The present research thoroughly examines the idea of consent in relation to Indian rape laws, considering both the legislative framework and external variables that have an impact on how consent is interpreted. The study investigates cases when criminal law is abused to enforce socially and personally acceptable standards, addressing concerns about the growth in false charges of rape. The study, of particular note, focuses on situations in which outside influences give rise to biases upon consent, raising issues with the integrity of the court system. The report provides suggestions for rape legislation change in response to these issues. It emphasises how critical it is to change social perceptions of sexual autonomy through education, increased knowledge, and nuanced approaches to consent.
Keywords
Rape, Consent, Women, Rape Laws, Judicial Interpretations, IPC
Introduction
First and foremost, it is important to understand that India’s rape law solely acknowledges men as the offenders and women as the victims. Section 375 of the Indian Penal Code, 1860 defines rape. Explanation 2 defines consent as a woman’s unequivocal, voluntary, verbal, or nonverbal communication to engage in a sexual act. Nonetheless, the prosecution still has the burden of establishing beyond a reasonable doubt that the rape occurred without the complainant’s consent. Section 114A of the Indian Evidence Act, 1872 provides an exemption to this rule. If the perpetrator is in a position of trust or authority and the sexual assault is established, the court will proceed under the premise that the victim did not consent. Section 376 of the IPC defines the relationships in which it is assumed that the accused has authority over the complainant.
In order to meet the affirmative requirement of consent, sexual conduct must be stated voluntarily, reciprocally, and explicitly. Although the 2013 amendment act introduced an explicit definition of consent, there have been some problems in establishing consent in Indian rape cases. In assessing consent, judges frequently consider a plethora of irrelevant circumstances, which essentially equates to expectations of “ideal victim behaviour.” These elements discourage other possible victims from coming forward with a report of the crime in the future by causing victim blaming and re-traumatization through drawn-out trials and dehumanising cross-examinations. It is imperative to define a consent standard that eliminates any legal ambiguity and to require the accused to take proactive measures to obtain consent, particularly in cases of rape by acquaintances.
Indian rape laws and consent
Before the Criminal Legislation Amendment Act of 2013, there was no clear definition of consent in connection to rape laws in the Indian Penal Code. Section 90 of the IPC states that permission granted by a child, an insane person, or someone under the influence of alcohol is generally regarded as invalid. Other reasons for consent to be given include fear of harm or a misinterpretation of the facts.
Due to this lack of a clear definition of consent, many judicial interpretations and judgements were given that caused an uproar of the public. One of such a case was the case of Tukaram & Anr v. State of Maharashtra, popularly known as the Mathura Rape Case. A nationwide outcry was triggered by the ruling and views of the Sessions court, as well as the judgement issued by the country’s highest court. The case was very contentious not just because of the lower court’s and the supreme court’s comments, but also because it raised questions about “passive consent,” addressed the idea of custodial rape, and addressed the role of a woman’s “chastity or virginity” in rape cases. This case sparked widespread indignation over sexual assault and other crimes against women around the nation.
The Sessions Court in its judgement determined that the accused were not guilty. The Sessions Court’s opinions and views were extremely unsettling. The court declared that the young girl’s consent was voluntary since she was “habituated to sexual intercourse.” The Sessions Court held that although there had been sexual contact, it could not have been rape. The medical reports, which claimed that the girl had not been subjected to “force,” were even cited by the court. The court described the young girl as “a shocking liar” and declared that her testimony was “riddled with falsehood and improbabilities.” The High Court however disagreed with the judgement and acquitted the accused only for the judgement to be reversed by the Apex Court.
Along with the Sessions Court’s sexist handling of the Mathura Rape Case, the Indian Supreme Court also made remarks along these lines. The Supreme Court erred when it linked the victim’s lack of resistance with consent, even though it acknowledged that there could be a number of reasons for the victim’s lack of resistance. This instance turned into a famous instance of “victim’s character assassination.” The lower court and the Supreme Court’s blatant insensitivity in focusing on the victim’s personality or specific details of the crime—such as the “absence of semen in private parts,” “no cry for help,” “no marks of injury,” etc.—was evident. There was a national outcry following the highly disturbing and disappointing ruling in this case, and numerous letters were written to the Chief Justice of India at the time.
The Criminal Amendment Act of 2013 was enacted by the Indian government in response to the horrific Delhi gang rape and murder case. The committee was tasked with proposing changes to sexual assault laws that would allow for a speedier trial and more severe punishment for those found guilty of sexual assault against women. The concept of rape legislation, procedural laws, and evidentiary acts were all drastically altered by the act. The committee suggested defining consent as “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” and also cited the legal positions found in English and Canadian laws. A progressive standard of consent was thus attempted to be established, requiring a man to obtain the woman’s clear consent before engaging in sexual activity.
