RAPE AND CONSENT: A CONCEPTUAL DISCUSSION

This guest post was written by Kumar Mukul Choudhary and Raj Krishna both students of Chanakya National Law University, Patna. 

INTRODUCTION

The word ‘Rape’ has derived from a Latin wordrapio, which means ‘to seize’. ‘Rape’ or Raptus in its simplest form, signifies ravishment of a woman against her will, or without her consent or with her consent obtained with force, fear or fraud, or the carnal knowledge of a women by force against her will.^[1]Section 375 of the Indian Penal Code of 1860 defines rape as an unlawful sexual intercourse between a man and a woman, without the consent of the women or against her will, under any of the six clauses, mentioned in the provision.With the passage of timethe initial section 375 and punishment for rape has undergone a massive change, vide two major amendments in the year 1983^[2] and 2013^[3] respectively.

The 1983 Amendment widened the ambit of ‘rape’ and provided stiffer punishment, as it stipulated a mandatory minimum punishment of seven years imprisonment, which could be extended to a term of ten years or for life. It also penalized gang rape, custodial rape, and rape of a pregnant woman.^[4] This amendment was done in the aftermath of the Apex court ruling in Tukaram v. State of Maharashtra.^[5] In this case an orphan girl who was brought to the police station for recording of the statement was raped by one of the police officer and was sexually molested by another who was drunk. Though, both the accused were acquitted by the Trial court on the ground of tacit consent of the victim, the Bombay High Court reversed the decision of Trial court on appeal, and held one of the accused guilty for Rape, and another for molestation. The High Court also observed that there is a difference between consent and passive submission, and hence held that mere passive or helpless surrender, induced by threat or fear, cannot be considered as desire and will. The Supreme Court however on appeal reversed the decision of the High Court on the ground that, there was no fear of hurt and death for the deceased and hence she cannot be overawed in police station since her relatives were waiting outside. This judgment was widely criticized all over the nation.

To nullify the effect of this decision extensive amendment were made in I.P.C and Indian Evidence Act. Sec 376A to 376 D were added to I.P.C and, Section 114 A was added to Evidence Act.This abovementioned case signifies the importance of consent in criminal law, and the effect of consent especially in sexual offences.

1. ANALYSIS OF SECTION 375

Section 375 of Indian Penal Code defines rape, and mentions six circumstances when a sexual intercourse can be considered as rape.

Section 375 of Indian Penal Code, reads as follows-

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) —Against her will.

(Secondly) —Without her consent.

(Thirdly) —With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) —With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) —With or without her consent, when she is under sixteen years of age.^[6]

Each clause of the abovementioned section defines situations, when consent of the women is not valid, and the act amounts to ‘rape’.

First clause talks about sexual intercourse ‘against her will’, and it is different from without consent. Although both concept seems to be synonymous but, in cases of “against the will” the element of active opposition is absent,^[7] while the element of active opposition will be present when something is done without the consent of the person.^[8]

The second clause of section 375 states that if a man had sexual intercourse without the consent of women, then it amounts to ‘rape’. Consent is defined as an act of reason accompanied by deliberation.^[9] Consent supposes three things, physical power, mental power and serious use of them.^[10] Consent for the purpose of section 375 requires, voluntary participation not only after the exercise of intelligence, based on the knowledge of the significance and moral quality of the act, but also after having fully exercised his choice between resistance and assent.^[11] A mere act of helpless, resignation, in the face of inventible compulsion, non-resistance and passive giving in, cannot be deemed to be consent.^[12] Mere absence of physical resistance to the act of penetration cannot be taken as her consent for sexual act.^[13] Consent of a women, must be unequivocal and voluntary for participating in any sexual act.

