was never in question, neither during the commission of the offence, nor in the adjudication phase. Such was the condition, an outrage by all means. Rape is not only an offence against the person of the woman, but at the same time it completely corrupts her self-esteem and personality.11
However the definition of rape soon began to evolve and the focus shifted from it being a crime against the property, to being an offence of forcible seizure, and ravishment of the body of the woman, with force being a vital element. With the inclusion of force, the element of resistance stood incorporated in the understanding of the offence of rape, making it an important characteristic of the offence.12
The law kept evolving, and many jurisdictions started placing more reliance on the consent of the woman for the act and not on the dubious concept of resistance offered and injuries suffered as a result (at least in law). The traditional understanding of the offence of rape which was only limited to penile vaginal intercourse, broadened and resultantly brought other kind of acts within the ambit of the rape. India was slow to adapt, but eventually the definition broadened, expanding the scope from only penal vaginal intercourse. However, consent was never categorically defined in most of the jurisdictions, it only found mention in the definition but it was not defined, which led to its interpretation on a case to case basis, doing more harm than good.13
The Sexual Offences Act of 1956 which consolidated the criminal law in England had no mention of consent, and it defined rape as a felony against the woman.14 The element of consent was added much later though. It is important to note that in the Indian context, the element of consent was always there, as the offence of rape was considered to be an offence against the will of the woman and without her consent. The commonality being the absence of a proper definition of consent. This problem continued and later on, various jurisdictions (For example: Sexual Offences Act of 2003.) started defining consent.
11 Id. at 1. 12 LITTLE, supra note 2 at 1329. 13 Anant Prakash Narayan, Delhi High Court's Judgment of Mahmood Farooqui v. State (Govt of NCT of Delhi) and Debate of Consent in the Rape Cases: An Analysis, 12 NUALS L.J. 156, 189 (2018). 14 th ROOK & WARD, SEXUAL OFFENCES LAW & PRACTICE, 5 (4 ed. 2010).
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The jurisprudence around the concept of consent developed in such a manner that it became very important for a woman to say ‘no’ to an act of sex, and it led to development of phrases like ‘no means no’.15 The ‘no means no’ understanding put an additional burden on the victim, as the courts would more than often look into such efforts or signs on part of the woman which would reflect her reluctance to indulge in the sexual act, and ultimately her ‘No’.16
On the other hand, the affirmative consent standard heavily relies on ‘Yes means Yes’ concept.17 It provides for greater sexual autonomy to the woman, and it prevents the culprits from using the absence of a strong ‘no’ by the victim as a defence. On the contrary it provides for an affirmative ‘yes’ from the woman, an affirmative to engage in a sexual act. The presumption of consent that exists in saying no is negated when it comes to affirmative consent, because in this scenario the person willing to engage in a sexual act should wait for the other person to give an affirmative, that is a ‘yes’ to engage in a sexual act. 18
1.1) STATEMENT OF PROBLEM:
It is peculiar to note that the reforms that have taken place in Indian Laws relating to sexual offences, have always been in response to certain events or chain of events that led to social outrage, thereby forcing the legislature to enact amendments. The Criminal Law Amendment of 1983, The Criminal Law Amendment of 2013 and the Criminal Law Amendment of 2018 all have all been results of brutal and gruesome cases of rape. The Mathura Rape case19 resulted in the amendment of 1983, The Nirbhaya Rape case prompted the enactment of the amendment of 2013. More recently the two rape cases, the Kathua Rape case and the Unnao Rape case shocked the entire nation and led to the amendment brought by the government in 2018.
15 Noah Hilgert, The Burden of Consent: Due Process and the Emerging Adoption of the Affirmative Consent Standard in Sexual Assault Laws, 58 Ariz. L. Rev. 867, 873 (2016). 16 NARAYAN, supra note 13. 17 Jonathan Witmer-Rich, Unpacking Affirmative Consent: Not as Great as You Hope, Not as Bad as You Fear, 49 Tex. Tech L. Rev. 57, 58 (2016). 18 Id at 60. 19 Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143.
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The topic for my dissertation is Yes Means Yes: Study of Rape Laws in India from the lens of “Affirmative Consent Standard’’. In the study to be undertaken I would be reading into and analysing the historical evolution of rape laws in general, from it being a property crime, to a crime that is against the ‘bodily integrity and the sexual autonomy’20 of the woman, which would be understood in the light of subjective and objective standard of consent. I would also be on recent jurisprudential developments when it comes to consent and the recent development of affirmative consent standard, its adoption as a policy in various college campuses in California. I would also be engaging in the advantages and disadvantages of the same, thereby critically analysing the same.
The definition of consent would be looked into, as in Indian Penal Code, and as interpreted by the courts over a period of time in India. This would include looking into the definition of rape and the definition of consent prior to and after the amendment of 2013 and the shift from subjective standard of consent to the objective standard of consent as provided after the amendment of 2013.
I would also be focusing on the events that led to the criminal law amendments of 1983, 2013, 2018, also referring to the Justice Verma Committee report21 which was constituted by the government of India (after the horrific incident of rape that took place in Delhi and shocked the entire nation in 2012) to suggest reforms in criminal law to provide for speedy trials and enhanced punishment for those who were guilty of committing sexual assault against woman. Special emphasis would be on the definition of rape and aggravated rape, the new offences created (if any), and the sentencing regime as changed by the amendments, and critical analysis of the same.
The role of the courts in interpreting and constructing consent would also be seen, where the courts in cases like Mahmood Farooqui v. State of NCT of Delhi22, have construed consent from the subjective viewpoint, ignoring the affirmative consent standard, or the concept of positive consent.
20 Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimensions, 15 Journal of the National Human Rights Commission, 228, (2016). 21 JUSTICE J.S. VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, (January 23, 2013). 22 Mahmood Farooqui v State (Govt of NCT of Delhi), (2017) SCC OnLine Del 6378.
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In conclusion, I would be focusing on the rationale behind the reforms and amendments, their effectiveness and the role of consent as it has been, as it is, and as it will be. It would also be important to see if the definition of consent in the Indian Penal Code is anyway near to that standard which is provided by affirmative consent standard, and if not, then the possibility of having the same in Indian Context.
1.2) OBJECTIVES OF THE RESEARCH:
The following are the objectives of the study that has been undertaken:
1. To study the historical evolution of the definition of the offence of rape, and the elements that constitute the same. 2. To analyse the element of force and consent, and how they played a role in the adjudication of rape cases. 3. To study the concept of affirmative consent standard with special focus on California. 4. To analyse the concept of positive consent as it exists in the Indian Penal Code, after the incorporation of the definition of consent by the Criminal Law (Amendment) Act of 2013. 5. To examine the concept of affirmative consent standard and the ‘yes means yes’ approach vis-a-vis the ‘no means no’ approach. 6. To find out the suitability of the affirmative consent standard in the Indian context.
1.3) RESEARCH QUESTIONS:
1. Whether the element of consent as used in the no means no approach is a suitable way for adjudication of rape cases, and does it allow for the sexual autonomy of a woman, and the liberty to make choices. 2. Whether the newly adopted approach of affirmative consent standard (in California) is a suitable one, and does it rectify the flaws that exist in the ‘no means no’ approach?
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3. Whether the definition of consent in the Indian Penal Code is positive in nature, and has the Delhi High Court applied the same in a correct manner.
1.4) RESEARCH METHODOLOGY:
The researcher will be undertaking a doctrinal research on the topic undertaken for study by looking at the existing literature pertaining to the offence of rape in general and the historical evolution of the same. The research is analytical in nature as the researcher will be analysing the existing material on the concept of affirmative consent standard, and the application of the same in the state of California. It is descriptive in nature as the researcher will be discussing the various elements that constitute the offence of rape, the general discourse and the judicial discourse regarding the same.
For the abovementioned, the researcher will be relying upon various sources such as legislative enactments, case laws, books, scholarly articles by foreign and Indian authors, etc.
1.5) CHAPTERISATION:
The study has been divided into the following chapters:
Chapter 1 of this dissertation is Introduction, which deals with the offence of rape in general. The chapter introduces the general understanding of the offence of rape, and at the same time it also deals with the ‘no means no’ and the ‘yes means yes’ approach in general, but in such a way that is sets the course for further arguments on the same.
Chapter 2 (Historical Evolution of the Definition of Rape) discusses in detail the various elements (force, and consent) that constitute the offence of rape, and how these elements have had their effects on rape adjudication. In addition to this the chapter also focuses on the various other factors that have influenced rape (degree of resistance, presence of physical injuries on the body of the victim etc.)
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Chapter 3 (Understanding ‘Consent’) deals with the element of consent in detail. The chapter lays out the importance of consent as an element in the determination of the offence of rape. Moreover it discusses the inherent limitation of the element of force. The chapter traces the historical evolution of consent, and its contemporary understanding. The chapter focuses on the common law understanding of consent, and also as it existed and exists in India, after the criminal law amendment act of 2013.
Chapter 4 (Interpreting the Affirmative Consent Standard) elaborates the concept of Affirmative Consent Standard. It looks into the development of affirmative consent and the shift from ‘no means no’ to the ‘yes means yes’ approach. The chapter entails the various flaws that existed with the no means no approach, and the consequences of such a model. In contrast to this, the chapter dwells upon the ‘yes means yes’ approach which not only allows for the liberty of the victim, but it also puts the accused under the scanner, as he is the one who has to prove that he had obtained the affirmative consent of the woman before proceeding with a particular sexual act. In addition to this, the chapter looks into the affirmative consent model as applied in the state of California, specifically for the purposes of college campus. Finally the chapter deals with the critical analysis of the affirmative consent standard.
Chapter 5 (Tracing the Criminal Law Reforms with reference to Rape in India) discusses about the various criminal law reforms that have taken place in India as far as laws relating to sexual offences are concerned. The chapter focuses on the Criminal Law Amendments of 1983, 2013, and 2018, discussing the major incidents that led to the amendments. The chapter establishes that the abovementioned amendments have been in response to the gruesome incidents of rape, and therefore are generally reactionary in nature, so that the government can pacify the response of the society. The chapter looks into the recommendations of the J.S. Verma Committe report and the inclusion of the definition of consent after the Criminal Law (Amendment) Act of 2013. The chapter also analyses the various case laws, and the adjudication of rape by the Indian Courts, thereby looking at various stereotypes that mar such adjudication. The chapter also discusses the judgment of Delhi High Court in the recent case of Mahmood Farooqui23 and the implications of the same.
23 Mahmood Farooqui v State (Govt of NCT of Delhi) (2017) SCC OnLine Del 6378.
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Chapter 6 (Conclusion) concludes the dissertation. It discuses about the issues that are associated with the ‘no means no’ approach, and the importance of the ‘positive’ understanding of the element of consent. The chapter outlines the importance of deciphering consent from the lens of Affirmative Consent Standard.
