August 1, 2021

Sexual Consent Under Indian Rape Laws

Abstract: This article is an attempt to shed light on the loopholes in the understanding of sexual consent under Indian Rape law. The first part of the article will lay down the current legal perspective on sexual consent and the second part will attempt to analyse the loopholes in the understanding of consent in law while focusing on issues of consent by prostitutes, marital rape, and stealthing.

The Legal Perspective of Sexual Consent

Section 375 of the Indian Penal Code, 1860 defines rape as sexual intercourse without the will or consent of a woman, and other instances where the legality of her consent can be bought into question. It is interesting to note that while the section mentions ‘consent’ several times, it is not defined anywhere in the statute and has only found meaning through judicial interpretation. In 1978 a controversial judgement caused mayhem across the country when Tukaram v. State of Maharashtra was decided. This case became the bedrock of the current law as it stands today, after several amendments.

In this case the Supreme court held that rape did not occur as no evidence supporting a lack of consent such as injury marks on a woman’s body were found, further, such an act was assumed to be a ‘peaceful affair’ and claims of resistance by the girl are not reliable (Tuka Ram And Anr vs the State of Maharashtra, 1978). The courts have since made strides to compensate for this flawed judgement, but the law nevertheless manifests within it, a gender bias. This gender bias is so deeply embedded in the Indian society that it has framed societal standards of ‘normalcy’ of how a woman is supposed to be. Social conditioning garnered by religion and culture have further helped the process.

The Indian legal system has failed to consider the power structure between genders in a male-dominated society (MacKinnon 175). Women are taught to be inherently submissive, respectable, and moral by the society. While such sanctions are hardly applicable to men. Some women are coerced into submitting themselves to the whims of men out of fear of violence. An aftermath of the criticism received by the Tukaram case can be seen in the amendments to section 375, and the subsequent addition of sections 376A, 376B, 376C, and 376D in the Indian Penal code 1860, as well as, Section 114 (A) of the Indian Evidence Act 1872. As a result, a woman’s testimony is now considered conclusive proof of an absent consent and the burden of proof was now placed on the accused. (Indian Evidence Act 1872).

Loopholes in the Legal Perspective of Sexual Consent

Even though rape laws have improved, many loopholes still exist. The root of these loopholes exists in the gendered notion of sexual consent. Catherine A. MacKinnon has explained this concept, she says that the legal perspective of sexual consent is a male’s perspective through which rape appears as a harm against ‘female monogamy’ and not violence against a woman’s dignity (MacKinnon 172). Such a perspective accompanies a very pre-historic notion of ownership, wherein women consist of a man’s property, and rape becomes a crime against such a man, and not the woman who is raped.

This understanding of consent robs the real meaning of sexual consent as perceived from the eyes of a woman. Another problem with the legal understanding of sexual consent is that it assumes a habitual woman who has had sexual intercourse before cannot be raped subsequently. This assumption arises because from a male understanding of female sexuality “once a woman has had sex, she has nothing to lose” (MacKinnon 173). Female sexuality subsequently takes the form of a property that can be ‘stolen, sold, bought, bartered, or exchanged by others’ (MacKinnon 172). This understanding becomes profound when courts are faced with rape cases filed by sex-workers.

In a case revolving a sex worker who was gang-raped, the supreme court set the accused free, on the reasoning that the woman was a sex worker and her behaviour was not what was expected of a ‘normal’ rape victim; the court did not even delve into whether or not she had consented to the act (Sen). The court assumed that she cannot consent since she is a sex worker! This is often seen in rape cases; a woman is presented to be ‘promiscuous’ and her sexual history and autonomy are used as tools against her.

The right of a prostitute to say ‘no’ was not realized until 2018 when the Supreme Court reversed the judgment and held that “even if allegations of the accused that a woman is of immoral character are taken to be correct, it does not give any right to the accused persons to commit rape on her against her consent” (Even sex-workers have right to refuse). Another similar issue where the lines of ‘consent’ often get blurred is that of ‘stealthing’.

Stealthing can be described as a practise wherein, during consensual intercourse, a condom is covertly and furtively removed by one partner without the consent of the other partner, so that the initial consent stands disregarded (Brennan 2017). In this practise, the lines of ‘consent’ become blurred because even if the woman may have earlier consented to having protected intercourse, the condition of being ‘protected’ later changes, and the act becomes non-consensual. This practise is a violation to a woman’s agency and bodily integrity, and also leaves her exposed to several health problems, like sexually transmitted infections and diseases. In addition, she also risks facing an unplanned pregnancy.

As has been reported by Vishwanathan, the act of stealthing is not restricted to the west, but is quite common in India as well, according to her many Indian women approach their doctors worried stealthing by their boyfriends and husbands has not resulted in an unplanned pregnancy or an infection (Vishwanathan 2017). Section 375 of the Indian Penal Code very clearly only covers a pre-penetration perception of consent. This consent does not appear to be conditional either, which may be revoked at a later stage. This proves to be a problematic space for a woman who experiences something like stealthing.

