January 15, 2021

Giving meaning to a Woman’s ‘Consent’: The need for an Affirmative Standard

When Catherine Mackinnon states that “Sometimes it seems as though women and men live in different cultures” (1989) in the context of rape, which she denies has anything to do with biology but is largely a part of the social construction of genders, it begins to make sense. The meaning of rape varies from a man to a woman, and understandably so, as MacKinnon has famously said “Compare victims’ reports of rape with women’s reports of sex. They look a lot alike” (Mackinnon 1989); the man does it, and the woman takes it. Due to this unending patriarchy, the experience of the ‘object’ is conveniently given a pass. This feeds the socially acceptable conceptions of gender- the woman is passive and submissive, and the man is aggressive and dominant. On a brief reading of Mackinnon, one begins to realise that a woman who is the object of this patriarchal crime only has the recourse of ‘consent’ available against it. When seen from her position in this socially constructed world, it is not much of a weapon, especially when men are still relentlessly perpetuating the subjugation of women.

The law which can be perceived to be the inherent voice of the pervasive culture, falls under the male domain and thus, finds ways to see the “intercourse in rape” (Mackinnon 1989). The object of this paper is to infiltrate the rigid jurisprudence and infuse it with what feminists like Catherine Mackinnon have been reiterating- a crime like rape cannot be solved with objective standards of the legal system because objectivity is a garb for the male perspective. Only ‘man’ and ‘woman’ are part of the discussion here, as the definition of rape in Indian Law is binary-centric. This paper also supports an Affirmative Standard of Consent for Sex, which might help in shifting the blame from the victim to the perpetrator- the way it should be, yet unfortunately is not.

Traditionally rape is understood as something that only a man can do to a woman who is not his wife (Primorac). Thus, from the onset categorizing women and girls as either being ‘rapable’ or ‘not rapable’-effectively putting virgins in the former category and wives, prostitutes in the latter category (MacKinnon 1989). This categorization conveniently bars a lot of the women from getting any relief from the violation and shifts the blame on her being, or her actions; one, with respect to her position in society since wives and prostitutes have no right to say no to sex (generally, all women who are acquainted with men and have a sexual history cannot shout rape) and two, non-consent should be accompanied with complete “physical incapacitation because it is believed that ordinarily a woman would resist because she should value her chastity more than life itself” (Dhonchak). This view stands because women carry the burden of their family’s reputation and their male partner’s masculinity. She is supposed to be conscious of the invasion of her sexuality by strange men, otherwise it would be snatched away from her family who’s seen to be its possessor (Freedman).

“The sadomasochistic definition of sex: intercourse with force or coercion can be or become consensual” (Mackinnon, 1989) which makes putting pressure on the woman and a certain amount of unwillingness demonstrated by her, usual preliminaries to sexual intercourse (Primorac). This paves the way for a continued skewed outlook on sex itself. This was reflected in the High Court decision of Mahmood Farooqi v State where the victim’s ‘no’ was taken as a ‘feeble no’ and was said not to negate consent because “instances of woman behaviour are not unknown that a feeble no may mean a yes.” (Dhonchak). Mackinnon believes that women in the current system are incapable of becoming active participants as well as enjoying sexual intercourse due to the maintenance of such stereotypical belief systems (Jackson). Though her contention is extreme, women who are consistently seen as having no real stance in their own sexuality might be conditioned to know sex only in the way the men know it.

Even though today, these traditional beliefs are being somewhat attacked and deconstructed by the presence of feminist thought, they continue to stay alive in the sentiments and stereotypes associated with rape. There have been rape cases which have led to protests, progressive judgements, and a change in the law itself through various amendments. However, it always somehow leaves much to be desired because women continue to be raped after the stricter penalisations. This might be perhaps because women’s sexual agency, which ironically is assumed to be very much present through her power to consent, does not exist outside its scope in today’s Indian culture. Furthermore, when women are raped, they start to measure their experience of violation with the standards of the procedural law and whether they will be able to stand testimony to the crime and will be believable (Jackson). Sometimes this also makes them question their own legitimate feelings of violation, and they might be forced to ignore them. Due to the existence of such laws, this thought process hinders justice to women causing further psychological trauma and an impulse to not complain about her ordeal (Jackson).