The Delhi High Court tested the legality of this updated definition of consent in the 2017 case Mahmood Farooqui v. State. The author Farooqui was accused in this case of coercing an American academic, a well-known acquaintance, into having oral sex. The victim admitted in her testimony that she had kissed the accused before, but since he was married, she had never intended to go farther. The accused’s home is where the alleged event took place. She refused his invitation to engage in oral sex. The accused then physically and forcibly touched her. To put an end to her torment fast, the victim pretended to have an orgasm and did not object out of fear for her own safety. The victim, traumatised and in disbelief, filed a case in 3 months.
The Delhi High Court reversed the sessions court’s verdict of rape conviction against the defendants. The court referred to the condition that the prosecution was unable to provide conclusive evidence to support the second criterion of section 90, which requires the accused to have knowledge of the victim’s fear of injury or factual misperception at the time of consent. The victim’s lack of resistance and their past history of warm relations, the court said, may have granted implicit consent on the accused’s behalf. The court put it this way: “A feeble no may mean a yes.”
The victim’s unequivocal rejection of the accused’s prior desire for intercourse was not taken into consideration by the court at any point. It is crucial to keep in mind that not everyone should be prepared to put up with constant badgering, and this needs to be made clear to the judiciary. Regrettably, the court established a precedent that requires victims—especially if there has been a prior personal relationship between them—to sufficiently notify the accused of their lack of consent and to maintain contact until the accused is fully aware of it. This unfairly discriminates against women in relationships because the court effectively shifted the permission standard from one that is proactive to one that is implied.
Furthermore, the court overlooked the fact that the complainant’s overt or covert behaviours indicate intentional and equal participation in the sexual activity, which is implied by free and voluntary consent. In the Farooqui case, this was conspicuously absent; in fact, evidence contradicting this, such as the explicit prior rejection of sexual intercourse, was disregarded. In spite of this, the court decided that the victim’s “feeble” refusal did not invalidate the defendant’s reasonable belief in her consent.
From these cases it becomes obvious that the interpretation of consent is based both on the definitions as given by law and also by certain extraneous factors.
Extraneous Factors
The Farooqui and Mathura cases serve as prime illustrations of how extraneous considerations, like past sexual experiences or attachment, might impact the court’s assessment of the complainant’s trustworthiness and her willingness to consent to the conduct. When an accused person is found guilty based only on their testimony, courts would usually first assess the complainant’s credibility in the absence of independent supporting evidence before convicting them. This is not legal credibility; rather, it is moral credibility. The idea behind challenging the complainant’s moral credibility is to imply that it would be unjust to penalise the accused based only on the testimony of a morally reprehensible individual, particularly in the lack of independent confirmation of their story. The accused is therefore given the benefit of the doubt in light of this moral deficiency, which may or may not imply consent to the deed.
The Supreme Court of India’s 1983 ruling in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat established the significance of external factors in determining consent. In this instance, the court resolved the legal precedent regarding rape convictions based only on the victim’s evidence. The court ruled that it is difficult to imagine a woman lying about the crime of rape in Indian society because of the importance attributed to a woman’s chastity. Furthermore, because rapes take place in private settings, it is unreasonable to anticipate eyewitnesses in contrast to incidents of physical attack. Therefore, unless the victim has a basic disability and the probability element discredits her testimony, there is no need to corroborate her testimony in a rape case. For rape victims, the Bharwada ruling was a good step forward because it allowed convictions to be based only on their testimony. Nevertheless, the court did not provide any direction regarding the type of defect or likelihood factor that would make a rape victim’s testimony untrustworthy in the absence of corroboration. Due to a conspicuous gap in the decision, courts can now use patriarchal ideas that are prevalent in Indian society to assess the veracity of complainants’ testimony regarding consent. This opens the door for courts to determine consent by considering their own moral opinions and presumptions regarding gender conduct. These are also used to ascertain whether the victim’s actions can be connected in any manner to the accused’s belief in consent. These extraneous factors could include the complainant’s previous or present behaviour or sexual history. By relying on these kinds of traditional rules of evidence, which are inherently misleading, a miscarriage of justice is frequently the result.
- Resistance – It is a widely held misconception that the typical victim will always struggle against any attempt to compromise their physical integrity. Continuing this idea, Indian courts have frequently considered the significance of victims’ forceful opposition to rape attempts. Offering resistance is said to have the potential to cause bodily harm to victims that could be used as medical evidence, or at the at least, to appeal to the rapist’s conscience. For instance, the trial court in Dilip v. State of Madhya Pradesh considered the absence of adamant resistance or yelling during the act as proof of consent. In the recent case of Raja v State of Karnataka, the court found that the victim’s actions during the ordeal were consistent with a subservient and willing individual rather than an agonised and frightened victim, leading to the accused’s acquittal. Therefore, when it comes to the issue of consent, the court may take into consideration the attitude of the “ideal victim,” who resists rape fiercely.