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CHAPTER 2
HISTORICAL EVOLUTION OF THE DEFINITION OF RAPE
As discussed earlier, the offense of rape was never considered to be a crime against the person of the woman; on the contrary it was taken to be a property crime. The criminalization of rape in ancient societies was never intended towards providing justice to the woman or towards protecting her bodily integrity; on the contrary it was to protect the interest of the legal guardians of the woman like her father, brother, and the husband1. The societies evolved, and with them the understanding of the offence of rape also evolved, punishment for the same kept varying with time.2 During the times of Norman and Plantagenet the nature of the offence, and its seriousness was attached to the fact that the virginity and chastity of the woman was defiled.3 Nicholas J. Little in his article4 agrees with the same and also mentions that so much of importance was attached to the virginity of the woman that a woman who was not a virgin was not considered to be pure, and her marriageability prospects took a beating. She further provides that such beliefs are still prevalent in certain parts of the world. The Tanzanian Refugee camps inhabited by the Congolese are examples of the same5, “paying a dowry poses a serious challenge. As a result, rapes of young women have increased. Men sometimes rape women they want to marry in order to reduce the dowry price. Where as a bride's parents typically receive US$1,000, a bride who has been raped is worth no more than US$50.”6
Over a period of time, the condition that a woman has to be a virgin to put forth a charge of the offence of rape was relaxed, but the understanding of rape as an offence against the property continued.7 Such was the state of affairs that the law prescribed that a husband could not be held guilty of raping his wife, as she was considered to be
1 Shraddha Chaudhary, Reconceptualising Rape in Law Reform, 13 Socio-Legal Rev. 156, 160 (2017). 2 th ROOK & WARD, SEXUAL OFFENCES LAW & PRACTICE, 5 (4 ed. 2010). 3 Id. at 5. 4 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L. Rev. 1321, 1364 (2005). 5 Id. at 1328. 6 Id. 7 Id.
10 his property.8 This helps us understand the exemption of marital rape that existed in the common law until recently, and it still continues to be a legal exemption under the Indian Laws.9 Punishment for the offence of rape was death before the Norman Conquest, but later during the reign of William the Conqueror the punishment involved castration and the proprietor losing his eyes.10 During the later years some leniency was shown as far as punishment for the offence of rape is concerned, because it was limited to two years imprisonment and fine if the king so pronounced.11 During this time the offence of ravishing a woman was considered to be trespass. However this system did not last for long, as in 1285 the offence of rape was declared to be a capital felony, which so remained up until 1841.12
With the codification of the laws, two important elements of rape were established, which soon became a pre requisite for proving the charge of rape. The understanding of the offence became such that the offence of rape was considered as an act of sexual intercourse by a man with a woman by use of force and without the consent of the woman. These two were seen as separate and independent elements which had to be proved.13 During the course of time, the courts started looking for resistance, which would ultimately direct towards the use of force. The underlying principle was that a woman attached a lot of importance to her virtue and as a result she would not submit to the perpetrator without offering a stiff resistance. This led to the additional requirement of resistance, and the courts started looking for the same, and the element of resistance was satisfied if the woman put up a fight.14 With this came the presumption that a healthy woman can offer resistance by the use of her hands and limbs (sometimes this led to absence of resistance being construed as presence of consent), while on the other hand a weak woman may not be able to protect herself.15 Such kind of assumption shows the presence of stereotypes that have been in our society since long. However, slowly the resistance element required to prove the charge of rape got diluted, but in certain situation only. Circumstances where the culprit would use a weapon like a gun, or an object like a knife, were situations where
8 Id. 9 Sec 375, Exception 2. 10 ROOK & WARD, supra note 2 at 5. 11 3 Edw. 1 c.13 (1275). 12 13 Edw. 1 c. 34. 13 Little, supra note 4 at 1321-1330. 14 Id. 15 Id. at 1331.
11 the judges would relax the stiff resistance requirement, because in certain situations it was very difficult for the woman to resist, as it could have possibly led to her death. As Little puts it, “Women were thus presented with a Catch-22 situation when they reported their rape”, meaning thereby that in such situations if the woman were to offer resistance she would have suffered at the hands her perpetrator, and if she did not resist, and there were no signs or injuries (from resisting the force being employed by the culprit) of such resistance on her person, it could have adversely affected her prospects at the trial.16
In colonial India as well the presence of marks, scars or injuries played an important role in cases of rape, and sometime the presence or absence of such injuries would become the determining factor in proving the guilt or the innocence of the accused. For example, in Jakhoo wulud Bhowanee the accused raped a 12 year old and later contented that the act of sexual intercourse was consensual.17 The sessions court recorded conviction, as the judge was of the view that it is not possible that the girl could have consented since immediately after the act she went to report it. However the Bombay Sudder Foujdaree Adalat acquitted the accused stating that the act was not without the consent of the victim because no injuries were to be found on her person, and no one had heard her screaming or shouting. The judgement by Judge W. E. Frere seems to be influenced by preconceived notions about resistance and injuries being suffered in the course of rape.18 He relied on the comments made by Lord Chief Justice Hale where he talks about the offence of rape as an accusation easy to me made. The entire reasoning behind resistance being offered and getting injured is flawed as in some cases a mere threat may lead a woman to submit herself out of fear which is no way, manner or form reflects consent on her part, but this is what the courts would think.
The philosophy behind so much of reliance being placed on element of force is best explained by the comment of Lord Chief Justice Hale, “[r]ape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”19 The same is reflected by Kolsky in her article20 where
16 Id. at 1326. 17 Elizabeth Kolsky, The Rule of Colonial Indifference:Rape on Trail in Early Colonial India 1850- 1857, 69 The Journal of Asian Studies, 1093, 1097 (2010). 18 Id at 1098. 19 Little, supra note 4 at 1330.
12 she talks about rape in colonial India. She points out that during colonial times the judges and the juries were often of the impression that a charge of rape is false and the claims of the woman are not genuine.21 These presumptions were based on the English common law understanding which also reflected the same biases. All of this made it very difficult for the victim of rape to go through the trial. The implications of such bias were enormous. Unlike other crimes, where the focus of the law is on proving the commission of an illegal act, and the mental element for the same, in case of rape, higher evidentiary standards were set, which were pointed towards the testimony of the victim, the corroboration of such testimony and the credibility of such witness, in short placing the victim at the centre, rather than the accused.22
Credibility of the witness was often based on her demeanour during the trial, her past sexual relations, her character in general, the signs of physical violence, time taken to report the crime, were also all taken into consideration when the court was dealing with the offence of rape. All these requirements are such in nature, that unlike other trails where the accused is at the heart of the trial, in cases of rape it is the victim, who seems to have been given an active role, whereas the accused just playing the role of passive defendant. This is exactly what has been reflected by Corey Rayburn in one of his article23 where he engages with the idea that during the trial for the offence of the rape there is role reversal, the victim become the ‘active accuser’ and the accused becomes the ‘passive defendant’.24 In his article he actively reflects on the various stereotypes that exist in our society and that guide the courts and the juries while adjudicating cases of rape. If the victim does not fit into the preconceived image that the judge or the jury has in mind then it is less likely that the accused will get convicted, however if she is able to play her role as imagined and required by the judge or the jury then it is more likely that the accused will get convicted.
As explained by Susan Brownmiller, the misconception that a woman may be lying when accusing a man of rape is based on the assumption that a woman may generally lie. This is the reason why the trials were more directed towards proving the credit of the victim and not on proving the guilt of the accused. There is a complete role
20 Kolsky, supra note 17 at 1093-1117. 21 Id. 1093. 22 Id. 1097. 23 Corey Rayburn, To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials, 15 Colum. J. Gender & L. 437, 441 (2006). 24 Id. at 437-438.
13 reversal when it comes to proving the charge of the rape. The additional requirements of proving the charge such as the reporting of the offence without delay, the sign of struggle, the injuries on the body of the victim, and others requirements so as to corroborate the evidence given by the victim made it impossible for a victim to secure a conviction. Similar requirements were prevalent during the colonial years in India. The caste, chastity and virginity of the victim, all played an important role in determining the result of the trial. As mentioned earlier the decisions of Nizamut Adalat reflect that the judges were more interested in such trivial things, than deciding upon the simple question of ‘consent’. This has been the problem in various jurisdictions where the courts more often than do not decide the case before them on the question of consent, which in fact should be the primary and one of the most important consideration. What one can observe from such high standards (some even ruthless) is that the judges operated within a set of preconceived notions about the victims of rape, it appears as if they already had their mind made up that every rape complaint is just a false charge made by a woman against a man. The woman had to pass a special screening so as to prove her credit as a witness. Similarities exist in the way these notions developed and were applied to rape trials in England and their colony India.25
It is pertinent to note that no statutory definition of rape existed in England up until 1976.26 The Sexual Offences Act of 1956 just provide for rape to be a felony. Common Law defined the offence of rape as unlawful sexual intercourse without her consent, by force, fear or fraud.27 The judges started broadening the scope of the definition of rape when it stopped being a capital felony. In 1845, in the case of Camplin28, the court held that the use of force or threat was not essential for proving the offence of rape.
However during the same time many other courts directed the juries to look for the use of force by the accused and resistance being offered by the victim, as both of these are the essential ingredients to prove the charge of rape.29 The cases of
25 Kolsky, supra note 17. 26 ROOK & WARD, supra note at 5. 27 Id. at 6. 28 R v Camplin, (1845) 1 Car. & K. 746. 29 ROOK & WARD, supra note at 6.
14
Harling,30 and Howard31 are examples of the same. The decision in the case of Morgan32 led to lot of outrage, as it was held in this case that an honest belief that the victim was consenting to the act of sexual intercourse was an absolute and complete defence, even if there were no reasonable ground for such belief. In this case Flight Lieutant Morgan, accused of abetting and aiding the rape of his wife, claimed defence on the grounds that he had honest belief that he could do so because of the fact that he was married to the victim. Resultantly, the then government appointed a committee headed by Mrs Justice Heilbron, who was supposed to make recommendations.
The committee recommended that there was an urgent need to provide for a statutory definition as far as the offence of rape as considered.33 These recommendations were incorporated into the Sexual Offences (Amendment) Act of 1976, and now the definition of rape read, “A man commits rape if-(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.” This definition was limited to the penile vaginal intercourse and subsequently in the year 1994, the Criminal Justice Public Order Act broadened the scope of rape by including within its ambit anal intercourse.34 Currently the Sexual Offences Act of 2003 defines the offence of Rape as “(1) A person (A) commits an offence if—(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents”
In context of United States, in the case of State in the Interest of M.T.S35 the New Jersey Supreme court relaxed the element of force in proving the charge of rape. In this case the trial court had convicted the accused of second degree sexual assault, but
30 R v Harling, (1938) 26 Cr. App. R. 127. 31 R v Howard, (1966) 1 W.L.R. 13. 32 DPP v Morgan, (1976) A.C. 182. 33 ROOK & WARD, supra note 29. 34 Id. 35 In re M.T.S., (1991) 588 A.2d 1282.
