The Role Of Consent In The Offence Of Rape

Introduction 
 

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” - Justice Arjit Pasayat

It is often said that a woman who is raped undergoes two crisis- the rape and the subsequent trial. However good the law may be, rape is a difficult crime to prove. There are too many steps that must be taken by the police to ensure that there is enough evidence available and in most cases the prosecution is unable to gather enough evidence and the accused is set free. The fundamental issue in the offence of rape is consent . Its presence or absence makes sexual intercourse lawful or unlawful. ‘Consent’ matters because to locate consent with respect to sexual intercourse is to locate the normative boundary between criminal rape and non-criminal sex.

Rape is a crime of violence, a denial of sexual freedom, and a privacy violation. Therefore, rape law should protect a woman’s sexual integrity and autonomy against unwanted intercourse. By threatening to punish men who have sex with women without their consent, the law promises women that they have the authority to determine for themselves the conditions under which they will engage in heterosexual intercourse. Section 375, Indian Penal Code, 1860 embodies the six circumstances wherein sexual intercourse amounts to rape and consent has been defined in Section 90 of the Indian Penal Code, 1860. These two sections read together form the framework of consent in rape.

In this paper, we attempt to analyse the present position of law regarding consent in rape and identify some loopholes present and thereby suggested changes wherever necessary.

I. Analysis of Section 375, Indian Penal Code, 1860

Section 375 lists out six circumstances under which if a man has sexual intercourse with a woman, it would amount to rape.

Firstly reads as “Against her will”: Though the phrases “Against her will” and “without her consent” appear synonymous, every act done against the will of a woman is without her consent but the vice versa is not true. The element of active opposition of the person will not be present when something is done against the will of the person. Thus sexual intercourse with a woman who is asleep amounts to rape. The crime is regarded as complete when the man penetrates the woman while she is asleep, and the fact that she submits or even consents on awakening does not deprive the act of its criminal character.

Secondly reads “without her consent”: For the purpose of this clause, the definition of ‘consent’ needs to be imported from Section 90, IPC. All the conditions mentioned in Section 90 are applicable to Section 375 except the minimum age of consent which has been raised to 16 years from 12 years (given in the sixth clause of Section 375).

The other clauses, thirdly, fourthly, fifthly, are in a way, covered by the second clause. They are a mere reiteration of the conditions given in Section 90 itself.

Thirdly reads “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.”- Here, ‘any person in whom she is interested’ should not be only confined to her relatives or acquaintances but as suggested by the Law Commission, should be revised to include ‘anyone else present at the place’.

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.”- At common law, it is immaterial whether the penetrator is impersonating a husband, a cohabite or a lover. There is no reason to distinguish between consent obtained by impersonating a husband and consent obtained by impersonating another man. Defendant procured consent to intercourse by subjecting her to a feigned marriage ceremony. It was held to be rape when she had sexual intercourse with him. In these cases, the consent isconsensus quoad hanc personam which means that the woman consents to have sex with only a particular person and there is a mistake as to the identity to the person. Thus, the fourth clause includes only one, very specific situation of misconception of fact, which would anyway be covered under Clause 375(2) along with Section 90.

Another of these circumstances listed as ‘fifthly’ deals with the role of intoxication, unsoundness of mind, stupefying or unwholesome substance with respect to obtaining of consent of the woman for sexual intercourse.

With respect to ‘unsoundness of mind’ the position of law is clear. Unsoundness of mind vitiates consent because of the lack of capacity of the woman in such a state to give consent due to the inability to understand the consequences and nature of the consent being given by her. This is same as the principle underlying the defence of ‘an unsound mind’ given under Section 84, IPC. However, the burden of proof is on the woman alleging rape to prove unsoundness of mind (except in circumstances falling under Section 376(2) by virtue of S.114-A of the Evidence Act) as the law presumes every person of the age of discretion to be sane unless contrary is proved.

