In a welcome judgment, the Kerala HC has held that it order to constitute “ consent “ within the meaning of Section 375 of the Indian Penal Code, the sexual activity must be welcome. Hence a surrender to the intercourse would not constitute consent. The author here explains the reasoning behind this judgment and takes the view that this will help correct the imbalance of power between the rapist and the victim.
In a significant judgment delivered last week, the Kerala High Court made a strikingly remarkable shift from the traditional standard of understanding “consent” to an advanced parameter of “welcomeness” in determining the standard that sexual intercourse is required to meet so as to not breach women’s rights consistent with gender equality.
In this case,the accused was charged for rape of a minor aged 14 years belonging to a scheduled caste. The accused argued in court that the act was consensual as the victim used to visit the house of the accused as and when desired by the accused and she had never resisted having sex with him.
The High Court dismissed his appeal making some seminal observations on defining consent and sexual assault.
Reimagining Consent through Welcomeness
Consent has long been the central concept around which the laws of rape have been constructed. The standard of active welcomeness to sexual intercourse is a more advanced standard in understanding consenting and mens rea.
When consent is explicit, it is easy to understand the intention element i.e mens rea of the offence. However, when consent is not explicit, then the law fails to capture every aspect of the wrongs perpetuated by the accused in committing the crime and thus garner mens rea accordingly.The present legislation tells us something about what consent is. But they don’t tell us what consent actually is.
For instance, Section 90 of IPC says that “consent is NOT consent if it is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given as a result of such fear or misconception. These seem like simple rules, but in fact they set the bar too low.
“The determination is largely left to the judges’ discretion and leads to miscarriage of justice when only gendered-stereotypical implications like woman’s appearance, prior sexual history, or relationship to the man are applied. “
Sexual experience is far more nuanced than these rules imply.It does not address the objective parameters that must be taken into account when determining ‘Consent by Conduct’. The determination is largely left to the judges’ discretion and leads to miscarriage of justice when only gendered-stereotypical implications like woman’s appearance, prior sexual history, or relationship to the man are applied.
The Kerala High Court noted this predicament and widened the scope of ‘Consent’ by observing that, “The consent in order to relieve an act like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.”
This observation marks a critical advancement in law as it provides a ‘positive’ definition and elucidates what consent actually is. Having recognized that ‘No’ always means No, it recognizes the possibility that ‘yes’ does not always mean yes. If the complainant says ‘yes’ without choosing to, or where she lacks freedom or capacity, the definition suggests, that ‘yes’ will not vitiate a conviction of rape.
The court, while addressing the social reality of gender inequality, said: “In a country like ours committed to gender equality, only those sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.” With this, it has effectively introduced an advanced guideline, which is Welcomeness, for determining what behaviour constitutes sexual harassment. Though it hasn’t underscored what constitutes as “welcome” and what doesn’t, the concept is hardly new.
The conceptualization of welcomeness, as reported in the judgment, can be traced back to Meritor Savings Bank v. Mechelle Vinson, wherein the US Supreme Court unanimously recognized rape as a violation of Title VII of Civil Rights Act of 1964. The court, for the first time, made sexual harassment an illegal form of discrimination. It held that welcomeness, and not voluntariness, shall be the standard for sex that is not violative of women’s rights consistent with gender equality.
“It held that welcomeness, and not voluntariness, shall be the standard for sex that is not violative of women’s rights consistent with gender equality.”
In the course of time, Welcomeness in US Courts has developed through the EEOC Guidelines on Discrimination Because of Sex, and the US Supreme Court has time and again relied upon them. As per the guidelines,sexual advance is unwelcome whenthe submission or dismissal of such behaviour by the person can impact employment related decisions, or when such conduct can possibly and unreasonably interfere with the individual’s work performance, or engenders an intimidating or hostile working environment.
Shift in Indian Jurisprudence with Welcomeness
This new approach by Indian Courts in consent and welcomeness is significant for two reasons. Firstly, it helps to determine sexual harassment in the light of ‘the record as a whole’ and ‘the totality of circumstances’. A woman might consent to have sexual intercourse, not because she wants to but rather to keep the peace in a relationship where she has been subjected to psychological or emotional mistreatment. Thus, it takes into account gender inequality, institutional subordination and the imbalance of power.
“A woman might consent to have sexual intercourse, not because she wants to but rather to keep the peace in a relationship where she has been subjected to psychological or emotional mistreatment. “
Secondly, a consent standard simply presupposes that men initiate sexual advances that women either accept or reject. A welcomeness standard advocates centrality of ‘choice, mutuality, and desire’. It puts an extra layer of oversight by the courts ensuring that sex was not compelled by inequality and that sex was wanted—affirmatively and openly sought—despite the inequality of power structure between the parties.
The High Court’s verdict incorporates a novel parameter of welcomeness to identify ‘quiescence, non- resistance or passive submission of women’ due to hierarchical subordination is particularly noteworthy. This can be seen as a landmark judgment in observing women’s rights. The Court at the end of the judgment rightly observes a quote from “Trauma and Recovery” that,“When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defence shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness…..”
(Aman Garg is a student at Gujarat National Law University. He can be reached at [email protected]. Views expressed are personal.)