15 the appellant division overturned the decision by stating that since the element of force could not be mad out through the facts, the charge of rape cannot be proved.36
The New Jersey Supreme Court did not agree with the reasoning of the appellate division and convicted the accused of rape. In United States, the state of New Jersey became the first to dilute the element or rather eliminate the element of force.
36 Id.
16
CHAPTER 3
UNDERSTANDING ‘CONSENT’
3.1) HISTORICISING CONSENT:
“The term ‘consent’ has been derived from the latin verb ‘consentire’, meaning to share physically, emotionally or intellectually.”1 Simply put consent is that which reflects one’s willingness to participate or to abstain from a particular act. Originally, the term consent emphasized on the inter-relational element that exists in all occasions of compliance.2 It reflected the communication of a voluntary agreement on part of a person. The understanding of consent as the objective indicator of mutual agreement led to its adoption in the judicial domain during the Greek and Roman times.3
With the passage of time, in Roman law the element of consent became an important pre requisite for a lot of important things including activities like marriage, sales, purchasing, and partnerships etc.4 Consent became the sole element that helped in differentiating between something which was legal and something which was not. For certain kinds of contracts, consent was the only requirement for it to be legally binding, and no additional requirements were imposed.5 Such contracts could become void just by negating the presence of consent. Similarly for validating a marriage, it was important that the parties consented to the act, and if there was absence of consent from either side the marriage stood dissolved. Therefore, consent developed as a very practical aspect of law, denoting the voluntariness of the parties to engage in a particular kind of act. It was a sign of agreement which meant the exercise by one of his autonomy to participate in a specific action. The practical nature of this element is proved by the fact that consent was not defined in law and there were no theoretical underpinnings to the same. The presence or absence of consent in reference to a
1 MARIA DRAKOPOULOU, CHOICE AND CONSENT, 12 (2007). 2 Id. 3 Id. 4 Id. 5 Id at 13.
17 particular act had to be determined depending upon the facts. Maria Drakopoulou reflects something similar in her article.6 She argues that determination of consent was case based, because the element of consent was considered to be less of a legal principle and more of a matter of fact.7
When it comes to the offence of rape, consent is one of the most important determinant which along with others helps prove or disprove the commission of the offence. As discussed earlier, the initial understanding of the offence of rape was such that lot of reliance was placed on the element of force. Since force was being applied, expectations as to resistance being offered by the woman developed. These developments were such in nature that the conviction was dependent to a great extent on the presence or absence of force rather than being dependent on the victim’s violation of person and the crime from victim’s perspective.8 Gradually the law changed in such a manner that from the narrow understanding of rape which was based on force and resistance, the law started focusing on the element of consent. The presence or absence of consent differentiated a voluntary sexual act from that of the offence of rape. This evolution was progressive in nature, but still certain important questions remained. Questions pertaining to the fact as to what would come within the ambit of consent, would it be limited to a mental consent, or will it extend to bodily actions depicting consent. Vanessa E. Munro in her article9 points out that consent in relation to the offence of rape also posed concerns about whether consent includes communication of an affirmative yes or a positive dissent and about the level of understanding or knowledge that the accused must have, and show of the victims consent in order to prove his guilt or innocence. 10
3.2) EVOLUTION OF CONSENT IN COMMON LAW:
Penile-vaginal penetration coupled with the absence of consent makes up the offence of rape. However up until 1841, the courts and juries were more interested in force
6 Id. 7 Id. at 14. 8 CLARE MCGLYNN & VANWSSA E. MUNRO, RETHINKING RAPE LAWS: INTERNATIONAL AND COMPARATIVE PERSPECTIVE, 19 (Claire McGlynn & Vanessa E. Munro eds., 2010). 9 Id. at 20. 10 Id. at 21.
18 and resistance as compared to consent. It is only after 1841 when the offence of rape was no longer a capital offence, and that the definition of rape widened to include the consent of the woman, even if there was no apparent use of physical force on the person of the woman. The inclusion of consent started with the case of Camplin11 where the court held that if a woman is not able to consent owing to her being drunk and someone commits non-consensual sexual intercourse with her it would amount to the offence of rape. This was the first instance where the court took upon itself to widen the scope of rape to include the element of consent. The court in a way paved way for a different understanding of the offence of rape, an understanding where the sexual autonomy of a woman to say yes or no to an act of sexual intercourse became relevant in addition to force and resistance. Similarly in the case of Fletcher12 it was held that it would amount to rape if a man engages with a woman in non-consensual sexual intercourse where the woman is asleep.13 The case of Olugboga14 is the one where the court gave its interpretation on absence of consent. The court in this case did not define consent, and moreover the court left it for the jury to decide the absence or presence of consent in a given case, holding that consent is something which cannot be a straightforward idea, as it reflects a wide range of states of mind ranging from actual desire to reluctant acquiescence15, and therefore it should be understood in its ordinary meaning.16 The court also held that the concept of consent may become much more difficult to unpack in cases where the offender uses threat but not violence.17 It held that,18
“In the less common type of case where intercourse takes place after threats not involving violence or the fear of it…, we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events leading up to the act and her reaction to them showing their impact on her mind. Apparent acquiescence after
11 R v Camplin, (1845) 1 Car. & K. 746. 12 R v Fletcher, (1859) Bell C.C. 63. 13 Id. at 36. 14 R v Olugboja, [1981] 3 W.L.R. 585. 15 th ROOK & WARD, SEXUAL OFFENCES LAW & PRACTICE, 36 (4 ed. 2010). 16 Id.at 36. 17 Id. at 37 . 18 R v Olugboja, [1981] 3 W.L.R. 585.
19 penetration does not necessarily involve consent, which must have occurred before the act takes place.”
However the court in no way, manner or form explained or categorized as to what threats could make a victim not consent. This was left for the jury to decide. The decision of the court in this case led to a lot of criticism from all stakeholders. The court had not been able to explain the kind of threats that could impact the victim to not consent, leaving it entirely for the jury to decide if a particular act was a relevant threat or not. This decision pointed to the glaring defects that existed in the criminal justice system in reference to the offence of rape due to the no proper definition or legal meaning of consent in the law. As a result the Sexual Offences Review suggested that consent be defined and the same is included in the law pertaining to sexual offences. The review rejected the approach that was taken by the court in the case of Olugboga19, and instead provided that20,
” The law sets the ground rules of what is and is not criminal behaviour, and all citizens need to know and understand what these are. This is particularly important because consent to sexual activity is so much part of a private relationship where verbal and non-verbal messages can be mistaken and where assumptions about what is and is not appropriate can lead to significant misunderstanding and, in extreme cases, to forced and unwelcome sex.”
The review observed that the offence of rape is the violation of the sexual autonomy of the other because it is an act without the consent of the other. It held that there exists no proper definition of consent in the law, and the courts and juries are dependent on the evolving definition through common law cases which themselves may change with changing decisions leading to confusion and ambiguity. It suggested that consent be defined in law. As a result of the same, the Sexual Offences Act of 2003 defined Consent under section 74 of the act as, “For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice.” The review had focused on ‘free agreement’ which is reflected in the definition. This was done with the motive that in situations where the complainant did
19 Id. 20 ROOK & WARD supra note 15 at 38.
20 not resist, or fight back, and was not injured should not be taken to mean that it was consent.
3.3) UNDERSTANDING CONSENT IN INDIAN PERSPECTIVE:
As has been discussed, consent has been one of the most essential elements in proving or disproving the commission of the offence of rape. It is pertinent to note that since the very beginning, the understanding of consent got diluted, due to the additional, extra-judicial requirements that were looked into, while ascertaining the presence or absence of consent. These additional grounds included the promptness of the victim to lodge the complaint, her character in general, her past sexual relationships, and the injuries on her body that she would suffer as a consequence to the resistance she would offer. These requirements came into consideration because of the general understanding that the accusation of rape was generally false. Sir Mathew Hale was of the same view, and he warned about the credit of the woman as a witness.21 All this led to a trial where apart from the defendant the victim was also on trial, and the focus shifted from punishing the guilty, to determining the credit-worthiness of the victim.22 As far as the India is concerned, consent as an element has been there from the very beginning, as it was contained in the statutory definition of rape, in the Indian Penal Code, 1860. Originally, the offence of rape as defined under section 375 of the Indian Penal Code, was when “a man committed rape if he had sexual intercourse with a woman under one of six circumstances enumerated in the section. Sexual intercourse was defined as penetration of the vulva by the penis to any extent, however slight; ejaculation was not required.”23 The penetration should have occurred without the woman’s consent.
The Indian scenario as well became plagued and burdened with the additional requirements which impacted the trial to a great extent. The belief that the accusation of rape is generally false, found a place in the Indian adjudication of rape as well. The development of medical jurisprudence in India during the colonial era is evidence to the same. The medical jurisprudence evolved in such a manner that one could observe
21 Anant Prakash Narayan, Delhi High Court's Judgment of Mahmood Farooqui v. State (Govt of NCT of Delhi) and Debate of Consent in the Rape Cases: An Analysis, 12 NUALS L.J. 156, 189 (2018). 22 Susan Estrich, Rape, 95 YALE L.J. 1087, 1090 (1986). 23 Durba Mitra & Mrinal Satish, Testing Chastity, Evidencing Rape, 49 EPW 51, 52 (2014).
21 that the focus was more on saving the defendant from false accusations, and less on dispensing justice to the victim who had suffered. It would be safe to say to say that the moral conduct of the survivor, her court room behaviour, all became as important as the sexual assault itself.24 This led to the belief that the accusations made by the woman cannot be trusted and therefore it was important that the testimony of the victim by corroborated by medical evidence, and this led to the growth of medico- legal evidence based on forensic science. However, this growth was more tilted in dealing with the alleged false accusations that the Indian woman allegedly made.
