The Consent Debate: Navigating through the Gray Areas in

Rape Discussions

1.Foreword

Consent, in a broad sense, refers to voluntary and informed permission given by a person for a
particular activity or event. It implies that the consenting person has agreed by choice and has
both freedom and capacity to make a conscious decision. In the context of rape cases, Consent
happens when all people engaged in any sexual activity agree to take part by choice. The absence
of free consent to any sexual activity amounts to sexual violence. It is upon the discretion of an
individual to decide whether to be involved in sex or any other kind of sexual activity – for
instance, kissing, cuddling, or performing oral sex, with the liberty to revert their decision at any
time.

But, it doesn’t matter if someone doesn’t have visible injuries or if they didn’t resist or scream,
try to cut and run. “You know what when a man has raped you, you never hear about what he
was wearing ” quoting George Takei, infamous author. Implying it doesn’t matter what they were
wearing or what was the prior interaction. Or if the victim is acquainted with the perpetrator(s).
Or if they have experienced feelings of arousal.

Myths clouding around the concepts of consent and sexual violence can sometimes make victims
and survivors vulnerable as though they are somehow to blame. Statistics demonstrate that one in
five women will become victims of rape or attempted rape in their lives says United Nations
Development Fund for Women 2008. Studies have shown that it’s typical for the victims or
survivors of sexual abuse to have flashbacks of past traumas, and feel as if it is happening to
them in the current moment causing depression, anxiety, stress or fear, making it difficult to
adjust or cope post-trauma.

How Consent looks like: When two individual willingly wants to have intercourse there is
enthusiastic consent between them and both of them share a sense of safety. Verbal clues saying
‘that feels good’ or ‘don’t stop’ checks on enthusiasm. Communicating with the other partner
about comfortableness and respecting someone’s choice. It is required to get their consent. Every.
Single Time.

2.Consent under the Indian Penal Code (IPC)

Consent is a multidimensional concept, encompassing both ethical and legal grounds. Consent is
what differentiates sexual intercourse from rape. Consent in particular has not been defined in
any specific sections of statutes though it is widely articulated. There was a good analysis of
expression of ‘consent’ in the context of section 375 of IPC was firstly discussed Rao Harnarain
Singh Vs. State [AIR 1958 Punjab 123].

Consent must be “unequivocal,” “voluntary,” and “willing,” according to the definition given
under explanation 2 of section 375 IPC, and the will must be “communicated” provided that “a
woman who does not physically resist the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.” Section 375 to 377 IPC deals with sexual
offences and prescribes a punishment too. In the language of section 375 itself, the legislature
has set down seven descriptive circumstances of when rape occurs.

Also, Section 90 of the IPC defines consent disparagingly and provides that consent obtained by
way of force is not consent, and it shall not be given under intimidation.

Once the victim claims the absence of consent, then the criminal defendant must demonstrate
that the sexual act was consensual, not forceful, and he must drive off the statutory presumption
raised against him. Under the Indian Evidence Act of 1872 (Section 114A), there is a
presumption as to the absence of consent in certain prosecutions for rape where sexual
intercourse by the accused is proved and the woman denies giving consent to the sexual act.
Nonetheless, this amendment was only made after massive public outrage and criticisms of the
1978 Supreme Court judgment in the Mathura rape case (Tukaram vs. State of Maharashtra),
where the accused were acquitted because there were no visible marks of resistance and also no
visible injury in the pubic area, only semen stains on the victim’s clothes—implying that she had
consented to the act of sexual intercourse.

3.Consent as a defence
In the Indian legal system, since criminal law attempts to penalize a criminal’s ‘guilty mind,’
Consent plays a vital role in defining legal liability and culpability in criminal law cases.
However, navigating consent in the cases of sexual offences can become comprehensive. Power
dynamics, age factors, intoxication, intimidation, incapacity, developmental disability” and other
factors can complicate determining natural ‘free consent.’

Merely stating that an individual consented to certain actions or conduct is not enough to
establish a defence of consent. Valid consent requires that the individual consenting must have
the legal capacity to provide informed and voluntary consent. By establishing that the act was
consensual, the accused can challenge the claims of non-consent, shifting the burden of proof
onto the prosecution to establish beyond reasonable doubt that consent was absent. A subjective
standard for qualifying consent leads to inequitable results and is unfair to the victim as
evidenced by the Delhi High Court judgement in Mahmood Farooqui v. State of NCT of Delhi
which ruled that a victim’s verbally expressed feeble ‘NO’ can, in some cases, imply her consent.

Four core criteria must be fulfilled to plead consent as a defence in criminal lawsuits are dealt
with in sections 87, 88, 89, and 90 of the IPC:

• The individual must have the capacity to give consent. A person has a decision-making
capacity if they can understand the facts and choices involved, weigh the consequences
and communicate the decision. A person’s capacity may fluctuate from time to time as a
result of illness, unsoundness of mind or intoxication. If such a person consented in his
sober state then it is said to be a valid consent.
• Consent must be freely given. The person must not be coerced, pressurised or intimidated
into giving consent to any act or conduct.
• The consent should be sufficiently specific. There should not be any misconception of
fact. The person who is giving consent, must informed about the risk he is going to
endure.
• The person must be above the age of 12 years unless the contrary appears from the
context then the consent must be given by guardians or the person in charge of them on
their behalf.

