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HindustanTimes Sat,30 Aug 2014

No means no: without consent, sex is rape

Aloke Tikku, Hindustan Times  New Delhi, February 05, 2013
First Published: 00:40 IST(5/2/2013) | Last Updated: 09:03 IST(5/2/2013)

On consent for sex, the woman's word will be the last one.

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Once the prosecution is able to prove that there was sexual intercourse in a wide-range of cases, the new sexual assault law requires the court to presume that the victim did not consent as claimed by the accused.

The law defines consent as an "unequivocal voluntary agreement" when the person by words, gestures or non-verbal communication communicates willingness. That the victim did not physically resist rape shall not be regarded as consenting to the sexual activity.

Besides police officers, hospital staff and remand home officials, the Criminal Law (Amendment) Ordinance has widened this safeguard to presume absence of consent for victims where the alleged rapist was a relative, guardian, teacher, a person in a position of trust or authority or who had "economic or social dominance".

A government official said this provision would cover sexual assault by superiors at the work place, domestic helps, and backward classes in a rural area.

"This is an exceptional provision which essentially requires the accused to prove his innocence on this count rather than requiring the prosecution to prove absence of guilt," he said.

The ordinance also amends provisions in the Indian Evidence Act - that come into force immediately and can be applied to ongoing trials - that bars the accused from raising questions on the victim's character or previous sexual experience to prove consent.


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