The first work on medical jurisprudence in India was by Norman Chevers in the year 1856.25 After Chevers, Isador B Lyon published his textbook in the year 1888. In both the sources the commonality was that both the authors suspiciously viewed the complaints made by women, and held that these kinds of allegations were generally false in nature.26 First Indian author who dwelled on medical jurisprudence in India was Jaising P Modi, who published his work ‘A Textbook of Medical Jurisprudence and Toxicology’, and this book is now the authoritative source as far as medical evidence in India is concerned. This book is being used in medical colleges, and is being referred to by the judges of the subordinate courts, and higher courts while adjudicating upon cases of rape. Modi’s book is heavily influenced from the earlier books that were written during the colonial era by Chevers and Lyon, and as a result, it also suffers from the same flaws.27 Modi’s books reiterate the views that were expressed by Chevers and Lyon regarding woman making false accusations.28 The books being used widely in India set wrong examples as they continue to prescribe the stereotypes as they once existed, resulting in a situation where such stereotypes still play an important role when the offence of rape is to be proved.29
The virginity of the survivor also became an important factor and the state of the hymen was taken into consideration. This led to the development of the finger test, by way of which a doctor would check as to how many fingers the vagina of the woman can admit. The second such test was to check the state of the hymen of the woman. The assessment of the hymen, coupled with the virginity of the woman is still an
24 Narayan, supra note 21. 25 Mitra & Satish, supra note 23. 26 Id. 27 Id. 28 Id. 29 Id.
22 important consideration as far as medical examination of the survivor in India is concerned. In addition to this other kinds of stereotypes that were added to the list were that healthy woman would offer resistance and a weak woman may not be able to do so.30
The past sexual history/conduct of the survivor was also admissible in the court of law, and this was majorly used to impeach the creditworthiness of the survivor- witness.31 Section 155(4) of the Indian Evidence Act provided for the same.32 This section was generally invoked by the defence to test the credit of the testimony of the survivor. The courts often judged the case on the past conduct of the survivor, instead of relying on the facts of the case at hand. This section was a result of the colonial understanding that a woman with past sexual experiences would consent to subsequent acts of sexual intercourse. In addition to this, the absence of definition of consent under section 375 of the Indian Penal Code, made it difficult for the survivor to get justice. However, section 155(4) was repealed in the year 2003, and it coupled with the proviso of section 146 (added via criminal law amendment act of 2013) of the Indian Evidence Act, made the previous/past sexual conduct or the questions as to the character of the survivor inadmissible in a court of law. Proviso to section 146 provided that as far as consent of the victim is in question in cases of rape, questions pertaining to the ‘general immoral character’ would not be admissible.33
As far as the definition of consent is concerned, there was no such definition as far as Section 375 of the Indian Penal Code is concerned, until the criminal law amendment act of 2013. Section 90 of the Indian Penal Code contained a negative definition of consent, and it provided situations where consent stood vitiated. The section provided that consent obtained under fear or misconception, the consent of an insane person, or of a child would not amount to consent as indented by the code. However, in the case of Harnarain Singh34, the Punjab and Harayana High Court explained as to what was meant by consent as far as the offence of rape was concerned. The court provided that “consent implies that consent implies voluntary participation by the woman, after the
30 Id. at 55. 31 Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimensions, 15 Journal of the National Human Rights Commission, 225, 227 (2016). 32 Id. 33 Satish, supra note 31 at 225, 230-231. 34 Rao Harnarain Singh v. State of Punjab. AIR 1958 Pun 123.
23 exercise of intelligence, and after having ‘exercised a choice between resistance and assent.’”35
The definition of the term consent was added into the code after the criminal law amendment act of 2013, which was brought by the government after the shocking and brutal incident of gang rape that took place in 2012, in the heart of national capital, Delhi, and the incident shook the conscience of society. The Criminal Law (Amendment) Act, 2013 was a result of this brutal incident and the amendment provided for the definition of consent under section 375 of the Indian Penal Code. The amendment provided for a positive definition of consent. The communication of consent is of the prime focus. Explanation 2 to the section provides, “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”.36
The focus of the law is on the unambiguous nature of the communication that takes place, where the woman should convey her willingness to engage in a particular sexual act. This definition of consent eliminates the possibility of extra-judicial factors playing a role in determination of rape, for example the injuries suffered, and the degree of resistance that is offered. Moreover, the proviso to explanation 2 of section 375 provides that in a situation where the woman does not offer resistance, such non resistance would not be taken as consent. The statute clearly provides that non resistance would not amount to consent. However, to what extent the courts have relied upon this definition is yet to be ascertained.
35 Rao Harnarain Singh v The State, (1957) SCC OnLine P&H 112. 36 Section 375, Explanation 2.
24
CHAPTER 4 Interpreting the ‘Affirmative Consent Standard’
The model of Affirmative Consent is recent and nascent in origin, and in order to comprehend the same it is essential that we engage with the historical perspectives that led to the development and adoption of affirmative consent as a model to determine the offence of rape. Affirmative consent model is of recent origin, because it is still in development stage and it is still in a stage where it is a proposed rape law reform in many legal law systems. For our purposes it is essential that we understand the rationale behind the adoption of this model of consent. Hilgert traces the evolution of the model of affirmative consent, dealing with the contemporary application of the same. The article deals with not only the meaning and scope of affirmative consent but also with the criticisms of adopting and applying the affirmative consent standard.1
4.1) HISTORICAL UNDERPINNING:
As has been discussed earlier, to prove the offence of rape, the main elements that were essential were that of force and consent. This was the common law understanding as had evolved over the years through the judge made, case based law. Consent was seen as a response to the inherent limitations that came with the element of force.2 The understanding of the law evolved in such a manner that in order to prove the offence of rape the presence of force and the absence of consent was required. Resistance offered and the injuries suffered therein were looked into when the courts would ascertain if or not was force applied. This made resistance, and injuries on the person of the victim (suffered due to such resistance) as additional requirements. The presence of physical harm was therefore required to prove the element of force. One of the major limitations with the force standard was that it placed an additional burden on the survivor rather than the accused. 3 Thus, if the
1 Noah Hilgert, The Burden of Consent: Due Process and the Emerging Adoption of the Affirmative Consent Standard in Sexual Assault Laws, 58 Ariz. L. Rev. 867, 899 (2016). 2 Id. 3 Id at 872.
25 court was not convinced with the degree of resistance offered, or the injuries suffered by the individual, the same would result in the acquittal of the accused.
Apart from these procedural flaws, another important concern that the affirmative consent model addresses is that of the lack of sexual autonomy as is generally associated with the ‘no means no’ model. The model of affirmative consent is there to provide relief to the survivor of a gruesome crime, unlike the force standard which seems to have been anti-woman. The model of affirmative consent caters to the needs of the class of survivors who lack evidence to support their claim of force being used.4 Although the law framers tried to move to a better standard, a standard of consent, they adopted ‘no means no’ standard, which again had certain defects. One of the common flaws being that when we adhere to the ‘no means no’ standard, we again place the burden of proof on the survivor, where she is the one who should be able to establish that she had communicated a clear and unambiguous ‘no’. Additionally the ‘no means no’ standard meant that conviction could take place for only such circumstances where the potential rape victim had categorically refused to engage in sexual intercourse.5
Little defines the ‘no means no’ approach as “the standard means that, if an individual verbally rejects sexual advances, that person must be seen as withdrawing consent to sexual contact.”6 Although the ‘no means no’ model had consent at its heart, but in situations where the defence could establish ambiguity in the communication of the no, it would lead to negative impact on the claims of the survivor. On the other hand as Harris argues, affirmative consent is a model which tries to lessen the problem/issue of miscommunication7 and “supplies a clear directive: anything less than a “yes’’ does not qualify as consent.”8 Though the affirmative consent model has been widely discussed in legal scholarship and has been written about, the model was for the first time adopted and codified by a private institution named Antioch University.9 Antioch University's "Sexual Offense Policy" provided:
4 Id. at 873. 5 Id. at 874. 6 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L. Rev. 1321, 1322 (2005). 7 Lucy Reed Harris, Towards a Consent Standard in the Law of Rape, 43 U. Chi. L. Rev. 613, 645 (1976). 8 Hilgert, supra note 1 at 874. 9 Id. at 875.
26
“1. For the purpose of this policy, "consent" shall be defined as follows: the act of willingly and verbally agreeing to engage in specific sexual contact or conduct. 2. If sexual contact and/or conduct is not mutually and simultaneously initiated, then the person who initiates sexual contact/conduct is responsible for getting the verbal consent of the other individual(s) involved. 3. Obtaining consent is an on-going process in any sexual interaction. Verbal consent should be obtained with each new level of physical and/or sexual contact/conduct in any given interaction, regardless of who initiates it. Asking "Do you want to have sex with me?" is not enough. The request for consent must be specific to each act. 4. The person with whom sexual contact/conduct is initiated is responsible to express verbally and/or physically her/his willingness or lack of willingness when reasonably possible. 5. If someone has initially consented but then stops consenting during a sexual interaction, she/he should communicate withdrawal verbally and/or through physical resistance. The other individual(s) must stop immediately. 6. To knowingly take advantage of someone who is under the influence of alcohol, drugs and/or prescribed medication is not acceptable behaviour in the Antioch community. 7. If someone verbally agrees to engage in specific contact or conduct, but it is not of her/his own free will due to any of the circumstances stated in (a) through (d) below, then the person initiating shall be considered in violation of this policy if: a) the person submitting is under the influence of alcohol or other substances supplied to her/him by the person initiating; b) the person submitting is incapacitated by alcohol, drugs, and/or prescribed medication; c) the person submitting is asleep or unconscious; d) the person initiating has forced, threatened, coerced, or intimidated the other individual(s) into engaging in sexual contact and/or sexual conduct.”10
It is pertinent to note that the codification of affirmative consent standard was met with huge backlash and public outcry.11 One of the major concerns that were expressed by the scholars was the rigidity and the emphasis that was placed on the verbal consent standard. The application of affirmative consent standard in this university made scholars realise about the problems if the verbal consent standard is
10 Id. at 875. 11 Id. at 876.
27 followed in the strict sense, where there is no scope for implied consent. In contrast to this the major backing against the implied consent standard was that it would allow for the same flaws to creep in, the flaw relating to “no means no” standard.12
4.2) Affirmative Consent Standard: Towards the ‘Yes means Yes’ Model of Consent:
For the purpose of this dissertation it is important to understand the shift that has taken place in various jurisdictions as far as the determination of the offence of rape is concerned. The shift that has taken place especially in various jurisdictions of United States is about the element of consent involved in the offence of rape. The traditional understanding that a woman should communicate ‘no’ had certain flaws that many a times led to the acquittal of the accused. This was so because the burden of proving that a particular act of sex was non consensual, it was the survivor who had to show that she had effectively communicated no, and that the accused proceeded with the act even after an unambiguous ‘no’. This indirectly put the victim on the trial rather than the defendant. Another important flaw that got attached with the no means no approach was that, in many cases the defence claimed that a no may not always signify a no, and that even after saying a no, a woman may or might engage in a sexual act. All these drawbacks led to the failure of the no means no approach, and what was required was a positive definition of consent. A definition that would put the burden on the accused, rather than the victim.