4.Rape or No rape
The girth of the situation has stepped down to an unthinkable level that a 6-month-old baby girl
is not even spared by these somnophiliacs. Rape is technically defined as forced penetration(with
any body part or object) including anal, vaginal or oral intercourse. Rape can be categorized in
different ways: by reference to the situation in which it occurs, by the identity or characteristics
of the victim, and by who is committing the rape. The categories described below are not
mutually exclusive: a given rape can fit into multiple categories, for example, being both a prison
rape and a gang rape or both custodial rape and the rape of a child.

• Gang Rape: A gang rape occurs when a group of people participate in the rape of
a single victim.
Mostly two or more violators are involved. Statistics about reports of gang rape
across the world are very vague.
• Incest: Incest is a type of rape dictated by the relationship between the two
parties. When the two parties involved in the sex act are closely related (in other
words, they are family), it is often rape. Examples of incest include parents and
children; uncles and nieces or nephews; aunts and nieces or nephews.
• Marital Rape: Also known as spousal rape, an exception to section 375 of IPC.
This category broadens to using both physical and sexual violence, imposition of
power and control over one another, including obsessive sadistic or torturous
sexual acts without the spouse’s consent.
• Date Rape: Also known as acquaintance rape, which is a non-domestic rape
committed by someone who knows the victim usually in social situations like
people who are dating, co-workers, family friends, schoolmates, someone with
whom you had sex in the past and other acquaintances, provided they were dating.
• Diminished Capacity Rape: This type of rape occurs when one person forces
sexual penetration on another person who cannot consent to the sex act due to
limited physical or intellectual ability or intoxication, mostly by spiking the
drinks.
• Statutory Rape: Rape committed on a person below the age of consent that is 12
years of age is called statutory rape. It is a crime because the minor is considered
to be too young to legally consent to any sexual act.
 • Other Rape: Rape can occur in many other ways as well, including prison rape,
war rape, payback rape, punitive rape, rape by deception, serial rape, custodial
rape, theft rape, ceremonial rape, etc. In India, Rape has been a major focus of
women's rights organizations.

5.Vindictive use of Rape laws

Rape is a taint on society. Sections 375 to 377 of the Indian Penal Code, 1860 deals with the
definition of rape and punishments for this crime too. But for years now, the laws have been
misused and used to ruin many innocent lives. The definition of rape is women-centric so there is
a presumption that men are always at fault which is not true at times. Men are also a victim of
sexual abuse domestic violence and sexual assault, but society takes these issues less seriously
because of the traditional stereotypes on men to be strong, independent, stoical, competitive and
tough.

According to the Indian Procedure Code, rape is a non-bailable offence. The accusations of
sexual assault such as rape or child abuse are very serious and should never be taken lightly. But
everything is about balance. The problem is that far too many people use accusations of sexual
assault for their gain. Just like false dowry charges, false rape charges can be used by a woman
and her family to accuse and silence the other party.

“Laws are like double-edged weapons. If they are made to protect the rights of a person they can
also be misused to throttle the liberty of opponents,” the Delhi court had observed while
acquiring the man of rape charges in a case in 2008.

In today’s workplace, men are vulnerable to sexual harassment as much as women. It is a serious
issue steps should be taken to overcome this. Women who are deliberately making false
accusations to harass men need to be prosecuted and punished, a Delhi court has observed,
saying such matters cause intense misery and humiliation to the accused which continues even
after acquittal in the case.

6.Conclusion
In conclusion, consent is a fundamental concept in the realm of human relationships, particularly
in the context of sexual activity. It involves voluntary and informed permission given by
individuals who have the freedom and capacity to make conscious decisions. Consent is a crucial
aspect of preventing sexual violence, as it ensures that all parties involved in any sexual activity
willingly agree to participate. It is not contingent on external factors like attire, prior interactions,
or acquaintance with the individuals involved. Unfortunately, misconceptions surrounding
consent persist, which can unfairly place blame on victims and survivors of sexual violence. The
statistics on sexual abuse underscore its prevalence and the severe psychological impact it can
have on survivors. True consent is characterized by enthusiastic agreement, verbal
communication, and a mutual sense of safety between individuals engaging in sexual activity. It
is essential to seek and respect consent every single time, as it is the cornerstone of healthy and
respectful relationships.

Article references:

https://www.shethepeople.tv/top-stories/opinion/false-rape-allegations/

https://www.legalserviceindia.com/legal/article-3095-how-women-misuse-their-
rights.html#:~:text=Which%20means%20a%20man%20or,example%20of%20misuse%20of%20
law

https://www.healthyplace.com/abuse/rape/types-of-rape-the-different-forms-of-rape

https://www.wikiwand.com/en/Types_of_rape

https://blog.ipleaders.in/consent-as-a-defence-under-i-p-
c/#:~:text=Conditions%20needed%20to%20plead%20consent%20as%20a%20defence,-
Section%2087%2C%2088&text=Person%20has%20consented%20for%20the,of%20them%20o
n%20their%20behalf

https://rapecrisis.org.uk/