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DILEMMAS OF CONSENT AND COERCION IN RAPE

Socio Legal Corp

Written by – Sruthi Sadhasivam

Rape is very much, a product of patriarchy and is being committed in the name of preserving caste purity and upholding one’s religious identity. Section 375 of the Indian Penal Code defines rape as forced sexual intercourse with a woman, sexual intercourse with a woman of unsound mind or when she is intoxicated, and obtaining consent by fraud or by getting her consent by placing her or the person she is interested in, in the fear of hurt or death. Whatever be the causes of rape, the crime is real, and India is certainly a breeding place for such transgressions.

IS CONSENT NECESSASARY AT EVERY LEVEL OF RELATIONSHIP AND SEXUAL ADVANCEMENT?

There exists a very thin line between consensual sex and rape and that makes it all the more problematic. The lack of any written document on when consent is required or what constitutes consent, it becomes easy to violate boundaries. Is consent a gentle smile, a wink of the eye or sweet words? The fact is even a stern look indicates absolute objection and unwillingness towards a particular act and the perpetrator must refrain from doing so.

In the very recent case of Varun Hiremath, the journalist is accused of raping a 22 year old model who went to visit him. In this case, both had met in Khan market, New Delhi and had got to know each other through an online dating app called Tinder. Later, when both had gone to ITC Maurya hotel, the model accused Varun to have raped her.

The case makes it clear that a mere friendly interaction with a person cannot be used as a justification to presume that the person has consented to a carnal relationship.

What right does one have to violate other’s physical freedom under the pretext that they know that person? Does that mean, if two individuals know each other, they have all the rights to rape the other person? Even if its true that both of them had developed a sexual relationship, how is it justified to force sex, on the other despite the person disapproving of it?

Tarun Tejpal’s case is a chief example as to how not to arrive at judgements as done in this case by the court. The testimony of the victim was used against her. Even worse, the judge goes on to explain as to how a woman must behave when being sexually assaulted. Rather than focusing on how a victim must behave, dress, express or act during as grave a time as sexual assault, its time society start condemning the perpetrators for their egregious acts without which the malefaction wouldn’t have happened in the first place.

These cases bring to limelight the significance of consent in a relationships of any kind with a special emphasis especially on sexual relationship. Consent is not a forever thing; a person might give consent at one point but withdraw it at some other time and it must be respected. Consent must be informed and cannot be implied or assumed. It is a prerequisite at every level of relationship.

CAN THERE BE A CASE OF RAPE IN LIVE IN RELATIONSHIP?

Absolutely! There is a clear distinction between rape and consensual sex. There have been several cases filed in courts by women in live in relationships claiming that their partner had violated their body by falsely promising to marry them. In such cases the court has ruled that it cannot be considered as rape as both the partners had engaged in consensual sexual intercourse. However, if the man had engaged in sex by committing to a false promise of marriage only with intention to satisfy his lust, then it would amount to deception or cheating.

CAN IT BE CONSIDERED RAPE IF IT HAPPENS AFTER MARRIAGE?

Marital rape has no place in Indian laws, atleast it is not illegal in India. According to Section 375 of IPC, a man cannot rape his wife aged between 15-18 and the law has no problem if the same man rapes the woman after she crosses the 18 age barrier.

Such an arrangement is what is called the highest expression of patriarchy. It’s like saying a man owns the body of woman after marriage. The only difference between a married and unmarried woman is the nuptial necklace. Thereby, a nuptial necklace in a woman is all that is needed to violate the latter’s body. The only difference is that rather than a random person, the woman’s husband itself rapes her. The notion of implied consent in marriage is a dangerous perception and has to be eliminated. It stems out from the culture that celebrates marriage as a mere transaction business where the woman is treated as a mere property and is transferred from the father to the husband. Doesn’t rape by a known person makes it even more a gruesome crime than rape by an unknown person?

Even worse, there has been a rise on rape-marriage cases in India, where the court itself suggest that the victim marry her rapist. It is high time rape is criminalized in all forms. Forced consent irrespective of whether the person is in a relationship or not, amounts to violation of body autonomy and privacy.

IS RAPE A GENDER NEUTRAL CRIME?

Hell yes! Rape is not something that can be committed only against a woman, men and transgenders too can get raped. Thereby, Rape is a gender neutral crime. Although it does not happen in equal proportions for all genders, one cannot trivialize rape no matter for whom it happens.

It can happen to anyone, but our legal apparatus is such that it portrays only women as the victims of rape. Transgender Persons (Protection of Rights) Act 2019 criminalizes physical, verbal, economic, emotional and sexual abuse of transgenders and provides a jail term of maximum 2 years with a fine but if a man raped a woman, the law provides a punishment of minimum 10 years that can be extended for life and in some cases, it calls for death penalty. A crime is a crime regardless of who the perpetrator or victim is. We cannot have such gender biased or sexist laws for any case. Given that, especially in cases like rape where the physical and psychological repercussions are extremely severe, laws need to be framed with atleast minimum level of rationality and sensibility.

To conclude it takes guts for men and transgender community, even to lodge a rape case. Thereby the legal framework has to evolve for social attitudes to change. Gender sensitization programs need to be organized at all levels to create awareness on these critical issues.

REFERENCES

https://thewire.in/law/tarun-tejpal-and-curious-case-of-the-coerced-confession

https://www.healthline.com/health/sexual-coercion

https://www.healthline.com/health/healthy-sex/wake-up-sleeping-sex-sexual-assault

https://www.indiatoday.in/india/story/sex-on-promise-of-marriage-is-not-always-rape-says-delhi-high-court-1750554-2020-12-17

https://indianexpress.com/article/cities/delhi/varun-hiremath-delhi-high-court-extends-interim-protection-from-arrest-to-journalist-rape-7276888/

https://www.livelaw.in/top-stories/varun-hiremath-rape-case-supreme-court-hearing-plea-against-bail-175213

https://timesofindia.indiatimes.com/blogs/legallythinking/failed-live-in-relationship-is-it-rape-or-breach-of-promise/

https://ccs.in/indias-law-should-recognise-men-can-be-raped-too

https://www.theguardian.com/society/2021/jun/15/the-sexual-assault-of-sleeping-women-the-hidden-horrifying-crisis-in-britains-bedrooms

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