Little has dealt13 at length about the problem of defining the offence of rape, the problem of the ‘no means no’ approach, and how the same led to the adoption of the affirmative consent model, the purposes it serves and the critique of the same. She argues that an incident of rape occurs when a woman is subjected to an act of sexual intercourse, without her consenting to the same.14 As has been discussed earlier, the traditional conception of rape was focused on the use of force and the absence of consent by the victim. However, certain other elements were added with time,
12 Id. at 877. 13 Little, supra note 6 at 1321-1364. 14 Id. at 1335.
28 elements that were not mentioned in any statue but were still considered, like the time taken to lodge the complaint, the degree of resistance that was offered, the previous sexual conduct of the victim etc. As against this, Little argues that the courts should look into the fact that, “whether she wanted the particular act of sex on that particular day with that particular man”.15 This approach rightly focuses on the victim of the crime that has taken place, rather than burdening the victim.16 This approach rectifies the flaws of the earlier approach, (which in fact is still the approach in many jurisdictions) where the woman was subjected to a trial of its own, at the trial which in fact should be judging the guilt of the accused. Moreover, this approach helps in removing the resistance element from the picture and instead it focuses on the communication of the consent by the victim.
The acceptance of resistance as an element in contemporary times is problematic because by requiring the same the law is in a way accepting the fact that ‘force may be natural part of sex’.17 Such view entails the thought that women are subjects in sexual intercourse, having no sexual autonomy of their own, and are not capable of deciding their involvement in a particular act of sex is concerned.18 On the other hand the model of affirmative consent focuses on the sexual autonomy of a woman, and it treats women as an equal partner, whilst their engagement in a particular act of sex.19
“Yes means Yes”, aptly defines what is meant by affirmative consent standard, but it must be remembered that ‘yes means yes’ is only fit as a slogan and it should not be taken as a legal standard. The element of consent has for long been an indicator for the determination of the offence of rape, the presence and absence of consent being the decisive factor. The affirmative consent standard negates the presumption of consent, and on the contrary it focuses on the affirmative communication of the consent, or the communication of the willingness to engage in a particular act of sex. This approach mandates the presence of an affirmative, instead of requiring the woman to say ‘no’, this approach requires the woman to say ‘yes’, and therefore this approach puts an onus on both the parties to get the affirmation from the other, before
15 Little, supra note 6. 16 Id. 17 Id. 18 Id. 19 Id.
29 proceeding with a particular act of sex. In the case of M.T.S20, the Supreme Court of New Jersey while adjudicating a case of sexual assault held that, “permission to engage in sexual penetration must be affirmative and must be freely given.”21 This approach of the Court, shows the early development and acceptance of the requirement of an affirmative ‘yes’ before proceeding with an act of sex. The court held that, “In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant’s act of penetration was undertaken in circumstances that led the defendant reasonably to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely- given authorization for the specific act of sexual penetration.”22
Thus, the standard of affirmative consent requires that the person leading the act, and who wishes to engage in a sexual act must inquire and should be sure about the wishes of his partner, and her willingness to engage in a sexual act, and must receive consent for the same. It is pertinent to note that such an affirmation should be free from any kind of fear of threat, and if there exist no affirmative ‘yes’ from the partner than the instigator of the act should not proceed with the act. This approach is different from the ‘no means no’ approach, and one of the most important distinctions between the two is that unlike the ‘no means no’ standard, where there is presumption of consent, and where the onus is on the victim to prove that she did not consent, the ‘yes means yes’ approach focuses on the affirmation, and puts the onus on the culprit to prove that he had obtained the consent of the victim.23 This prevents the victim from being put to trial, and instead the affirmative standards allows for the court to scrutinize the actions of the culprit. The culprit may take the defence that the consent was implied and that it was communicated in a non verbal manner, but even in such a scenario it is for the culprit to prove his point, and it would be his story that would be focused upon by the prosecution and by the judge.24
20 State in the Interest of M.T.S., 609 A.2d 1266, 1267 (1992). 21 Id. 22 Id. at 1278. 23 Little, supra note 6. 24 Id.
30
The adoption of affirmative consent as a standard in adjudicating rape cases marks a shift in the approach of the society, and more importantly the courts, the shift in the way in which the courts perceive consenting to an act of sex. As argued by Little, our understanding of an act of sex is such, where the male is seen as the aggressor, and the female is taken to be the receptor, sex being an act which is mostly desired by men, and to which woman submit, ‘with varying degrees of willingness and for varying reasons.’25 On the contrary the affirmative consent model establishes a system where the woman and the man are placed on an equal pedestal and the woman is an equal partner in deciding if she wants to engage in an act of sex, and therefore the act takes place after the willingness of both the consenting parties has been obtained by each one the them, and the same has been communicated. Another important issue that is addressed by the model of affirmative consent is that it leaves no scope for defence of miscommunication as is generally taken by the accused. It addresses the issue that a woman may sometimes say ‘no’ to an act of sex, when instead what they really mean is a ‘yes’.26
There are certain important reservations with affirmative consent standard, (which I would be discussing in detail at a later point) the major one being that once the standard of affirmative consent be put in place, it establishes liability in a strict sense, and does not leave the accused with procedural safeguards. This criticism was at the root of the backlash that took place when the Antioch University codified its Sexual Offences Policy.27 As seen earlier the university had created such stringent norms, that it required the students to obtain an affirmative ‘yes’ at each stage of the interaction. Moreover the policy mandated that asking questions like, “Do you want to have sex?” were not enough, and that such questions should address the specific act in with which the instigator wants to proceed and that he must obtain the consent of the other party for the same.28 Therefore it mandated that consent should be taken for a particular act that one wishes to engage in. It is pertinent to note that this was a policy framed with the intention to tackle the problem of sexual harassment and sexual
25 Id. 26 Id at 1348. 27 Id. 28 Id.
31 assault which was prevalent on the campus and therefore replicating the same on a bigger scale may not be appropriate.
However, it would be safe to say that the model of affirmative consent can be adopted and applied in other ways, ways that don’t make the offence of rape a strict liability offence.29 Applied in such a way, affirmative consent standard would achieve a lot, especially when it comes to the males considering females as an equal partner in an act of sexual intercourse. It allows for the sexual autonomy of the women to be taken into consideration, unlike the ‘no means no’ approach which avoids such consideration. It would ‘encourage men to engage in rational behaviour by ascertaining and respecting the wishes of their prospective sexual partners.’30 Additionally, it would also encourage women to express more freely their desire and their willingness to engage in an act of sex.
4.3) Application of Affirmative Consent Standard in the State of California: The state of California altered its college policies relating to sexual assault on campus in the year 2014. California became the first state in the United States of America to adopt and implement the affirmative consent standard as its college campus policy.31 Gov. Jerry Brown had signed the bill making it into a law, whereby affirmative consent was introduced as a policy for college campuses and the colleges that were receiving the same are bound by the changed law. The law aims to address the ambiguity in trial and adjudication of rape cases owing to the ‘no means no’ mantra. It also aims to improve the manner in which the universities address and handle matters of sexual assault on campus.32 The main aim of the legislature in codifying affirmative consent as far as college campuses in the state of California are concerned was to combat the increasing cases of sexual assault. Pineau made the observation
29 Id at 1349. 30 Id at 1350. 31 Erick Kuylman, A Constitutional Defence of Yes Means Yes - California's Affirmative Consent Standard in Sexual Assault Cases on College Campuses, 25 S. Cal. Rev. L. & Soc. Just. 211, 213 (2016). 32 Bill Chappell, California Enacts 'Yes Means Yes' Law, Defining Sexual Consent, NATIONAL PUBLIC RADIO (May 13, 2019, 16:45 PM), https://www.npr.org/sections/thetwo way/2014/09/29/352482932/california-enacts-yes-means-yes-law-defining-sexual-consent.
32 that, “In a culture where incidences of sexual assault are verging on epidemic, [a rape law] which regards mere submission as consent fails to offer persons vulnerable to those assaults adequate protection.”33 This is what marked the shift from the ‘no means no’ to the only ‘yes means yes’ approach, and the affirmative consent standard is an apt reply to the situation.34
As discussed earlier, the traditional common law understanding of rape, required ‘varied degrees of action on part of the victim’,35 and this put victim on trial, instead of the accused, because it was the victim who had to show that she resisted, that force was used, and more importantly that she had refused, or had not consented to that particular act of sex. The communication of such negation of consent could have been verbal or through other kinds of non verbal cues.36 Additionally, in such situations there was presumption of consent as far as the victim is concerned, and the negation of such presumption only took place when the women did something to that affect. This understanding stands changed by the rules that now exist as law in the state of California. The law in California makes it essential for the alleged culprit to obtain the consent of the other party, and therefore the onus is on the alleged culprit to show that there was an affirmative yes to engage in a particular sexual act, and the same was affirmatively communicated to the alleged culprit.37 More importantly, such a law brings a paradigm shift, and it establishes a regime where the absence of resistance or the non communication of consent cannot be taken to understand as the presence of consent.
The state of California made the affirmative consent law effective from the 1st of January 2016. The law defines ‘affirmative consent’ as, ““Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked
33 Lois Pineau, Date Rape: A Feminist Analysis, 8 L. & Phil, 217, 219 (1989). 34 Little, supra note 6 at 1323. 35 Kuylman, supra note 31. 36 Id. 37 Id.
33 at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”38
The affirmative consent model provides for such a system whereby both the parties that are to engage in an act of sexual intercourse, should have consented before indulging in the same. Both the parties should have consented in affirmative, before either of the parties can proceed. Each party is required to give their affirmative consent, and such an affirmative consent must consist of three essential elements, i.e. “i.) Affirmative, ii.) Conscious, and iii.) Voluntary agreement.”39 Moreover, the policy provides that the affirmative consent that exists should be “ongoing throughout a sexual activity” and it can be “revoked at any time”40 during an act of sexual intercourse. The change in law and the adoption of the affirmative consent standard creates an environment of ‘communicative sexuality’41, thus, recognizing that women are entitled to make decisions and choices, and just like men, they are also entitled to ‘sexual autonomy’.
The policy prescribes for ‘preponderance of evidence’42, as the threshold that is required while adjudicating upon the claim that has been made under the newly adopted affirmative consent standard. Preponderance of evidence as a threshold has received mix response, while some in favour and some against the same. Kuylman argues in favour of the preponderance of evidence as a standard, while comparing the same with the other available mechanisms.43 Preponderance of evidence can be understood as the standard of evidence that requires the university to be sure that there exit’s a 51 percent chance that the alleged culprit has engaged in an act of sexual intercourse, without taking affirmative consent of the other party, and when the college/university has such degree of evidence, it can proceed to discipline the child
38 Cal. Educ Code § 67386 (2015). 39 Kuylman, supra note 31 at 220. 40 Id. 41 Id. at 221. 42 Id. at 233. 43 Kuylman, supra note 31. (The author discusses at length about the other mechanisms that can be used instead of ‘preponderance of evidence’. The author discusses about, ‘Beyond a Reasonable Doubt’ Standard, and the ‘Clear and Convincing Standard’, and discusses the disadvantages of these two standards, and ultimately chooses the ‘Preponderance of Evidence’ standard.)
