CONSENT IN RAPE CASE: OBJECTIFIED CONSENT IN A SUBJECTIVE EXPERIENCE
Authored By- M P Rannika
Freedom Cannot Be Achieved Unless Women Have Been Emancipated From All Kinds Of Oppression
- Nelson Mandela
This paper analyses how the rape law’s conception of consent is an objective standard for the subjective experience of the rape survivors, consent is currently conceptualized in the Indian legal system, India comes under the category of countries being one of the most unsafe places in the world. While we extensively talk about how women are deprived of their human rights in public, in the workplace, or at home, we often neglect how the worst manifestation of violence. When a heinous crime such as rape has been committed another challenge, a women faces is a stereotype as to how a victim should be and eventually it affects the adjudication, this paper will focus on the generic point of view of rape and extend the arguments on stereotypes in rape adjudication and critical analysis of point of view of consent in the eye of Justice Verma committee.
Consent in classical liberal theory refers to the expression of autonomy and free will by competent and rational individuals who are free from coercion and pressure Rape trials in India continue to subject female victims to a notion of “shame and honour” the conviction rate in rape cases are low. The difference between sex and rape is based on consent according to the criminal justice system but the definition of consent that is prevalent in Indian criminal justice has a negative connotation attached. The principle of consent is the notion of sexual autonomy, it reflects the freedom choice of liberty, though its nature might be disputed when it comes to women, the main problem lies in defining consent as “no means no” then what about silence and nonverbal denial? According to the national crime records bureau’s report “crime in India, 2019” about 70% of women in India are victims of domestic violence marital rape or spousal rape is an act of sexual intercourse with one’s spouse without the consent of the spouse either with the force or the passive submission. Its 2022 and India remains one of the 36 countries where it is not a crime to rape women- if they are legally married The origin of the definition of rape can be traced back to the sixteenth century when the chief justice of England, sir Mathew hale stated that “a Husband cannot be guilty of rape committed by himself upon his lawful wife”this established the common law definition of rape which was defined as “the unlawful sexual intercourse committed by a man with a woman who is not his wife, through force and against her will rape against women was not treated as a crime against women, but instead a violation of the man’s property. This was continued for a century after the enactment of the IPC the stand was changed but the definition of rape was restricted to penetration only and other forms were not identified there was a need felt for stringed rape laws in India after a horrifying incident of brutal gang rape of a 23rd-year-old medical student on a moving bus in Delhi which sparked nationwide protests in 2012, the legislatures constituted a committee called the Verma committee to recommend amendments that could make changes in the criminal law to provide faster trials and harsher punishments for the accused committing sexual assault against women. The committee has also pointed out that the IPC distinguishes between rape which is committed within the four walls of marriage and outside it. Nonconsensual sexual intercourse is an offence under IPC but there is an exception to the crime of rape between a husband and wife The committee recommended changes in criminal laws to make the punishment strung and commented on how women should not be regarded as a deathless shame, it observed the failure of criminal justice system functioning the committee recommended that this exception be removed so that marital rape is included within the ambit of rape under 375 of IPC, they stated that the relationship between the accused and the victim should not serve as an excuse while dealing or discussing consent to sexual activity.
This paper will deal with the very introduction to the concept of rape then proceed on to myths in the rape cases and This paper will analyze the concept of rape and analyze the concept of consent in rape cases by drawing an analogy to the recommendations given in the justice Verma committee report
In the case of Rameshwar v state of Haryana, the judges had opinioned in this case that there needs to be warning in the minds of judges about the necessity of corroboration while accepting the testimony of the prosecutrix, In Tukaram v State of Maharashtra this case the court had interpreted that there was consent because she had a past sexual history and on the ground that there were no injuries and resistance and held it was not rape. A raja v state of Karnataka this case is an e.g. of stereotype as to how a victim should react after rape, the court had held that a raped would not go back to the crime scene rather than the police station is unnatural conduct hence they disbelieved her. In the case of Rafiq v state of UP the court here opined that people who are raped feel deathless shame, In the case of Pratap Mishra v state of Orissa, the court disbelieved her because according to the court she is a grown-up lady, and she cannot be raped single handily and utmost resistance is not shown. In this set of cases, Aparna Bhat v state of Madhya Pradesh is a progressive judgement which referred to judicial stereotyping and stated judges have an important responsibility and stereotypes should not cause an effect in adjudication.