With respect to ‘intoxication’, it is not clear whether voluntary intoxication of the woman falls under this category. This is because if the principle underlying ‘the defence of intoxication’ (which doesn’t recognise voluntary drunkenness as an excuse for commission of crime) is imported, it would mean that voluntary drunkenness will not vitiate consent as contemplated by Section 375, IPC. Such an interpretation would most definitely be biased against women, especially victims of ‘acquaintance rapes’ or ‘date rapes’ (these are situations wherein rape is committed not by a stranger, but with a person known to the girl, for instance office colleagues. It is natural for women to drink with such individuals. Thus, if the interpretation is accepted accused in all such cases will never get convicted) which has been discussed later in this paper.

Position in US & UK regarding voluntary intoxication

The majority of states in US assign the risk of rape to the woman when she is voluntarily intoxicated because they hold that non-consensual sexual intercourse with a voluntarily intoxicated woman does not constitute rape as she is responsible for remaining sober during sexual encounters. In UK also, ‘drunken consent is still consent’. However, realising the biasness against women, such rape laws are set to be changed.

Position in India

In most of the judicial decisions in which the meaning of the expression ‘consent’ under the Indian Penal Code was discussed, reference was made to the passages occurring in Stroud’s Judicial Dictionary, Jowitt’s Dictionary on English Law, Words & Phrases-Permanent Edition and other legal dictionaries. Stroud defines consent as “an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side”. Thus, reason along with deliberation is necessary before assenting to the act of sexual intercourse. In many cases of intoxication, even when it is voluntary, such a deliberation is not possible. Hence such cases of voluntary intoxication need to be brought within the purview of this clause.

With regard to ‘involuntary intoxication’ of victim by person other than the accused, the requirement of reason along with deliberation may be non-existent and the victim cannot be held responsible for that. Especially in such a situation the accused must perform his duty of the making sure that the consent obtained from the victim is free from any influence and he honestly believes it to be free from any sort of influence. Therefore, the clause should be interpreted to include not only involuntary intoxication by the accused, but by any other person and also, voluntary intoxication of the victim provided that by such intoxication the woman would be unable tounderstand the nature and consequences of such consent.

With respect to obtaining of ‘consent by administration of stupefying and unwholesome substance’, the position of law needs elaboration. Criminal statutes are to be interpreted strictly. The strict interpretation of this part of the clause would be that only those cases of sexual intercourse between a man and a woman will amount to ‘rape’ if the consent is obtained under influence of certain stupefying and unwholesome substance that had been administered by the accused personally or through another man. Thus, the requirement under this part of the clause is that the ‘influencing’ substance should have been necessarily administered by the accused. Such an interpretation would protect the accused in the following cases:

1. A, the victim voluntarily consumes drugs at a friend’s party. Another person B, at the party, seeing her in such a condition asks her for sex, which she gives her assent to and they have sexual intercourse.
2. A, the victim, had a glass of a soft-drink that contained certain drugs, which she wasn’t aware about. This had been mixed in her drinks by C. As a result of the drugs, she started feeling dizzy. B finding her in such a condition asks her for sex, which she assents to and they have sexual intercourse.

In both these situations, it is highly likely that the consent had been given consent by A without understanding the nature and consequences of such an assent. This however, has to be inferred from the facts. Certain facts like- A taking B to her sister’s empty flat- can help conclude the fact that she did understand the consequences of her consent. In such situations, obviously, A can’t accuse B of raping her because it was consensual sexual intercourse. However, if facts don’t show the ‘real’ consent of the victim, then the accused should be held liable for having committed ‘rape’ because in both the above-stated situations the accused has mens rea similar to an accused who categorically falls under Clause 5 of Section 375, IPC. In both the situations enumerated above, the accused would have known that the victim was under the influence of the drugs. Taking advantage of the situation he asked her for sex, knowing fully that A would not have given consent had she not been in the present situation. In that case, the mens rea of A would be same as that of an accused who wilfully administers or gets administered the drug to induce her to give consent. Hence, by not giving a strict interpretation to clause 5 but by giving it such an interpretation, A is liable to be punished under Section 375(5), IPC, which is in the interest of justice. However, a man who has sexual intercourse with a woman where consent is induced by the administration of drugs or liquor, which incites her passions but does not deprive her of her will power, is not guilty of rape. But in the other hand, administration to the woman , without her knowledge or consent, some substance producing an unnatural sexual desire, or such stupor as prevents or weakens resistance, and having sexual intercourse while she is under the influence of such substance is rape^. The administration by the accused of any substance unabling her to understand the nature and consequence and having sex with her amounts to rape.