34 as per the policies of the college.44 It is argued in favour of the preponderance of evidence standard, that such a standard maintains the balance and combats the wrongful prosecutions that may take place, and the wrongful acquittals.45 The preponderance of evidence leads to a mid ground where the procedural safeguards, the rights of the accused are ensured, and at the same time victim is not burdened, unlike in the ‘no means no standard’.
4.4) Critical Analysis of the Affirmative Consent Standard: Affirmative consent standard marks a shift in the way we have approached the offence of rape since ages. It replaces the ‘no means no’ approach, and instead places the onus on the alleged culprit to prove that he had obtained consent of the victim. Affirmative consent standard eliminates the possibility of defence that is generally taken by the alleged culprit that is the defence of miscommunication, and uncertainty in comprehending the cues of the women. However, it is often argued that the imposition of affirmative consent standard creates an unnecessary step before one can proceed with an act of sexual intercourse. Little draws a beautiful analogy to rebut this claim.46 Little argues that it is normal for one to ask permission before one can borrow a roommate’s car, however one is not okay with the imposition to get an affirmative consent before proceeding, and this is pretty unusual.47
Another problem that affirmative consent standard addresses is that of the lack of sexual autonomy that women have. It is the general view of the society that the males are the ones that lead into an act of sexual intercourse, whereas the women are just passive receptors. This reflects the hypocrisy that exists in the society, because men who engage in sexual intercourse are said to be successful, and their “worth rises”,48 whereas on the other hand the women who engage in sexual activities ‘more willingly than society deems appropriate’ are looked down upon and are seen as ‘sluts’.49 Affirmative consent standard rectifies this double standard and provides for a legal regime whereby the women is also entitled to sexual autonomy, is allowed to make
44 Id. 45 Id. 46 Little, supra note 6 at 1352. 47 Id. 48 Id. 49 Id.
35 her choices, and willingly express her desires. Affirmative consent standard marks the acceptance by law, that the women are equal consenting partners in an act of sexual intercourse, and that they stand on an equal pedestal when it comes to having desires and expressing the same.50 However, affirmative consent standard is not free from criticism. One of the major criticisms is that it converts the offence of rape into a strict liability offence, where there exist no procedural safeguards for the person who has been accused. This claim might be an exaggeration of sorts, because the accused is allowed with the procedural safeguards like the right to be heard, the right to counsel, the right to appeal, etc.
Another major criticism that is levelled against the affirmative consent standard is that is shifts the burden of proof, which is against the mandate that a person is innocent unless proven guilty. It is pertinent to note that affirmative consent standard in no way, manner or form; it only alters the definition of consent, making it a yes based approach rather than the flawed ‘no’ based approach. It is still for the state to prove beyond reasonable doubt that alleged offence has been committed by the alleged culprit. There are no procedural changes that are brought into effect by the adoption of affirmative consent standard. It only creates a situation where presumption of consent does not exist, and where the absence of resistance, or injuries should not be implied as consent by the courts.51
It is often argued that the adoption of affirmative consent standard may lead to an increase in reporting of false cases. This allegation is based on the abovementioned premise, that is the shift in burden, and that affirmative consent standard establishes a strict liability offence. However, this criticism also falls flat, because this criticism is based on the traditional understanding of the offence of rape, where it was held that an allegation of rape is generally false, and that there is a general tendency amongst women to lie. These arguments hold no ground in the modern day world where both the sexes are equal before the law, and there is no logical and principled expiation as to why would women make false accusations.
50 Id. at 1356. 51 Kuylman, supra note 31 at 239.
36
Last but not the least, it is argued against the adoption of affirmative consent standard hampers the intimacy that exist between couples, by imposing the need to obtain an affirmative at each stage, and for every particular act of sex that one wishes to engage in. This criticism also cannot be accepted in whole, because it might be true to a certain extent that adoption of affirmative consent standard may change the ways in which people operate, but it would not hamper the intimacy that is shared by couples.52 On the contrary the study by Pineau, shows that affirmative consent standard can help improve the intimacy that couples share due to increased interaction and active communication that will take place.53
Therefore, affirmative consent standard is the best way to rectify the flaws of the ‘no means no’ approach, and in addition to this, it also acknowledges the fact that women are capable of having sexual desires, and they are capable of expressing the same.
52 Little, supra note 6 at 1363. 53 Id. at 1359.
37
CHAPTER 5: Tracing the Criminal Law Reforms with reference to
Rape in India
Andrew Ashworth in this article ‘Is Criminal Law a Lost Cause’,1 discuses at length about the issue of unprincipled criminalization and it leading to over criminalization. However, apart from this issue, another important observation that he makes is that, in the recent past criminalization has been in ‘response to a particular event or series of events giving rise to social concern.’2 This statement fits aptly to the Indian scenario, as far as the law reforms relating to the offence of rape are concerned. In India, law reforms relating to the offence of rape have taken place in three major stages and each amendment has been a result of a societal moment that has taken place due to an incident of rape. I will now be tracing the reforms, and the researcher would be analysing as to how courts have interpreted the laws and have applied the same.
5.1 The Criminal Law (Amendment) Act of 1983:
It was in the year 1972 that Mathura, a tribal girl was raped by two policemen, within the premises of the police station.3 The trial court had acquitted the accused, but on appeal, the Bombay High Court recorded a judgment convicting both the accused. An appeal was made before the Supreme Court of India, and in one of the most shocking decisions, the court acquitted the accused policemen, and the reasoning of the court was outrageous, offensive and irrational to say the least. The court held that since there were no injuries on the person of the victim, it could be said that it was a ‘peaceful affair’, and moreover the court made the erroneous remark that since she was habituated to sexual intercourse4, it was difficult to believe that she did not consent. The court also held that due to the absence of injuries it cannot be said that the girl had offered resistance, and therefore her claim is not right.5 The court also erred in interpreting consent as given under section 375 of the Indian Penal Code (Hereinafter referred to as IPC). The decision of the court led to massive outrage,
1 Andrew Ashworth, Is Criminal Law a Lost Cause?,116 L.Q. Rev. 225, 254 (2000). 2 Id at 225. 3 Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143. 4 Id. at 146. 5 Id. at 148.
38 including backlash from legal scholars6 as well. The reasoning of the court was so anti-women in nature that all sections of the society wanted the Supreme Court to review its decision; however court did not do so.
The decision of the court, and the major backlash that followed, pressed the legislature to enact laws that could deal with situations where persons in authority commit the crime of rape on women under their authority. The same was discussed in the parliament as well, and it was observed that such incidents of ‘power rape’7 should be addressed. It is pertinent to note that the Law Commission in its 42nd report in 19718 had made the suggestion that the IPC should be amended in such a manner that it caters to the changing scenarios. The report had recommended for the creation of offences that could address the offence of rape, where the culprit was a person in authority over the victim, and such authority was misused. However, the government did not pay any attention to this report. After the Mathura case, the Government requested the Law Commission to look into the laws of rape and assault on women. The Commission again submitted its report, i.e. the 84th report in the year 19809, which made recommendations regarding the element of consent, as the ‘antithesis of rape.’10 The commission recommended that the definition of consent should be an active one, and it should be free and voluntary, and there should be no place for implied consent, i.e. consent assumed due to silence or submission.11
The Criminal Law (Amendment) Act, 1983, brought amendments to the criminal laws. The amendment provided for aggravated rape, and it listed seven situations which would result in aggravated rape including gang rape, custodial rape, rape on pregnant woman etc. The amendment also provided that the consent stands negated when obtained as a result of ‘putting any person in fear of death or hurt in whom she is interested.’ The amendment increased the punishment of rape. It is important to
6 The legal luminaries included Prof Upendra Baxi, Prof Vasudha Dhagamwar, Prof Raghunath Kelkar, and Prof Lothika Sarkar, and all these professors wrote an open letter to the Supreme Court, condemning the decision, as being violative of the basic fundamental human rights, and the liberty of Mathura. 7 DIPA DUBE, RAPE LAWS IN INDIA, 51, 52 (LexisNexis Butterworths India) (2008). 8 LAW COMMISSION OF INDIA, INDIAN PENAL CODE, (1971), http://lawcommissionofindia.nic.in/1-50/Report42.pdf (last visited April 15, 2019). 9 LAW COMMISSION OF INDIA, RAPE AND ALLIED OFFENCES SOME QUESTIONS OF SUBSTANTIVE LAW, PROCEDURE AND EVIDENCE, (1980), http://lawcommissionofindia.nic.in/51- 100/Report84.pdf (last visited April 15, 2019). 10 DUBE, supra note 7. 11 Id. 51-53.
39 note that the amendment did not provide for a definition of consent even after the recommendation of the law commission. Thus, consent was still not defined, and it meant that the presence or absence of consent could still be decided by court based on erroneous factors like in the case of Mathura.12
5.2) The Criminal Law Amendment Act of 2013:
Just like the criminal law amendment that took place in 1983, the Criminal Law (Amendment) Act of 2013 (Hereinafter referred to as CLAA, 2013), was reactionary in nature. It was a result of the massive outrage from the public over the cruel and gruesome case of gang rape that took place in Delhi, in 2012. It is not that before the incident of 2012, amendments were not required. In fact in the case of Jhaku13 it was alleged that the accused had forced his penis into the mouth of his daughter, however he could not be charged with the offence of rape because the offence of rape in IPC was only defined to include penile-vaginal penetration, and the act of the accused did not fall within the ambit of the definition. Thus he was charged under section 354 of the IPC, which provided for outraging the modesty of the woman. The same was challenged before the Supreme Court;14 but the court refused to read words into the then existing definition of rape even after agreeing that the scope of the definition should be broadened, and left it for the legislature. It is pertinent to note that the Law Commission had recommended the broadening of the definition of rape in its 172nd report.15 The commission had recommended that the definition of rape be broadened to include penetration of other orifices as well as penetration by objects and body parts’,16 but the law did not change up until the amendment of 2013.
After the incident that took place on 16th December, 2012, the Government of Union of India, appointed the Justice J.S. Verma Committee17 to look into the rape laws, and to make recommendations and suggestions so that adjudication of rape laws could be
12 Id. at 51. 13 Sudesh Jhaku v K.C.J., (1996) S.C.C. OnLine (Del) 397. 14 Sakshi v Union of India, (2004) 5 S.C.C. 518. 15 LAW COMMISSION OF INDIA, REVIEW OF RAPE LAWS, (2000), http://www.lawcommissionofindia.nic.in/rapelaws.htm (last visited April 15, 2019). 16 Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimensions, 15 Journal of the National Human Rights Commission, 225, 226 (2016). 17 Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, (2013).