Limitations of the study
This research paper is limited introducing to the concept of rape and regarding consent in the general perspective in the first half of the paper and limited to analyzing the concept of consent according to the recommendations of the justice Verma committee drawing an analogy to the stereotypes which effected in rape sentencing. Limited resources have been used in this research paper.
The word rape is derived from the Latin word “rapio” which means “to seize”. According to this rape is a forcible seizure or ravishment of a woman without her consent in history rape was considered a violation of the women’s body and honour without her consent did not exist in ancient times it was rather an intricate aspect of the property. Ancient Roman law gives evidence that there were direct ties between law, property, and person If a woman was abducted and sexually molested even violently crime was not against her body, but merely theft of a woman against the consent of her guardian or those who have legal power over her. Harm under ancient Babylonian and Mosaic laws capture of females by force was perfectly acceptable outside the table or city but such an occurrence within the social order led to chaos a civilized way of acquiring a wife was by payment of money to the father. And bride price was codified at 50 pieces of silver rape was thus perceived by the father as “the Theft of virginity and embezzlement of his daughter’s fair price in the market. In Islamic criminal jurisprudence, the majority of Muslim scholars believe that there is no punishment for a woman forced to have sex According to a Sunni hadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. In some laws the woman might marry the rapist instead of his receiving the legal penalty. This was especially prevalent in-laws where the crime of rape did not include, as a necessary part, that it be against the woman's will, thus dividing the crime in the current meaning of rape, and a means for a couple to force their families to permit marriage.
With the progress in civilization the concept of rape has undergone changes today, today the offence is concerned with the sexual violation of women. Section 375 and 376 of the Indian Penal code 1860 deal with the offence of rape, the former defines the offence and the latter is a punitive section. Rape is said to be committed when a man has sexual intercourse with a woman not being his wife, against her will and without her consent or with the fear of injury or death. Sexual intercourse of a man with his wife is not rape and the matter of consent is immaterial in that case
Childhood and adulthood victims of rape are more likely to attempt or commit suicide. The experience of being raped can lead to suicidal behaviour as early as adolescence. In a study of raped school girls, 6% reported having attempted suicide. Rape victims feel embarrassed to talk about what had happened to them. A study of adolescents found prior sexual abuse to be a eading factor predicting several health risk behaviours, including suicidal thoughts and attempts.
Rape and other forms of sexual assault on a child can result in both short-term and long-term harm, including psychopathology in later life. Psychological, emotional, physical, and social effects include depression, posttraumatic stress disorder, anxiety, eating disorders, poor self-esteem, dissociative, and anxiety disorders general psychological distress and disorders such as somatization, neurosis, chronic pain, sexualized behaviour, school/learning problems and behaviour problems including substance abuse, destructive behaviour, criminality, and suicide.
The relevant sections of the IPC that define consent as the consent of the rape which seem to be victim-friendly definitions of rape proven to be inadequate to the Indian context the definition of consent in section 90 of the IPC defines consent generally and negatively, while sec 375 is a positive section defining the specific offence of rape, both the sections are to be read together in the cases of rape. Section 90 declares that: consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of the fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
2.1 Rape Myths
A rape myth is defined as a prejudicial, or stereotype or a false belief about the rape of the victims or the rapists, which might lead to victim shaming, Blaming, in turn, leads to bias in the rape trial one of the major myths is about how women should react when raped and also about the sexual history the indication of scars and bruises on the woman's body to determine consent.
2.2 Perspectives in Rape Trials
Stereotyping Rape victims
Research conducted by the Human Rights Watch on the barriers to justice for a rape victim, covered issues of bias in the adjudication with stereotypes still prevalent. It can be rooted in the provisions such as section 280 of the code of criminal procedure that enable a judge to take a note of the demeanour of the victim
In the case of Kamalanathha v state of Tamil Nadu supreme court agree with the observations made by the judge because while recalling the forcible act of the rape the victim was teary and her pain and shocked conscience was felt through her eyes.
Raja v state of Karnataka while passing a judgement of an acquittal for the appellants for the alleged gang rape of a woman her conduct as a rape victim was unusual because she was at the crime scene after the commission of the crime, she went to the enquiry who were those men, instead of running away hence court stated that conduct of the victim doesn’t state she was raped.