- The victim’s sexual lifestyle – India is a conservative country with a largely sex-negative society. Owing to a predominantly patriarchal society, a woman’s sexual expression has a detrimental effect on her credibility when pursuing a rape case. Before 2003, there was a provision in the Indian Evidence Act that allowed a rape victim’s veracity to be called into question by demonstrating her overall immoral character. This part led to women being subjected to dehumanising cross-examination, which was tantamount to an attack on their mental health. But even after the section was eliminated in 2003 as a result of an amendment, courts have utilised a woman’s behaviour prior to and following the act as a gauge of her credibility in a number of cases.
The Delhi High Court suggested every woman has a responsibility to uphold her virtues, preserve her chastity, and preserve her dignity in a case involving anticipatory bail from arrest in connection with a rape complaint. Such an attitude is indicative of court officers outdated, backward, and callous thinking. In a similar vein, even after the police had filed a charge sheet against the accused, the court determined that a 17-year-old was indecent and had a history of inappropriate behaviour when deciding an appeal for bail in a rape case.
Still, it appears that not much has changed. In the Farooqui case, the judge mentioned that although though the accused was married, the victim had previously given him kisses and hugs as a factor in deciding consent. The prosecutrix wrote a letter to him stating that she loved him and wished him well, but she ignored the rest of the letter, which reaffirmed that she did not consent to the offence. The court also alluded to this correspondence. Even in the Mathura Rape case, the previous sexual behaviour of the victim was called into highlight by the Sessions and Apex Court and was stated as to be one of the deciding factors upon the judgement given. These observations inevitably lead to the conclusion that a woman’s sexual lifestyle still affects her moral standing in rape situations.
- Injuries – Courts have stated time and time again as a matter of principle that the lack of physical harm in a rape allegation should not raise questions about the victim’s veracity or imply that the victim gave their consent. The lack of injuries in situations of rape against minors should not raise questions about the veracity of the victim’s testimony. Judges, however, frequently consider the existence of injuries as a contra-indicatory marker to uphold the accused’s guilt. Thus, even while the prosecution’s case is not hopeless in the event that there are no injuries, their existence does help reinforce it.
- Post Assault Behaviour – The media has a big impact on how judicial officers perceive the “ideal rape victim,” caricatured in their minds. This notion originates from the perception—which courts have acknowledged in a number of rulings—that rape is a punishment more terrible than death. The court has noted that “a rapist degrades the very soul of the helpless female; a murderer destroys the physical body of his victim.” According to the court’s opinion, an Indian woman’s most valuable asset is her chastity, which is taken away by rape. This kind of thinking undermines the credibility of victims whose actions after the assault does not match their mental script.
The court in Kamalanantha v State of Tamil Nadu observed that the victim had wept on several occasions, suggesting that her behaviour lends credence to the rape claim. In a different instance, the court granted bail to the accused of rape on the basis of the prosecutrix’s actions following the assault. The victim’s claim that she felt exhausted and went to sleep after the rape was deemed unworthy of an Indian woman by the court undermines her credibility. In addition, the court participated in victim shaming by making comments about her lifestyle, such as staying late at work and having drinks with her offender, as though she should have been punished for being extroverted.
During Swami Chinmayanand’s bail hearing, the court noted that it was ridiculous that the victim of alleged sexual harassment did not tell any of her family members about her trauma for the nine to ten months that it occurred, implying that her reliability is dubious. Delays in revealing the offence were interpreted as a sign of premeditation or as reason to question the accuracy of the claims. Such views are wholly at odds with past rulings set by the Indian Supreme Court, which clearly declare that a victim’s delay in disclosing the offence will not be construed as an afterthought. The above-mentioned chain of rulings makes it abundantly evident that a victim’s actions following an assault nonetheless influence whether or not consent is granted in rape cases.
- Traditionalistic and modern views of women – The victim’s social status and profile are other factors that judicial officers consider while making decisions. Doubting the testimony of a modern, educated, urban women who freely expresses their uniqueness and freedom is a pattern of discrimination. The court held that when the victim’s evidence is unimpaired, there is no need for rape corroboration. The court went on to discuss the disparities between Indian and Western women’s perspectives and social standing in order to show that Indian women had less motivation than Western women to fabricate a rape assault. This choice appears to have contributed to doubts about the veracity of the American scholar’s statement in the Farooqui case.
When considering a bail request for the crime of rape under false pretences of marriage, the court in Rohit Chauhan v. State noted that the complainant was a sophisticated woman who liked to drink with men—a fact she did not dispute in court. She was not so weak, therefore, that she would not protest to being taken advantage of over an extended length of time. The court did not clarify how having a contemporary perspective and being more susceptible to deception are related. It is only possible to assume that such reasoning is a stereotype in the absence of a sufficiently solid factual basis.
