In an important judgment, the Kerala High Court recently highlighted an oft missed nuance about consent in relationships. It noted that being in love, or being in a relationship, doesn’t automatically imply consent for sexual intercourse with a person or partner.
The bench, comprising Justice R. Narayana Pisharadi, was ruling on a plea by a man who was convicted for having sexual intercourse with a minor without consent. The 26-year-old was charged under multiple sections of the Indian Penal Code, including Section 376 which deals with rape and Section 3 and 4 of the Protection of Children from Sexual Offences (POSCO) Act. He took the 17-year-old girl he was in a relationship with to a hotel and raped her; also coercing her to go with him by threatening suicide.
The court upheld the rape conviction by a lower court. The bench noted that the girl did not consent to sexual intercourse with the man. “It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option,” the court said, as reported by LiveLaw. In other words, just because the person was in love with the accused, it is incorrect to presume consent for sexual activity.
There remains cultural ambiguity around the idea of consent. The misconception is multifold: If someone is married, they may have given lifelong consent to sexual intercourse; if someone is in a relationship, the consent is implied. What complicates consent is the assumptions that people often make.
“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse,” the court said in its order, dated October 31. “Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law,” they added, referring to the forceful submission of the complainant in this case.
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Non‑Penetrative Sexual Acts Without Consent Also Count as Rape, Kerala HC Rules
Moreover, other grounds for establishing a lack of consent included physical evidence. That the complainant was missing physical marks of assault on her body doesn’t amount to consensual sex.
“There is a gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow,” the court noted. The distinction, as it happens, is critical to make. Helplessness is hard to prove tangibly and is sidelined in the legal and social constructs of assault. Earlier, another bench of the Kerala High Court significantly ruled that non-penetrative sexual acts without consent count as rape.
According to a survey by Pauline Bart, an American sociologist who studied violence against women, 5% of women were raped by relatives, 4% by husbands, 1% by lovers, 3% by ex-lovers, and 8.4% by men with who they shared intimate relationships with. There are two takeaways: one, less than 41% of women who were raped were rapedby strangers, and two, rape is still a horrid transgression people can make when in relationships. As Bart puts it, rape is a “power trip, not a passion trip”.
Similar judgments that erect boundaries around what consent should look like are integral to adding much-needed legal nuance in sexual assault cases. Earlier this month, the Punjab and Haryana High Court ruled thatgiving consent to sex in the past doesn’t imply consent in the future. “Even on the assumption that if two persons previously had a consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions,” the bench noted then, dismissing the bail plea of an accused.
The law is a reflection of the tussle about women’s autonomy in society, but that it can also respond in moreways than one. In the present case, the court argued the person’s judgment and the moral effect sex may have on them are the onlyprerequisites for consent — not relationship status.