Section 114 A of Indian Evidence Act sets a presumption that if a women states that she has not consented for a sexual act, then the court has to presume consent was not given by her, and it holds good until rebutted.^[14]

Third clause of section 375 states that consent obtained by putting the prosecutrix or any other person, (in who’s life she has interest) into the fear of death or hurt, then such consent obtained by the act of fear will not amount to a valid consent and the said act amounts to ‘Rape’.Earlier this clause only includes threat to life or hurt to the victim only, but after 1983 amendment, threat to persons into who’s life victim has interest were also included. Apex court while deciding State of Maharashtra v. Prakash,^[15] rightly held that, where a police constable and a businessman had sexual intercourse with rustic women by beating her husband and threatening to put him on police remand, comes within the ambit and scope of this clause.

The fourth clause of section 375 deals with a situation wherein a woman consented for a sexual intercourse with a person, believing him (accused) to be her legitimate husband. Consent given under such circumstances will not amount as valid consent, and the accused will be liable for the offence of Rape.

Fifth clause of the Section which was added by the 1983 Amendment deals with the consent given by the women of unsound mind, or in state of intoxication. It states that consent given by a woman of unsound mind or in intoxication state (provided that the intoxicating substance was administered by accused directly or indirectly)is incapable of understanding the consequence of the act. Therefore the consent cannot be considered as valid consent. In TulsidasKanolkar v. State of Goa^[16] the Apex court ruled that the consent given by a mentally challenged girl cannot be considered as a valid consent as she is incapable of understanding the consequence of her actions. Similarly, sexual intercourse under the influence of alcohol cannot be considered as consensual intercourse with consent.^[17]

Sixth clause of section 375 states that sexual intercourse with a girl below 18 years of age, with or without her consent amounts to ‘Rape’,^[18] as the consent of minor is no consent at all. Once it is proved that the girl is below 18 years of age, then her consent becomes irrelevant and it amounts to ‘Rape’.^[19]

III. CONCLUSION

Consent of victim is the most important part of rape law. The essential element which distinguishes rape from normal sexual intercourse is the consent of person.  Hence the aim of law making as well as law enforcing bodies must be that the victim should not face much difficulty in proving that her consent was valid or not. The current provision of the section 375 of Indian Penal Code is quite comprehensive in defining consent but, the courts must also interpret law in a proper manner. If the interpretations of the courts are not proper then it may result into grave injustice, depression, stress and mental agony to the victim as observed in Mathura rape case. The law after the 2013 Amendment is in sync with the societal needs, thus no more reforms are required in the current law. However it’s the proper enforcement of laws by the law enforcing authorities which would help the present cause.

[1]Bhupinder Sharma vs State of Himachal Pradesh, AIR 2003 SC 4684.

[2]Criminal Law (Amendment) Act.1983.No. 43.Act of Parliament.1983. (India).

[3]Criminal Law (Amendment) Act.2013.No. 13.Act of Parliament.2013. (India).

[4]KI Vibhute, PSA Pillai’s Criminal Law at 713 (12th  ed. 2014).

[5]Tukaram v. State of Maharashtra AIR 1975 SC 185.

[6]The Indian Penal Code, 1860, Section 375.

[7]KI Vibhute, PSA Pillai’s Criminal Law at 718 (12th  ed. 2014).

[8]State of Uttar Pradesh v. Chhoteylal, AIR 2011 SC 697.

[9]KainiRanjan v. State of Kerala(2013) 9 SCC 113

[10]Udayvs State of Karnataka(2003) 4 SCC 46

[11]Re Anthony, AIR 1960 MAD 308.

[12]KI Vibhute, PSA Pillai’s Criminal Law at 719 (12th  ed. 2014).

[13]Indian Penal Code, Section 375, explanation 2.

[14]Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191

[15]State of Maharashtra v. Prakash ,1992CrLJ 1924 SC.

[16]TulsidasKanolkar v. State of Goa ,AIR 2004 SC 978

[17]Bhari v. State of Rajasthan,(1952) Raj LW 255.

[18]BishnuDayal v. State of Bihar, AIR 1981 SC 39.

[19]Iqbal v. State of Kerala, AIR 2008 SC 288.