Similarly, in a case of rape by deceit, the Bombay High Court stated that it would be hard to believe that a well-educated, 25-year-old woman could be tricked into giving her consent for sexual relations. Therefore, the empowered working woman of today begs for discrimination from the legal system, particularly where agreement for a sexual relationship has been secured by deception.
It is clear from the analysis of legal precedents and extraneous circumstances above that they do have a big impact on the consent determination issue. The majority of these situations involve victim blaming and shaming, which lessens the accused’s responsibility. Their main aim is to exacerbate the victim’s unpleasant experience, and they have very little bearing on the violating behaviour in question.
The problem of false rape cases
Legal professionals are concerned about the increasing number of bogus rape charges that judicial authorities in India are having to deal with. The problem of individuals abusing the criminal law to enforce morality on both an individual and societal level is recognised as a noteworthy contributing factor. Ethnographic studies show that the criminal justice system occasionally manipulates the rape statute for undesired ends. To regulate the sexuality of young females, family members might, for example, file rape and kidnapping reports against those responsible for consensual elopements.
Police officers might even assist complainants to make up tales of deceitful rape in order to shield themselves from criticism for having sex before marriage. Cases like the one of Ajit Naharsingh Dasana, where the Bombay High Court released an accused person on bail after the complainant acknowledged fabricating allegations against him in an attempt to keep her adulterous affair afloat, serve to illustrate the intricacies involved. These cases highlight the need for a comprehensive understanding of the difficulties Indian judicial personnel confront when handling false charges of rape.
Similar to this, the Allahabad and Delhi High courts observed in the cases of Mukesh Bansal and Arshad Ahmed that accusations of rape, sodomy, and sexual assault are frequently made in cases of matrimonial disputes. After the parties achieve a settlement, these cases are eventually brought before the courts for quashing. The application of rape law to regulate adult women’s sexuality, settle personal conflicts, and force a marriage settlement diverts attention from the horrible crime and those who commit it. The hardship of actual rape victims is undermined, as are the resources that are supposed to be used for them—such as invaluable police and court’s time and attention. Despite the rarity of these incidents, they can have a disproportionate impact on judicial officers’ perceptions of the trustworthiness of complainants.
Suggestions
Developing suitable judicial rules that consider extraneous variables when establishing the components of consent in sexual offences is unquestionably necessary. For instance, depending only on the victim’s or the accused’s interpretation of post-assault behaviour as a sign of credibility may result in incorrect conclusions because different people behave differently to the same circumstances, which may not always reflect their mental state.
Based on section 90 of the Indian Penal Code and their previous amorous history, the court in Mahmood Farooqui regarded consent as a negative presumption norm. In these situations, the requirement for an affirmative criterion of consent appears pertinent, particularly in light of feminist analysis of the power dynamics between men and women in relationships. Many nations have created an affirmative standard to address this dilemma, requiring the accused to first get the victim’s consent before engaging in sexual activity.
But there is also the fact that use of affirmative consent may not have the intended effect of giving victims of sexual assault the justice they deserve as the accused is not legally required to obtain consent in order to obtain affirmative consent.
The accused should not be permitted to invoke the defence of belief in consent if they do not actively seek consent. It is reasonable to anticipate that the defence will provide evidence of the actions taken by the accused to get consent, and the judiciary must receive sufficient training to apply rape shield legislation in order to create a trial process that is sympathetic to victims. Furthermore, courts should read the complainant’s free and voluntary assent as meaning an overt act that constitutes active involvement in the sexual action.
Previous intercourse is frequently seen by courts as consent proof. It is imperative that judicial officers comprehend that the act being complained of may not be connected to prior consent for sexual contact. Furthermore, evidence of a love relationship does not absolve a person of the need to formally request consent. Lastly, to lessen the occurrence of assumed consent, active consent communication ought to be promoted. The general public and young adults should be encouraged to engage in healthy sexual practices in order to lower the widespread incidence of sexual violence in society. According to numerous research, sexual consent education programmes need to show appropriate respect for the variety of sexual encounters that people have depending on their personal preferences.
Conclusion
In relation to the literature referred above, it is clear that there are many problems with evaluating consent, including the excessive control of sexuality, the persistence of rape myths, and prejudices held by juries, judges, and other stakeholders. India still has ways to go when it comes to inclusivity and unambiguity in its rape laws and certain changes and suggestions made have become a step in the right direction. But the fact remains that the many components of the criminal justice system each have convictions of their own founded on social conditioning means that criminal law reform is still mostly unsuccessful. Appropriate sexuality education and judicial sensitization training should help contribute to the establishment of acceptable and accommodating attitudes towards the Indian public and sexual minorities.
Name of Author – Vyom Sukhadia
Name of College of Author – NMIMS KPMSOL