40 made more efficient, and for enhanced punishment for individuals guilty of committing sexual assault against women. The Committee submitted its report on January 23, 2013. The Committee made a lot of recommendations, most importantly that we should change our perspective of how we approach the offence of rape. The committee was against the view that had been taken by the courts over a period of time where the courts saw the crime of rape against the ‘honour and chastity’ of women18, and as mentioned earlier, a crime that damages the marriage prospects of women. Instead the committee suggested that the offence of rape be viewed as an offence against the bodily integrity and sexual autonomy of women.19 The committee had also recommended that the victim of the offence of rape be made gender neutral, and that the offender remain gender-specific, however this recommendation was not accepted by the parliament, and therefore the offence of rape still continues to be an offence against the person of a woman. Similarly the recommendation of the committee that marital rape be made an offence punishable by law was also not entertained, and no amendment was made to this effect.
The CLAA, 2013 widened the scope of the definition of offence of rape20, so as to include acts other than penile-vaginal penetration, i.e. penetration of mouth, vagina,
18 Rafiq v State of Haryana, (1980) 4 S.C.C. 262; Madan Gopal Kakkad v Naval Dubey, (1992) 3 S.C.C. 204. 19 JUSTICE J.S. VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, (January 23, 2013). 20 Section 375 provides, “375. A man is said to commit "rape" if he-— a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.
41 anus, urethra by penis.21 In addition to this, the amendment criminalizes acts where any object or body part (but not the penis) is inserted into the vagina, urethra or anus.22 The act also criminalizes acts whereby any part of the body of the woman is manipulated in such a way which causes penetration of the vagina, urethra, anus, or any other part of the woman’s body,23 and acts where there is application of the mouth of a man to the vagina, anus or urethra of the woman.24 One other inclusion to the section is that of the definition of consent. After the amendment of 2013, the IPC for the first time has a definition that is specific to sexual offences. Consent has been defined as, “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:”25
As can be observed from the definition, the focus of the law is on the unambiguous nature of the communication that takes place, where the woman should convey her willingness to engage in a particular sexual act. This definition of consent eliminates the possibility of extra-judicial factors playing a role in determination of rape, for example the injuries suffered, and the degree of resistance that is offered. Another important aspect of this definition is that it limits the consent to a specific sexual act, which means that consent for a particular sexual act cannot be taken as an implied consent for other sexual acts.26 Moreover, the proviso to explanation 2 of section 375 provides that in a situation where the woman does not offer resistance, such non resistance would not be taken as consent. This eliminates the possibility of ‘injuries suffered during the ordeal’ guiding the trial. The statute clearly provides that non resistance would not amount to consent. The CLAA, 2013 has widened the scope of consent, and it is for the better. The age of consent has also been increased from 16 to 18. The main intention of the legislature seems to ban all sorts of underage sexual
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 21 Section 375 (a). 22 Section 375 (b). 23 Section 375 (c). 24 Section 375 (d). 25 Section 375, Explanation 2. 26 Satish, supra note 16 at 225-229.
42 activity; however there are certain inherent problems with this approach. Michele Oberman argues that punishing underage sexual activity may not be the right approach, and there can be other mechanisms to deal with such issues.27 A different form of penal approach, including non-incarcerative forms28 can be followed in situations where the people involved in consensual sexual acts are underage.
Prior to 2013, IPC provided for seven situations where an offence of rape would be aggravated, however after the amendment of 2013, there exist fourteen such situations where an offence of aggravated rape could be made.29 In addition to this, Section 376A has been added based on the recommendation of Verma Committee, whereby minimum punishment of 20 years and a maximum of death (it is pertinent to note that the committee and had not recommended death sentence) has been provided for situations where death is caused, or an injury is caused leading to permanent vegetative state of the victim while aggravated rape is being committed. Moreover, the amendment also creates a new list of non penetrative sexual offences including sexual harassment30, use of criminal force to woman with intent to disrobe31, voyeurism32, and stalking33. The amendment also brought a change to the sentencing regime and increased the minimum and maximum punishment of certain offences. The maximum punishment of aggravated rape was increased to imprisonment for the rest of natural life; for the purposes of section 376A, a minimum of 20 years imprisonment, with death penalty as an option; for the cases of gang rape, a minimum of 20 years imprisonment, and a maximum for a person’s natural life, and in cases of repeat offenders minimum imprisonment for the rest of natural life, with death penalty as an option.
Therefore, the CLAA, 2013 has brought a lot of changes to the rape laws in India34, changes that were much needed, changes that led to the widening of the scope of the definition of offence of rape, and aggravated rape, changes that led to consent being
27 Michelle Oberman, Regulating Consenseual Sex with Minors: Defining a Role for Statutory Rape, 48 BUFF. L. REV. 703, 784 (2000). 28 Satish, supra note 16 at 232. 29 Section 376 (2) (a)-(n). 30 Section 354-A. 31 Section 354-B. 32 Section 354-C. 33 Section 354-D. 34 For a more detailed analysis on the procedural changes see Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimensions, 15 Journal of the National Human Rights Commission, 225, 246 (2016).
43 defined for the purposes of the offence of rape, and changes to the minimum and maximum punishment of the offences.
5.3) The Criminal Law (Amendment) Act of 2018:
Just like the earlier two mentioned amendments, the Criminal Law (Amendment) Act of 2018 (hereinafter referred to as CLAA, 2018), was also reactionary, and responsive in nature. The public outrage over the Kathua35 and Unnao36 rape cases led the government to promulgate the CLAA, 2018. The act made changes to IPC, and also added certain new offences. For our purposes it would be sufficient to deal with the amendments made in the substantial law.
Section 376 of IPC provides for punishment of rape simpliciter37, and for aggravated rape.38 Prior to 2018 the minimum punishment for rape simpliciter was 7 years; however the amendment has now increased the quantum of punishment to a minimum of 10 years. The amendment has also added an offence which provides for punishment of rape on a woman less than sixteen years of age; such a person shall be punished with rigorous imprisonment of a minimum 20 years, and the maximum being life imprisonment.39
The amendment provides for the creation of a new offence, section 376 AB, which provides for a minimum punishment of 20 years for rape on a woman who is less than 12 years of age, the maximum punishment being life imprisonment for the remained of natural life, with death penalty as an option. It is pertinent to note that for the first time death penalty has been introduced with the aim that it would be able to discourage people from committing such acts.
35 The Kathua rape case refers to the alleged rape and murder of an 8 year old who was abducted. The incident took place in a village named Rasana situated near Kathua in Jammu and Kashmir. The girl was not to be seen for around a week, after which her dead body was recovered. The Supreme Court transferred the trial to Pathankot district, so as to keep the trial fair, and save it from political or societal influence; See State of Jammu Kashmir v Deepak Khajuria, 34/2018. 36 The Unnao rape case refers to the alleged rape of a 17 year old, and the main accused was a sitting Member of Legislative Party of the ruling party. The Allahabad High Court had transferred the case from Unnao to Lucknow under POCSO. See Re: An Unfortunate Incident in Unnao of Rape and Murder Published in Various Newspaper v State of U.P. (W.P [Cri.] 1 of 2018; C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018). 2018 37 Section 376 (1). 38 Section 376 (2). 39 Section 376 (3).
44
In addition to this Section 376DA & 376DB were added which provided punishment for gang rape on a woman under sixteen and twelve years of age respectively. The punishment for both these offences has been set at imprisonment for life, but in case of gang rape on a woman under 12 years of age, a sentence of death penalty can also be given.
The main aim of the parliament seems to be to creation of deterrence and resultantly the sentencing regime has been enhanced. One of the major flaws of the amendment is that it has led to diminishing of the distinction that existed between cases 376(1) and 376(2). Since the amendment increases the punishment of rape simpliciter to 10 years there stands no distinction between the minimum punishment for the same and for aggravated form of rape. The distinction therefore seems to have been rendered ineffective.
Another important issue is that of the introduction of death penalty, the reason for the same seems obvious, i.e. to create deterrence, however it must be remembered that such a provision can lead to underreporting of cases, and moreover such a provision may not help in lowering the rate of crime commission. It has been said that the inclusion of death penalty is an example of a law ‘that is as thick on rhetoric as it is thin on empirical evidence.’40 It must be remembered that even after the incident of gang rape that took place in 2012, there was a strong public demand of death penalty for the culprits, however the Justice Verma Committee had recommended against the same.
The committee had noted that death penalty would be ‘a regressive step in the field of sentencing and reformation.’41 However, the introduction of death penalty as an option only seems to be a knee-jerk reaction, so that the government may play safe, and save itself from the backlash. The amendment therefore seems to be addressing more of public backlash and less of the real problem.
Another ambiguity that exists in the current laws after the amendment is that it creates a difference between IPC and POCSO.42 POCSO is a gender neutral law where a
40 Anup Surendranath, Ineffective and Arbitrary, THE HINDU, (May 14, 2019, 18:50 PM), https://www.thehindu.com/opinion/op-ed/ineffective-and-arbitrary/article23163829.ece 41 Supra note 17 at 245. 42 The Protection of Children from Sexual Offences Act, 2012, no. 32 of 2012, Acts of Parliament, 2012.
45 child is defined as one who is under the age of 18 years. The act provides for a maximum punishment as imprisonment for life, whereas under the IPC maximum punishment for rape on a minor girl has become death, thereby creating ambiguity between the two.
The amendment has been able to create new offences, and it has also increased the minimum and maximum punishment for certain offences, but the amendment has failed to recognize the principles of criminal law on which it should have been based. The amendment is purely unprincipled which has been enacted to fight the backlash, and to address the public resentment. In order to create deterrence, the legislature has skipped the stage where scientific application of principles leads to criminalization, and instead it has led to over criminalization.
5.4) Analysing the Judicial Discourse:
As mentioned earlier, the definition of consent was not present for the purposes of section 375 in the Indian Penal Code. However, in the case of Rao Harnarain Singh43 which happened as early as 1958, the court laid down as to what was meant by consent. The court in a well-expressed manner specified that consent should be free, and it should be active. The presence of fear, force or fraud would vitiate any consent.44 The court also observed that a mere submission on the part of the women, or the absence of injuries on the person of the women do not indicate consent. The court held that “Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.”45 The Court in this judgement pronounced one of the most progressive judgements of its times where consent has been defined in a positive sense, thereby placing emphasis on the sexual autonomy and liberty of a woman to make decisions and choices.
However, the same trend did not continue, and time and again the decisions of courts in various cases were marred by stereotypes, and other kind of considerations that were wholly irrelevant as far as the law was concerned. One such case was that of
43 Rao Harnarain Singh v The State, (1957) SCC OnLine P&H 112. 44 DUBE, supra note 7 at 81. 45 Rao Harnarain Singh v The State, (1957) SCC OnLine P&H 112. At 567.