Rakesh B v state of Karnataka the court stated that it is unbecoming of Indian women to sleep after being raped.
Pratap Mishra v state of Orissathe court disbelieved the testimony of a woman alleging gang rape who was living as a concubine with a married man and held if the story of the prosecutrix is true there should have been visible signs.
Bharwada v state of Gujarat the court listed the characteristics of a rape victim whose testimony can be believed without corroborative evidence. Madan Kakkad v. Naval Dubeythe Court observed that the victim lost her virginity during rape at the tender age of eight years and now, at nineteen years, the victim remains unmarried, living with the agony of the traumatic experience and the deathless shame suffered by her.
State of Uttar Pradesh v Pappu In this case, the court took a strong stand by holding that the victim had sexual history is not something that needs to be determined in a rape trial. Aparna Bhat v state of Madhya Pradesh the part of the bail order concerned with the tying a Rakhi was challenged in the supreme court quashed the bail and stated there needs to be a gender sensitization curriculum in law schools and also in judges training and such bail conditions should not be kept. Even if we have a progressive judgement in reality it is been followed in rarest instances.
3.1 Analysis of Justice Verma committee report on Rape
The justice Verma committee consisting of justice J.S Verma(retd) Justice Leila Seth (retd) and Gopal Subramaniam was constituted by the government of India to “investigate the possible amendments of the criminal law to provide a faster and enhanced punishment for the criminal committing a sexual offence against women. It was in response to the peaceful protests by the people following the brutal gang rape of a young girl in Delhi on December 16, 2012. It published a 631 pages report on January 23, 2013, titled “Report of the committee on Amendments to the criminal law”. The committee has pointed out the failure of good governance, it mentioned the recommendations about amendments in rape laws made by various committees. The committee grounded its report in the state’s obligation to secure the fundamental rights of the citizen, which include the right of every person to defend individual autonomy. The Committee felt that if women are denied autonomy, even by actors other than State, the duty of the State does not diminish only on that ground. The failure to secure the rights of women results in the State denying the right to equality and dignity that women are guaranteed under the Constitution. The Committee's report, including the new offences that have been created and modifications that have been suggested to the existing ones, need to be viewed within this Constitutional framework.
3.2 Overall findings of justice Verma committee report
The committee made recommendations on a wide range of issues dealing with all kinds of sexual crimes. The Committee recommended marital rape exception should be removed and stated as follows, "the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity". It also made recommendations to the sexual harassment at workplace( Prevention, prohibition and redressal) bill 2012 that they need to set up an employment tribunal and criticized the existing mechanism of the internal complaints committees stating that it has defeated the purpose of bill
With respect to the rape, the committee was of the view that the punishment of such an offence needs to be graded The committee stated that "There are instances where the victim/survivor is still in a position from which she can, with some support from society, overcome the trauma and lead a normal life. In other words, we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death." They also considered the view of the working group on Human rights which had suggested that “the murder rate has declined consistently in India over the last 20 years despite the slowdown in the execution of death sentences since 1980." Therefore the committee was of the view that the introduction of capital punishment for the offence of rape may not have a deterrent effect. The committee also considered the views of scholars, and leaders of women’s organisations who strongly submitted that "the seeking of the death penalty would be a regressive step in the field of sentencing and reformation"However, they enhanced the punishment to mean the remainder of life.
The Committee further recommended the insertion of certain offences such as Voyeurism, Stalking and Intentional Touching in the Penal code. It also reviewed the practice of the "two-finger test" during the medical examination of the victim and suggested the scrapping of the test by stating that "the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/ conclusions such as 'habituated to sexual intercourse should not be made and this is forbidden by law".
The committee emphasized the importance of gender equality and also drafted a separate Bill of Rights for women stating "Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of violence, exploitation, cruel, inhuman or degrading punishment and treatment targeting women are prohibited". In consonance with the report given by the Justice Verma Committee the Criminal Law Amendment Act 2013 came into force on the 3rd of February, 2013, which introduced comprehensive changes in the Indian Penal Code,1860, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.