Therefore, the clause should be amended, to accommodate for the two situations given above. The misuse of the amendment against the accused would be checked by the limitation given in the clause itself- that of the women alleging rape to be unable to understand the consequence and nature of her consent.

Sixthly, is a modification of the conditions given under Section 90 which makes 16 years the minimum age for the consent of the woman for sexual intercourse to be free and valid.

II. Does a false promise to marry fall under misconception of fact?

Moving on to the second part of this paper, the issue is whether a false promise to marry on the basis of which consent is given, is a misconception of fact. In the case of Uday v. State of Karnataka, it was held that “a false promise is not a fact within the meaning of the Indian Penal Code” and hence a false promise to marry cannot fall under misconception of fact. By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. Misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact.

It was held in the case of In Re N. Jaladu which was accepted by a Division Bench of Bombay High Court in Purshottam Mahadev v. State of Bombay that a person having a certain intention is treated as a fact. It has been laid down in Edgington v. Fitzmaurice that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. Applying that principle to a case arising under Section 375, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact.

If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying the victim and the promise to marry held out by him was a mere hoax, the consent supposedly given by the victim will be of no avail to the accused to exonerate him from the ambit of Section 375 Clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bangal which was approvingly referred to in Uday v. State of Karnataka case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end “unless the Court can be assured that from the very inception, the accused never really intended to marry her”. In the Deelip Singh case (supra), this test was applied to decide whether the accused could be convicted under Section 375, IPC on the basis of misconception of fact arising from false promise to marry.

III. Withdrawal of consent after penetration- does it amount to rape?

In a recent case in 2006, State v. Bunyard , the Supreme Court of Kansas ruled that “the rape statute proscribes all non consensual sexual intercourse that is accomplished by force or fear, not just the initial penetration. Thus, a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear, and in the case of consensual intercourse and withdrawn consent, a defendant is entitled to a reasonable time to act after consent is withdrawn and communicated to the defendant; a reasonable time depends upon the circumstances of each case and is judged by an objective reasonable person standard to be determined by the trier of facts on a case-by-case basis.” If the penetrator still continues having intercourse, then the critical element of continuation under compulsion results in rape. Penetration includes the entire sexual act. A recent law review article discusses the California Supreme Court’s failure in the cases of In re John Z to determine what constitutes a “reasonable time”, leads to the disturbing result that men are expected to control their sexual urges eventually, although not immediately, upon withdrawal of consent.

Also, there is a great scope for confusion whether the withdrawal of consent has been communicated to the penetrator. In the State v. Bunyard case (supra), the woman specifically told the accused two times that “I don’t want to do this” after he penetrated her but the defendant did not stop. In In re John Z (supra), the victim told the defendant three times that she “needed to go home”, but the intercourse continued for an estimated 4 to 5 minutes after the victim first told the defendant she needed to go home. In both cases, the communication of withdrawal of consent to the accused has been made in very clear terms and still the intercourse continued and hence amounted to rape.

In a revolutionary step in the rape law, in 2003, the State of Illinois became the first state to address the issue legislatively and passed a statute that explicitly protects a person’s right to withdraw consent at any time during sexual intercourse. The Illinois statute provides that a “person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.” In 2008, In State v. Baby the Court of Appeals of Maryland held that the continuation of intercourse through force or threat of force after withdrawal of consent may constitute rape, even if the intercourse began consensually.

The rape law in India lags behind considerably and this aspect of rape law has not even been broached. Hence it is suggested that such a situation be included under Section 375 IPC secondly clause, because clearly, rape is sexual intercourse without consent and once consent has been withdrawn and the accused is given a reasonable time to withdraw and if he fails to do, further sexual intercourse is unlawful and non-consensual and is an offence under the law.

IV. Role of force in rape cases

In Jarnail Singh v. State of Rajasthan, it was held that “If the woman consents prior to penetration, no matter how tardily and reluctantly, and no matter how much force had been used, the act is not rape.” Voluntary submission by the woman , while she has power to resist no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape. This proposition of law is incorrect as per the views of the authors. Tekchand, J. in the case ofRao Harnarain Singh Sheoji Singh and Ors. v. State observed that “there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent”. Submission of her body under the influence of fear or terror is no consent. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.

