Clarity on consent in sexual relations is key in curbing rape - Hindustan Times
close_game
close_game

Clarity on consent in sexual relations is key in curbing rape

BySiddhartha Misra, Anukriti Sharma
Apr 24, 2024 11:36 PM IST

A plethora of cases are regularly reported in which “consent” becomes a bone of contention between the parties

Mutual consent is the accepted basis of any intimate relationship. A plethora of cases are regularly reported in which “consent” becomes a bone of contention between the parties, with one insisting on its absence while the other on its presence. Many criminal justice systems in the world are making efforts to set a standard of consent in cases of sexual offences. It is also fundamental to understand consent to eliminate rape shield defences that continue to haunt rape survivors. In the absence of a clear understanding of the concept of consent, they are left without a sense of justice. Thus, evolving an understanding of consent becomes imperative.

Recently, the “only yes means yes” law was introduced in Spain after the La Manada case jolted the country because of the inability of the then rape laws to provide justice to the survivors of gang rape.(Pixabay) PREMIUM
Recently, the “only yes means yes” law was introduced in Spain after the La Manada case jolted the country because of the inability of the then rape laws to provide justice to the survivors of gang rape.(Pixabay)

A recent survey by the online dating app Tinder has revealed that young adults are largely ignorant about the importance of seeking consent in a sexual relationship. About 65% of respondents in the age group of 18-30 stated that they do not have adequate knowledge on what constitutes consent, and how it should be sought. The latest National Crime Records Bureau data reveals that there is one rape every 16 minutes in India. The statistics are horrifying. But these are just the official numbers and the reality is even more appalling. Every day, we come across reports of room partners allegedly raping their roommates despite sharing platonic relationships, the shocking instances of digital rape, and the non-criminalisation of marital rape, which exacerbates the issue of underreporting of rape as these acts seldom make it to the official statistics due to lack of sensitisation around consent.

Consent is defined under Sections 90 and 375 of the Indian Penal Code (IPC). While Section 90 defines consent generally as unequivocal and voluntary, Section 375 defines situations regarding what will constitute a violation of consent in cases of rape. The initial amendment regarding consent in rape laws was triggered as an aftermath of the decision in Tukaram v. State of Maharashtra. This resulted in the Criminal Amendment Act, 1983 which added Sections 376B, 376C, and 376D in IPC, and simultaneous change was brought in the Indian Evidence Act by incorporating Section 114A, which presumes the absence of consent if the victim contends absence of consent in sexual intercourse if the act of sexual intercourse is proved. Subsequently, Section 53A was added in 2018 to counter the character assassination of the survivor to imply consent based on the sexual history of the woman. The amendments are introduced based on the Justice Verma Committee Report that sheds light on the interpretation of consent as unequivocal in the light of the recommendations made by the 84th Law Commission of India: “Consent is the antithesis of rape. Some may find any discussion on consent too complicated. When circumstances in life present an infinite variety, the law must be well equipped to deal with them, nuances of consent are therefore unavoidable.”

An attempt is being made to redefine consent as an affirmative expression across different jurisdictions. Recently, the “only yes means yes” law was introduced in Spain after the La Manada case jolted the country because of the inability of the then rape laws to provide justice to the survivors of gang rape. The laws in the United Kingdom and Canada have also been modified to add the element of “affirmative consent”. In India, even though Section 375 doesn’t explicitly use the term “affirmative consent”, the text implies that the standard of consent is on a par with that sought by the United Nations Handbook, in terming/requiring consent as “voluntary and unequivocal” and making it mandatory for the parties to take active steps to ascertain consent.

However, the practical reality shatters the academic and legal discussion on the concept of “consent”. The general public finds affirmative consent difficult to fathom and sometimes too regulatory in nature. The field experiences reflect how understanding consent is so deeply laden with patriarchy, despite bodily autonomy being considered a fundamental right, that the discussion on consent still remains a privileged affair. Contextual circumstances, such as power disparities, relational dynamics, material inequalities, and socio-cultural norms continue to plague not only the members of the society but also the institutions trusted to enforce the provisions of law.

While the change in law on consent is a welcome step, it needs to be brought with necessary measures that fill the gaps that dilute the evolving understanding of consent. Guidelines that aid in interpreting active consideration of consent need to be drafted. The idea should percolate to all levels of the criminal justice system through frequent capacity-building exercises to equip the stakeholders with the confidence and intent to handle such cases with empathy.

Siddhartha Misra is a senior assistant professor, faculty of law, University of Delhi, and Anukriti Sharma is a research officer at TISS, Mumbai. The views expressed are personal

Tell us what your First Vote will stand for in a short video & get a chance to be featured on HT’s social media handles. Click here to know more!

Get Current Updates on India News, Elections 2024, Lok sabha election 2024 voting live , Karnataka election 2024 live in Bengaluru , Election 2024 Date along with Latest News and Top Headlines from India and around the world.

Continue reading with HT Premium Subscription

Daily E Paper I Premium Articles I Brunch E Magazine I Daily Infographics
freemium
SHARE THIS ARTICLE ON
Share this article
SHARE
Story Saved
Live Score
OPEN APP
Saved Articles
Following
My Reads
Sign out
New Delhi 0C
Thursday, May 23, 2024
Start 14 Days Free Trial Subscribe Now
Follow Us On