3.3 Analysis of objectified consent in Rape laws
Consent in classical liberal theory refers to the expression of the autonomy and the free will of the competent and rational individual who is free from coercion and pressure
3.3 (a) Justice Verma committee observation on consent in rape laws
The report analyzed that to charge a man for rape it is necessary to establish that the “sexual intercourse” was against her will or without her consent if consent is obtained under clauses firstly to sixthly the same would also amount to rape.
Against will and without consent
It was observed in the case of Dileep Singh v State of Bihar court observed that the act done against her will and without consent can be used interchangeably but IPC categorizes these two heads to be comprehensive as possible. The difference between these terms was brought in the case of State of U P v Chottey Lal “the expression against her will would ordinarily mean that the intercourse was done by the man with women despite her resistance and opposition. On the other hand, “without her consent” would comprehend an act of reason accompanied by deliberation.
In the case of the state of HP v, Mango Ram observed that submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent requires voluntary participation, in this case, it was observed that the consent should be ascertained on careful study of relevant circumstances, committee pointed out that in the United Nations handbook definition of rape and sexual assault has evolved from requiring of use of force to lack of positive consent.
The United Nations recommend that accused should prove that steps were taken to ascertain whether the complainant was the consenting approach taken by the CEDAW committee in its view in the case of vertido v the Philippines that this would shift the burden to the defense and would minimize secondary victimization of the complainant in proceedings even in the Canadian law accused should demonstrate that he took a reasonable step to ascertain consent.
The footing of the evidence of the victim
The evidence of the victim of rape is on the same footing as the evidence of the injured witness her testimony is alone sufficient for conviction this footing is due to the background of Tukaram v State of Maharashtra court had disbelieved the statement of the victim of the rape on the ground of circumstantial evidence. Also, the case of Bharvada gohinbhai Hirjibhai v state of Gujarat described the women from western society and set of criteria of how women are and described western women as “gold diggers” who would levy false rape cases for money and would not be in case of Indian women and kept an exception for urban women.
Recommendations/observations of the committee
Recommendations and Conclusion
Need for Affirmative Consent
In 2017, in Mahmood Farooqui v. State, the Delhi High Court stated that a feeble “no” does not negate the consent, holding that “a feeble no may mean a yes.” This appalling judgement clearly indicates that rape adjudication in India is missing the need for legal recognition of an affirmative standard of consent. The current interpretation of consent is “No means No” affirmative consent is known as “Yes means yes” which means the consent should be actively communicated, in the united states, California state law has adopted affirmative consent and defines it as voluntary agreement to engage in sexual activity. It provides that affirmative consent can be ongoing and can be withdrawn anytime, this law doesn’t include lack of protest or resistance or silence as consent, nor the past sexual relationship is an indicator of consent. Women in India are still living in a deeply patriarchal society where even the courts are into patriarchal beliefs and stereotypes law needs to change to adopt the affirmative consent
There is a need to move from a “No means No” approach to an affirmative approach with respect to consent in rape cases, this can solve the problem of passive submission since active consent needs to be communicated to the person for any sexual act, but it is not possible until the stereotype is existed, in a rape adjudication there can be various other factors which would involve various pre-set notion, there is a need for change in the conception of how consent is viewed, the concept or the interpretation of consent is drawn from a very negative connotation when rape is defined there need to be analysis of consent in a subjective nature and not just objectifying it based on the marks or resistance or according to the definition. Rape is a horrifying subjective experience which differs from victim to victim, hence judge when analyzing the part of consent should get rid of their pre-set notions or stereotypes when dealing with sensitive cases such as offences against the body. Over the years the offence of rape has been an issue which is dealt with by the government only as a result of public outrage after new and more barbarous incidents take place. Because of this our system still fails to provide the victims with a safe and protective environment. Even though there have been
progressive reforms in the laws, there are some debated issues such as marital rape, gender neutrality in rape laws etc., as reported by the Justice Verma Committee, which need to be taken into account with immediate effect. Several cases have brought to attention the ambiguity and inconsistency in the judgments given by the courts. The judgments such as the Farooqui case destroy the efforts of years of reforms and takes us thirty-eight years back to the Mathura case. This reflects the deep-embedded patriarchy that exists in our society. The effects of the colonial mindset can still be seen in today's judgments and the status of women in society remains the same.
“I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s brains are in their genitals”
- Sohaila Abdulal
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