Prior to penetration, if free consent is given, it is not rape. But if consent is under fear of terror, then it is rape as it amounts only to submission and not consent. In the latter part i.e. when consent is given under fear, there can be two situations

1. There is resistance against the accused
2. There is no resistance against the accused

Rape law has traditionally emphasized the victim's actions-namely her physical resistance or lack thereof, by using her actions as evidence of her lack of consent, the defendant’s use of force, and his intent.In cases where the woman does not resist, by the judicial precedents in India, it would be considered an unusual conduct on the part of the woman and will be used as an evidence against her and lead to an inference of presence of consent as laid down in Jarnail Singh case,where the accused was acquitted with the court stating that “the prosecution has failed to bring home the use of force to overcome the prosecutrix’s will to resist and the resistance to the utmost by her.” The requirements that the victim resist to the ‘utmost’ and ‘continuously’ until penetration have now been universally repealed. This is because the non-resistance might be due to fear of injury. In State of H.P. v. Mango Ram, K.G. Balakrishnan, J. speaking for the Court stated thus:

“Submission of the body under the fear or terror cannot be construed as a consented sexual act. 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 after having fully exercised the choice between resistance and assent.”

Section 90 clearly says that ‘that consent is no consent if given under fear of injury.’ A woman who consents out of fear of personal violence does not consent at all. Even though no physical force is shown, if the potential force is shown by the man to the woman so as to paralyze by fear her will to resist or if she ceases resistance through fear of great harm ,the consummation of unlawful intercourse by the man is rape. The threat of such force or violence may create a real apprehension of dangerous consequences , or bodily harm , in order to prevent resistance or extort the consent of the victim , and if it so empowers the mind of the victim that she dare not resist, it must be regarded as in all respects equivalent to force actually exerted for the same purpose. The amount of resistance depends from person to person and no set standard can be fixed to determine whether the requisite resistance was given to the accused’s sexual acts. Hence even when no resistance is given, it can amount to rape. Elimination of the physical resistance requirement has been one of the most important goals of rape law reform.

V. Should consent be inferred only from the circumstances of the case?

In the Jarnail Singh case it has been presumed that consent was given by the victim because there were no signs of injury on her or the rapist’s body because if the woman had resisted to her utmost she would have probably borne marks upon her body, face neck, and limbs and she would have inflicted injuries on the body of her assailant even though eye witnesses heard her crying for help and her hymen was found to be broken on medical examination. She also hit the accused with her fists but no injury was found thus the Court did not believe her. Also a spade was lying nearby which she did not use in her defence thereby leading to the inference that she consented. “While determining whether there was a consent, Court must in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, as each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.”  Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

We disagree with the ratio laid down that consent has to be inferred only from the circumstances of the case as it is biased against the women because rape is an act inflicting the gravest mental torture and to expect a woman at the time she is being raped to act as an ordinary reasonable person and use all routes of escapade and give the accused the benefit of doubt for any act not done by the victim to save herself which should have been done by her, is highly irrational and an inhumane approach to deal with such a matter. This gives substance to the impression that rape laws and judicial precedents are heavily loaded against females.

The courts have perverted the explicit objective of rape law, which is to punish men who override women’s will to refuse sex, through the application of doctrinal and evidentiary innovations that implicitly represent rapists’ victims as the perpetrators of their own victimization. Thus the consent should be inferred from the circumstances coupled with the mental state of the victim. Had this been done in the Jarnail Singh case, the verdict of the court would have been completely opposite and hence, fair in the eyes of law.

VI. Acquaintance Rapes – the question of honest and reasonable belief

Legal practice and social attitudes have trouble recognizing as legally impermissible a wider range of sexual interactions, for example non-consensual sex without force, which often includes acquaintance rapes. It is very difficult to prove lack of consent in acquaintance rapes. As the relationship between defendant and victim becomes closer, there is a greater tendency to presume consent.