The only scope for a remedy in such a case would be if act-specific consent is interpreted into section 375 secondly. Wherein, consent is specifically given for protected intercourse, and any alternations would automatically be covered under the ambit of ‘rape’ under section 375 of the Indian Penal Code. However, until such a case is presented before the courts, this remains an ambiguous suggestion. It is interesting to note that while no specific legislations or case laws exist in India on the subject, stealthing is a recognized crime in several other parts of the world.

In 2017, the Swiss Federal supreme court became the first in the world to pronounce that stealthing was a form of ‘rape’ after a man proceeded to remove his condom during an otherwise consensual act with his tinder date (Rakshit 2020). Also, in Germany, Australia, and Canada cases have been reported where the accused was punished for sexual assault and rape for indulging in the practise of ‘stealthing’ (Rakshit 2020). In the United States, a bill has been introduced which is specifically aimed against it. India is lacking far behind in introducing a law which focuses on this practise. Currently, neither the courts nor the law commission have taken cognizance of the issue.

Another common issue with consent in rape cases is that of an absent consent in a marriage. This has proven to be a controversial ongoing debate among the legal fraternity for a very long time, unfortunately, to no avail. In India, the consent of married women above the age of 18 is always assumed by their husbands, while for those under the age of 16, consent is irrelevant, i.e., even if they consent for intercourse, it will be considered rape. Even in the rare instance where the law protects women, it can be inferred as an attempt of controlling the sexuality of a woman by telling her when she can consent and when she cannot. In Independent Thought Vs Union Of India, the Supreme Court of India held that “Exception 2 to Section 375 of the IPC to now be meaningfully read as: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape” (2018).

This judgment makes the whole idea of ‘consent’ a futile exercise, since a married woman above the age of eighteen can be legally raped by her husband. According to MacKinnon, this situation is the result of a general assumption that rapes are only committed by perfect strangers, and that “the exemption for rape in marriage is consistent with the assumption underlying most adjudications of forcible rape: to the extent the parties relate, it was not really rape, it was personal.” (MacKinnon 176). This is concurrent with the general assumption that courts hold, however, according to official statistics, in ninety-five percent of rape cases women are raped by someone they know (Karp 2). Thus, instead of telling who can consent and who cannot, the law should uniformly apply similar standards to all rape cases, irrespective of who files it, against whom, and their sexual history.

Works Cited

  • Brennan J. “Stealth breeding: bareback without consent.” Psychology & Sexuality. 8th ed., 2017. 318-330. Doi: 10.1080/19419899.2017.1393451.
  • Connell, R. “Gender regimes and the Gender Order.” Gender and Power: Society, the Person and Sexual Politics. 1st ed., Stanford University Press, 1987. Google Books, https://books.google.co.in/books?id=DLyuBgAAQBAJ&printsec=frontcover#v=onepage&q&f=false. Accessed 27 June 2020
  • “Even sex-workers have right to refuse: Supreme Court”. Economic Times. 2018. https://economictimes.indiatimes.com/news/politics-and-nation/even-sex-workers-have-right-to-refusesupremecourt/articleshow/66466109.cms?utm_source=contentofinterest&utm_-medium=text&utm_campaign=cppst. Accessed 26 June 2020
  • Indian Evidence Act, 1872
  • Indian Penal Code, 1865
  • Independent Thought Vs Union of India, 2018
  • Karp, Aaron, et al. Unheard and Uncounted: Violence against Women in India. Small Arms Survey, 2015, www.jstor.org/stable/resrep10686. Accessed 27 June 2020
  • MacKinnon, Catherine A. “Rape: On Coercion and Consent,” Toward a Feminist Theory of the State, Harvard University Press, 1989, pp. 171–183
  • Mahmood Farooqui v State Government of Delhi 2017
  • Rakshit Devrupa “Stealthing: The Reprehensible Practise of Tossing Consent out of the window” The Wire. 2020. https://livewire.thewire.in/gender-and-sexuality/stealthing-consent-rape-condoms/amp/. Accessed 28 June 2020
  • Sen, Jahnavi. “Supreme Court’s Expectations of ‘Usual’ Behaviour After Rape are Misguided, Say Lawyers”. The Wire. 2016 https://thewire.in/gender/supreme-court-rape-sex-work. Accessed 27 June 2020
  • Tuka Ram And Anr vs the State of Maharashtra, 1978
  • Vishwanathan, Janaki. “Not just west, sexual act of stealthing common in India too: Experts” Mid-day.com. 2017. https://www.mid-day.com/articles/stealthed-sexual-trend-rips-condom-off-mid-sex-indian-men-women-health-news/18230193. Accessed 29 June 2020

Author Details: Vanshika Aggarwal and Aparna Sthapak (O.P. Jindal Global University)

You might be also interested to read:

  • The Law on Trial: Justice in the Age of Information
  • Implications of Judicial Activism on The Indian Democracy
  • Trial by Social Media – A New Threat to The Administration of Justice
  • Starting up in the Fashion Industry- A Legal Checklist
  • Applicability of Labour laws in India in relation with IT industry
  • Role of Arbitration in Resolving Domain Name Disputes: Position in India
  • The Ethics and Morality of Legal Profession
  • Labour Law reforms in India – An attempt at Labour Exploitation?

Instagram

Leave a Reply