46
Mathura which I have discussed earlier46, but another case that needs mention is that of Pratap Misra47 where a pregnant woman was raped by three men and due to this she miscarried after few days. The Session court and High Court convicted the three accused, however the Supreme Court acquitted the accused, by stating that since the victim had suffered no injuries, and because she did not scream during intercourse, therefore it cannot be said that she did not consent.48 Additionally the court observed that if the intercourse would have been forced, miscarriage would have been immediate, unlike in this case where it happened after a few days.49
It is pertinent to note that in order to undo the damage done by the Supreme Court in the case of Mathura; the court in the case of Bharwada Bhoginbhai Hirjibhai50 tried to pronounce a ‘victim-friendly judgment’,51 but instead the court pronounced a verdict where it gave reasons as to why would an Indian woman would not lie, and in doing so the court listed a range of stereotypes to justify as to why should the testimony of an India woman be trusted without corroboration.52 In doing so, the court ended up creating a typical image of a rape victim, and this was later used in various decisions to either credit, or discredit the victim-witness in other cases.53 The court by this judgment made the already existing descriptive stereotypes into prescriptive stereotypes, and this is evident from the fact that the decision in this case has been cited by the Supreme Court 33 times, and by High Court 348 times.54 (This is as May 2015.)
The trend changed a bit post Mathura, and in cases like Gajanand Mehta55 and Vinod Kumar56, the court refused to entertain such stereotypes, and in fact the court also did not agree with the defence of absence of injuries or past sexual conduct of the victim. It is pertinent to note that this shift in approach was a necessary because the absence of injuries on the person of the victim, and her past sexual relations were powerful defences which could often change the fate of the trial, leading to the acquittal of the
46 Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143. 47 Pratap Misra v State of Orrisa, (1977) 3 S.C.C. 41. 48 Id. at 46-47. 49 Id. 50 Bharwada Bhoginbhai Hirjibhai v State of Gujrat, (1983) 3 S.C.C. 217. 51 MRINAL SATISH, DISCRETION DISCRIMINATION AND THE RULE OF LAW, 41, 42-45, (2017). 52 Bharwada Bhoginbhai Hirjibhai v State of Gujrat, (1983) 3 S.C.C. 225-226. 53 SATISH, supra note 51 at 42. 54 Id. at 54. 55 Gajanand Maganlal Mehta v. State of Gujrat, (1985) S.C.C. OnLine Guj 147. 56 Vinod Kumar v State of Madhya Pradesh, (1986) SCC OnLine MP 128.
47 accused.57 This trend of trusting the testimony of the victim who may not fit the stereotypical image of a rape victim can also be seen from other cases such as that of S. Ramakrishna58, Pappu59, and Mango Ram60 etc. It is pertinent to note that focus on consent in the Indian sense got diluted because of the consideration of stereotypes, past sexual relationships etc, and the absence of a definition of consent only furthered this.
The CLAA, 2013 introduced the definition of consent, a definition which may not prescribe affirmative consent standard, but it still describes consent in a positive manner. The High Court of Delhi in the case of Mahmood Farooqui61 had the chance of testing this new definition of positively defined consent, which focuses on communication of consent and willingness to engage in a particular sexual act. However, instead of interpreting the definition in a positive manner, the court ended up construing consent in the old fashioned way. The court acquitted the accused, who had been convicted by the session’s court of committing rape on a woman who was a research scholar within the premises of his home. The court acquitted the accused based on the finding that the victim had not been able to communicate her unwillingness (to engage in the sexual act) to the accused.
The court also dwelled into the understanding of consent, and the court took the regressive view, that “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.”62 Instead of looking at the willingness of the complainant to engage in the sexual act, and her affirmative communication towards the same, the court burdened the victim by analysing her non-consent towards the act, and that there was no clear communication of such non-consent.
The court also discussed that with different individuals and the kind of relationship they share, the meaning, and understanding of the term no may vary or change. Apart from this the court also observed that expressing consent may also depend upon ‘gender binary,’ i.e. there is a difference between how a man and a woman may
57 See also Sanju Gope v State (1998) Cr LJ 1984; Milind Ambadas Mhaske v State of Maharashtra, (1998) Cr Lj 1357. 58 S. Ramakrishna v State, (2009) 1 S.C.C. 133. 59 State of Uttar Pradesh v Pappu, A.I.R. 2005 S.C. 1248 60State of Himachal Pradesh v Mango Ram, (2000) 7 S.C.C. 224. 61 Mahmood Farooqui v State (Govt of NCT Of Delhi) (2017) SCC OnLine Del 6378. 62 Id. at 24.
48 express sexual consent. The court agreed with the gender biases that existed in the society when it comes to an act of sex, and held that it is the men who initiate an act of sex, thereby playing the ‘active part’63, and it is the women who are the receptors and are ‘non verbal.’64 In addition to this, one more factor that seems to have influenced the finding of the court is the past sexual relationship that existed between the accused and the victim. This has happened even after the Supreme Court clarifying on consent in a number of cases.65
The court, in this case, erred to a great extent and did damage to the things that had been improved over a period of time. The court also looked into the past sexual relationship of the accused and the complainant, which is against the mandate of the law, and is acceptance of a regressive practice that once existed. The judgment of the court has pushed back all the important developments that had taken place as far as the element of consent is concerned. The court has failed to appreciate the positive definition of consent that had been added after the amendment of 2013 and instead has reinforced the traditional and regressive understanding of the offence of rape. This judgment has created a wrong precedent, a precedent that has limited the understanding of the offence of rape to the traditional norms including that of resistance, and unequal gender dynamics.
The court has out-rightly rejected the affirmative consent standard, and this is evident from the fact that instead of requiring reasons from the accused that led him to believe that the complainant had consented, on the contrary, the court looked into the effectiveness of ‘no’ said by the victim, and there too the court erred by observing that a ‘no’ may not always mean a ‘no’, and may sometimes mean ‘yes’. The court should instead have taken the alternate view, where the court should have looked into the willingness of the victim to engage in the act, and her affirmative communication towards the same.
63 Id. at 26. 64 Id. 65 Idan Singh v State of Rajasthan, (1976) SCC OnLine Raj 83; State of Uttar Pradesh v Chhotey Lal, (2011) 2 SCC 550.
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CHAPTER 6 CONCLUSION
Affirmative Consent Standard marks a shift in the approach towards the offence of rape. It is a shift from the traditional understanding where rape was considered to be a property crime, a crime that was related to the honour and chastity of a woman, a crime that would affect her marriage prospects, and where the victim was on trial more than the accused.
On the contrary the affirmative consent standard provides for ‘yes means yes’ approach, which is way different from the ‘no means no’ approach. The ‘yes means yes’ approach is women centric, because the sexual autonomy of a woman and her liberty to consent is at the focus of this approach. The approach prescribes for a system where the instigator of the sexual act must have obtained the consent of the women before proceeding with the sexual act, such consent being valid for that particular act for which it has been obtained.
The affirmative consent standard helps the law free itself from the shackles of past sexual relationships, the virginity of the woman, the marks of injury, or the degree of resistance offered, and instead allows focusing on one simple parameter, i.e. affirmative consent.
Two essential elements that are at the core of the affirmative consent standard are the willingness to engage in a sexual act, and the communication of the same to the other party. ‘No means No’ approach focused on the negation of consent by the victim, and this created a situation where the onus was on the victim to prove that she had communicated her ‘no’ to the alleged accused. This created lot of issues, and many a times the accused got acquitted because the court failed in appreciating the no, or its communication.
On the other hand affirmative consent standard establishes a regime which does not put the ‘victim’ or her ‘no’ at trial, and instead the focus is on the accused to prove as to how did he infer that the woman was willing to engage in a particular sexual act, and did she consent or did she communicate her willingness towards the same.
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Affirmative Consent Standard is the most appropriate way in which a woman may be recognized as an equal partner in a sexual interaction.1 Just like the other common law countries, Indian courts and adjudication of rape cases has been marred by the presence of the erroneous factors since ages. The understanding that a woman may generally lie, or may make a false accusation of rape, and other extra judicial factors such as the virginity of the victim, her past sexual relations, her promptness in lodging the complaint, her social and economic factors, her marital status have all been pollutants in rape adjudication, which ultimately led to the acquittal of the accused. The absence of a proper definition of consent made these factors more powerful. This created a situation where consent was not looked into by the courts, or even if was looked into, such extra judicial factors overshadowed it. The case of Mathura,2 and Pratap Misra3 reflect the same.
However the image is not all gloomy, because the same courts have also given certain progressive judgments, judgments where the courts have seen the offence of rape as a crime against the bodily integrity and the sexual autonomy of women.4 The major change that has taken place was after the amendment in 2013. The CLAA, 2013, amended Section 375 of the Indian Penal Code to not only broaden the definition of offence of rape, but also provided for the definition of consent.
The definition may not be in tune with affirmative consent standard, but the definition of consent is a positive one. The definition focuses on the unambiguous nature of the communication that takes place, where the woman should convey her willingness to engage in a particular sexual act. This definition of consent eliminates the possibility of extra-judicial factors playing a role in determination of rape, for example the injuries suffered, and the degree of resistance that is offered.
Moreover, the proviso to explanation 2 of section 375 provides that in a situation where the woman does not offer resistance, such non resistance would not be taken as consent. The statute clearly provides that non resistance would not amount to consent. However, to what extent the courts have relied upon this definition is yet to be
1 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L. Rev. 1321, 1322 (2005). 2 Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143. 3 Pratap Misra v State of Orrisa, (1977) 3 S.C.C. 41. 4 Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimensions, 15 Journal of the National Human Rights Commission, 225, 228 (2016).
51 ascertained. The inclusion of this definition is a positive step, a step that furthers the reform in respect to rape law, a step that would make the courts to look into the element of consent and not on the other flawed factors, during trial. After the introduction of this definition the courts should be looking into the communication of her willingness, and consent to engage in a particular sexual act. This definition eliminates the possibility of looking into other factors, or at least it should be like this.
However, the decision of the court in the case of Mahmood Farooqui5 has taken us back to the traditional understanding of the offence or rape, and to the traditional factors that once influenced rape adjudication. It is a regressive judgement, a judgement that shifts from the onus from the accused to the victim, where it is the victim who has to show that she did not consent and that she was able to effectively communicate the same, instead of asking the accused if he had obtained the consent of the victim. This approach should not only be condemned but it should not let destroy the years of reforms that have taken place. The courts should not infer consent from absence of resistance, or from the absence of a ‘no’, instead the courts should infer consent, when such a woman through verbal or non verbal communication expresses affirmatively that she wishes to engage in a particular act of sex, and the communication of the same.
This is where affirmative consent standard (as adopted in college campuses in California) plays a role. The Indian definition is also close to the same because it talks about the communication of the willingness, and moreover such an approach recognizes the sexual autonomy of the woman, her liberty to make choices of her own, and her equal status. Indian Judiciary has a great role to play in the adoption of this approach, an approach that can be adopted and forwarded through the judgments of the court.
The approach that the consent of a woman can only exist when she is willing to engage in a particular act of sex, where she affirmatively confirms the same to the instigator, and when the onus of proving the presence of such consent is on the instigator and not on the victim.
5 Mahmood Farooqui v State (Govt of NCT of Delhi) (2017) SCC OnLine Del 6378.
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