In DPP v. Morgan the trial judge held that the belief about consent to exculpate the accused has to be reasonable i.e. ‘such a belief as a reasonable man would entertain if he applied his mind and thought about the matter.’ But on appeal to House of Lords, it was held that any belief regarding the woman’s consent, no matter how objectively unreasonable, would establish that it was not rape. This ruling is prima facie incorrect in law. Moreover, the Morgan approach was argued to be partly responsible for the low rate of convictions for the offence of rape because it allowed a person to evade conviction however ‘irrational or crazy’ their belief, provided that the jury found the belief to be honest.

To engage in sex on an unreasonable belief is neglecting the reasonable care that has to be taken while doing an act which is harmful, in this case it is the maintenance of the sanctity of the woman’s mind and body. The ‘reasonable belief of consent’ defense contains two elements, one subjective and the other objective. First, at the time of the sexual conduct, the defendant must have honestly (subjective) believed the victim consented. Second, the defendant’s belief must have been reasonable (objective). What men believe to be reasonable is when they did not use excessive force and the woman did not strenuously resist. But this is not acceptable because this is all from the view of the particular accused who will in all circumstances hold that his belief in the woman’s consent was reasonable according to his ideas.

The second part of Section 90 enacts the provision of consent from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent.

The Sexual offences (Amendment) Act 1976, Section 1(2) declares that if in a trial for a rape offence, the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard in conjunction with other relevant matters, in considering whether he so believed. The Sexual Offences Act, 2003 states in Section 1(1)(c) that ‘A commits rape if A does not reasonably believe that B consents.’ Section 1(2) gives the test as to how reasonableness has to be determined in the following words: Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. It does not define reasonableness. From this it can be inferred that the touchstone for reasonableness of the accused’s belief regarding victim’s consent is a holistic view of all the circumstances in which the alleged offence took place in light of the steps taken by the accused to ascertain the victim’s consent.

In addition to that the reasonable belief of the man has to be tested on the touchstone of the reasonableness according to an ordinary reasonable man other than himself, otherwise the law would be wholly inclined towards the accused as he can and will, at all times take the defence that according to him, his belief was that the consent was honest and reasonable. In other words instead of a particularized inquiry that whether a particular defendant honestly believed his victim consented and then whether that belief was reasonable, courts ask whether any defendant could have reasonably believed that the victim consented in the given circumstances, which is the correct legal position and should be followed in India as well as UK under the Sexual Offences Act, 2003. Crying or verbal resistance should alert a reasonable man to the possibility that the woman does not consent. If this does not alert the defendant, his belief of consent would be negligent. If it does alert him but he ignores the possibility, his belief of consent would be reckless. Thus in both cases the belief in consent is unreasonable. Therefore physical resistance is not necessary to constitute rape. The defence of mistake makes convictions in rape very difficult and therefore it has to be strictly construed.

CONCLUSION

Thus in light of the confusions and ambiguity in the present framework of law, with respect to element of consent in rape, we conclude with the following definition of “consent in rape” which, according to us, encompasses all the aspects of consent that are significant in the conviction for the offence of rape and the definition is worded as follows:

A woman consents, if she agrees by choice, and has the freedom (not under fear of injury, misconception of fact) and capacity (not being of unsound mind, intoxicated so as to be unable to understand the nature and consequences of that to which she consents) and makes that choice for sexual intercourse with a man; and the man has an honest and reasonable belief that such consent was by her free choice made with the required mental capacity.

Explanation 1: If consent for sexual intercourse was given by the woman, but if after penetration she withdraws her consent, but still the man continues the sexual intercourse, then he is said to have committed rape; provided that the woman properly communicates such withdrawal of consent and the man is given reasonable time to withdraw from the sexual intercourse

Explanation 2: Absence or presence of resistance by the woman is immaterial to determine the absence or presence of consent in rape.

Explanation 3: The honest belief of the accused regarding the consent being the woman’s free choice made with the required mental capacity should also be reasonable as it would be to an ordinary reasonable man other than himself.

Explanation 4: Consent given in a state of intoxication, whether voluntary or involuntary, is consent for the purpose of this section, provided the woman had the necessary understanding about the nature and consequences of such a consent.