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The RAPES We Don’t Talk About
Sexual consent is an agreement to participate in a sexual activity. Before being sexual with someone, you need to know if they want to be in physical contact with you too. It is also important to be honest with your partner about what you want and what you don’t want. Both people must agree to have sex every single time for it to be consensual.
Although, it may seem like the lines are blur between consensual sex and rape but the difference is actually very simple. Consensual sex is sex that both the parties involved in is agreeing for it prior to the sexual activity and throughout it. Rape happens when someone involved in the sexual activity does not agree to it and is doing it against his/her will, and/or because they feel forced or coerced into it. It is crucial to note that consent must be given before the sexual act and it can be withdrawn during the act.
Consent is easy as FRIES:
a)Freely Given – Considering is a choice you make without pressure or under influence of any substance.
b)Reversible – Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before and even if you’re both naked in bed.
c)Informed – You can only consent to something if you have the full story. For Instance, if someone says they’ll use a condom and then they don’t, there isn’t full consent.
d)Enthusiastic – When it comes to sex, you should only do stuff you want to do, not things that you feel you’re expected to do.
e)Specific - Saying yes to one thing (like going to the bedroom to make out) doesn’t mean you’ve said yes to other thing (like having sex).
False reporting of rape is being used as the most effective weapon to avenge an old rivalry, be it of caste, religion or class. Even without punishment, the social reputation of the accused is so damaged that it is difficult to restore it. Although, it is difficult to verify if a false case of rape is being made, it cannot be denied that such cases are increasing.
In today’s day and age, consensual sex between minors has become an accepted norm, at least amongst teenagers living in urban areas. Despite that, legislation has been slow to stay in tune with the times. Hence, criminalizing all sexual behavior for individuals less than 18 years of age can be problematic. For instance, considering a child of 17 years of age as a criminal deserving rigorous imprisonment because he had consensual sexual relationship with another 17-year-old is not an appropriate measure.
Even well-meaning laws like POCSO (The Protection of Children from Sexual Offences) can have unintended negative consequences. Apart from an outdated moral viewpoint being imposed on children, another reason why consensual sex between minors has been in a legal grey area is because of what the Indian law considers as valid consent. Consensual sexual acts fall under the purview of right to privacy of a human being. This has been recognized under Article 21 by the judgment of a nine-judge bench of the Supreme Court in the landmark case of Justice Puttaswamy v. Union of India (2017). Considering consensual sexual acts as a crime violates the right to privacy of the minors.
Let’s discuss few case laws:-
In a particular case, Supreme Court held that in a prolonged live-in relationship; consensual sex between couples could not be categorized as rape. The case was related to two call center employees who were in live in relationship for five years. The man finally married another woman, leading to spurned lover slapping rape charges against him accusing the man of indulging in sexual intercourse on the false promises of marriage. There is a clear distinction between rape and sex.
The Bombay High Court said that if evidence of a deep love affair exists, the man cannot be convicted of rape on the basis of misinterpretation of facts. The Court said this while dismissing an order given by a lower court in a 2013 case where a man was convicted of raping a woman by promising to marry her.
In the case of Sabari v. Inspector of Police (2018), the Madras High Court has said in passing, or as obiter dicta, that consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity. Since it was said as obiter dicta, it cannot be enforced as law, but it has persuasive value for future judicial and legislative decisions. The Court considered this a logical conclusion from a consideration of ground realities and post-modern moralities of this decade.
A Delhi District Court has observed that consensual sex with a girl aged below 18 years does not constitute an offence under the Protection of Children from Sexual Offences Act. The court said the provisions of POCSO Act suggest that where a physical relationship without the minor girl’s consent or where the consent has been obtained unlawfully, only that would amount to a crime. Hence, consensual sex is no offence. It was believed by the court that criminalizing such acts would be too restrictive of children’s autonomy and hence, would not serve the purpose. Now, whether the particular consensual sexual act amounts to exploitation or not is highly circumstantial and discretionary.
As I come to the end of this piece, knowing where to start this blog wasn’t the problem, its stopping that’s the real issue when there is so much more to say. The scenario is changing day by day. Statute and legislation are completely dependent on the people and complete framework is done by them. But still, it is the requirement of the society to scrutinize the definition of rape and was highly appreciated by the society. We lack on the implementation part and this is the need of hour and we need to move according to present scenario.
FEW NUMBERS
No. of Rape cases in India (Reported) in following years:
2005 – 18359
2010 -22172
2015-34651
2016-38947
2020-28046
Interestingly, the number of cases unreported is much more than the reported one. The rape statistics of 2019 reported is nearly 32000 and to our surprise in more than 94% cases, it was committed by the persons known to the victim.
(Adv Vedika Chaubey can be contacted on vedikachaubey@gmail.com)