Rape in India is often understood as it is laid down in the Indian Penal Code (IPC) u/s.375, which breaks down its elements in 3 main categories which are (1) against her will, (2) without her consent, and (3) penetration by the man (Indian Penal Code). The major flaw in this meaning is the definition of rape which is limited to penetration- a male-centric view of violating a woman. When one considers what women classify as rape, the definition would be more expansive (Mackinnon 1989). There is a need for an overhaul of the definition of rape – keeping a law made two centuries ago by privileged white men who viewed women as a piece of property to be owned by men – is not justified, even with all the broken pieces of amendments that are attached to its language. Moreover, the definitions of ‘consent’ laid down in s.375 and s.90 of the IPC have lacunae which can be used against the women themselves by manipulation or misinterpretation, suiting to whether they are used for defence or prosecution (Dhonchak). The Judge plays a part by contributing to the setting of precedents, demonstrating their own views on women’s sexuality by which they either perpetuate or sometimes curb the prevailing patriarchal system.

The interpretive role of the Judiciary is appreciated, however not when it is becoming a hindrance to progress itself. As much as there is a need to make cohesive laws without any loopholes which can be used to the detriment of the victims, there is a need for the jurisprudence to embrace feminist thought. Catherine Mackinnon says:

Politically, I call it rape whenever a woman has sex and feels violated. You might think that’s too broad. I’m not talking about sending all you men to jail for that. I’m talking about attempting to change the nature of the relations between men and women by having women ask ourselves, ‘Did I feel violated?’ To me, part of the culture of sexual inequality that makes women not report rape is that the definition of rape is not based on our sense of our violation. (1987)

Rape should be considered rape not just because of a physical violation of a woman’s body and causing individual injury to it. It should also consider her mental faculties which give meaning to her experience. There is no way a court can know if the woman was willing to be a part of the sex act and the existing patriarchy only allows for a distinction between acquiescence and refusal (Mackinnon 1989), which is not adequate. Although the mental state of the victim cannot and should not be completely relied upon because of its uncertainty and potential for abuse, owing to the inequality which is embedded in this society, subjective experience of the women should be given a legitimate space and the stereotypes associated with women’s sexuality must be given a rest.

This view could be considered a bit precarious, due to its lack of a procedure. Therefore, to suit the needs of today’s legal system as well as creating a middle ground for the women to have a legitimate claim corroborating to their experience, the system of an Affirmative Standard of Consent should be adopted against a ‘no means no’ test (Dhonchak). It is a system where the man is “mandated to seek consent at each point of the sexual encounter to ensure by words or actions, an express agreement prior to engagement in sexual contact, thereby increasing the sexual responsibility of men” (Dhonchak). This will not only shift the burden of proof on the perpetrator of the crime but also give meaning to ‘consent’ of women, making her an active participant in the act rather than just a passive receiver. The courts would, with this standard in place, have an objective yet responsible procedure to measure a woman’s claim.

Works Cited

1. Dhonchak, Anupriya. “Standard of Consent in Rape Law in India: Towards an Affirmative Standard.” Berkeley Journal of Gender, Law & Justice, vol. 34, no. 1, 10 Sept. 2019, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3451475.

2. Freedman, Estelle B. “The Narrowing Meaning of Rape.” Freedman, Estelle B. Redefining Rape. Harvard University Press, 2013. 12-32.

3. “Indian Penal Code.” Statute. 1860.

4. Jackson, Emily. “Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal.” Journal of Law and Society, vol. 19, no. 2, 1992, pp. 195–213. JSTOR, www.jstor.org/stable/1410220. Accessed 10 June 2020.

5. Jacquet, Catherine O. “Rape Is a Political Crime against Women: An Emerging Feminist Anal􏰀sis of Rape.” The Injustices of Rape. University of North Carolina Press, n.d. 75-108.

6. MacKinnon, Catharine A. Feminism Unmodified Discourses on Life and Law. Harvard Univ. Pr., 1987.

7. MacKinnon, Catherine A. “Sexuality, Pornography, and Method: ‘Pleasure under Patriarchy.” Ethics, vol. 99, no. 2, 1989, pp. 314–346. JSTOR, www.jstor.org/stable/2381437.

8. MacKinnon, Catharine A. Toward a Feminist Theory of the State. Harvard Univ. Press, 1989.

9. Primorac, Igor. “Radical Feminism on Rape.” The Hebrew University, Jerusalem (1998).

10. Ro, Christine. Why most rape victims never acknowledge what happened. BBC, 6 November 2018. Article.

Author Details: Harshita Calla and Pakhi Duttaroy ( O.P. Jindal Global University)

You might be also interested to read:

Leave a Reply