The judgment of Delhi High Court in the case of Mahmood Farooqui v. State, 2017, brought about various problematic angles to the already confused concept of ‘consent’ from the constitutional point of view. There the accused forced himself on the American Ph.D. researcher, came to meet him as part of her research, and performed oral sex upon her, even after being denied consent. But seemingly, the court declared the 'NO' on her part was too feeble to be considered and that a lack of consent asks for expression in such a way that the appellant could understand. This occurrence highlights various legal constraints a woman has to face while registering an FIR not only for asking justice but also for defending her position. Consent is defined by a layman as the voluntary agreement to an act or proposal of another. But there has been a coat of ambiguity over the definition of consent in rape laws as given legally. Section 90 of IPC states ‘Consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.’ In Section 375 of the Indian Penal Code, a more expressed form of the definition has been mitigated, which read as "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicated willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of the fact, be regarded as consenting to the sexual activity." But even this definition has failed to achieve a comprehensive outlook over the matter as has been mentioned above.
Although consent is the center of the offense, it is many a time confused with the will. Where will mean a desire to do something, consent means the willingness to do the same. This distinction comes in handy while looking into the matter of marital sexual assault and date rape. The paradigm of consent by the society fails to recognize the dissent by a married woman for sexual intercourse as this institution of marriage is very deeply rooted which further advances the male entitlement over the female body. This conditioning of the society irrevocably signifies how a women's body is deemed to be a property of men, and once knotted the property might be used as he wishes. The police most often do not register complaints of marital involvement granting them this status of "a matter between a husband and wife."
Supreme Court has held that breach of promise to marry followed after sexual intercourse, can only be considered as rape if the prosecution can prove that made promise was false from the very beginning. Even in cases of date rapes, where the victim has been assaulted by her romantic or potentially romantic partner, she needs to prove for her dissent and not the other way round. This burden shouldered over the victims to lay proofs on how they did not consent has to be actively transferred to the assaults asking them whether they ‘sought’ the consent.
This conceptualization of consent has a virginity angle in itself. While the assaults against the chaste lady are still considered if visibly her scars are predominant on her body, assaults against the lady who has had intercourses in past are simply ignored most of the times. Culturally, this definition keeps on changing according to age, virginity, preconceptions, and so on. Consent can be framed and molded out of dominance, fear, forcefulness, strength differences, and authority while not forgetting there have been cases where consent was just presumed. The data by The National Sexual Violence Resource Center depicts that more than half (51.1%) of female victims of rape reported being raped by an intimate partner and 40.8% by an acquaintance. This is majorly done on a fake consensual basis targeting the loopholes in the rape laws. This lack of real choice of consent hampers the whole point of protecting the sufferer and demands clear recognition and defining.
One popular notion that exists and is advancing is the allegations or the false claims made under the veil of sexual assault. Consent as of now can lure these false allegations for the fulfillment of personal motives. But on contrary to this, this subjectivity and danger are in every other form of crime that man could think of. There are innumerable cases where the witnesses have been found to manipulate the facts for personal ambitions, but as the judiciary stands, it has to deal profoundly and actively with such derogations. So, this argument seems to be hollow in itself and especially when reported cases are already hanging low as anything. A study conducted by Vasudev in 2002 (Journal of international women's studies) found that only 10% of rape cases are reported and that only 5% of accused are convicted.
 |
| Source- Unsplash |
Consent can be of various forms be it in form of gestures, verbal, and other nonverbal communications. So under this, the law seems handicap as the only witness who remains is the victim itself. Thus the whole procedural outcome cycle around the injured defending herself already signifies how less her consent is valuable.
The reformation in a rape case is the dire need as following Criminal Law (Amendment) Act 2013. The UN recommendations are one way to move ahead with this by strengthening the "unequivocal and voluntary agreement" standard laid down in the IPC by requiring proof of steps taken by the accused to ascertain the complainant's consent. An Affirmative standard of consent has to be framed for making a more comprehensive and practical procedure. This with the proper implementation and positive cultural influx can make the place better for women to come forward to seek justice without contemplating and questioning their dignity.
BY ROSHNI
References:
https://www.google.com/url?sa=t&source=web&rct=j&url=http://ncw.nic.in/sites/default/files/Chapter02.pdf&ved=2ahUKEwj4urnAnqbvAhW0xTgGHXulAF8QFjAAegQIARAC&usg=AOvVaw33sfkLJO1vhstYOUIGYyd8
https://www.google.com/url?sa=t&source=web&rct=j&url=https://lawcat.berkeley.edu/record/1128891/files/fulltext.pdf&ved=2ahUKEwj4urnAnqbvAhW0xTgGHXulAF8QFjACegQICRAC&usg=AOvVaw3_LXSfKi0bLamFIt6276TD
https://www.google.com/url?sa=t&source=web&rct=j&url=https://en.m.wikipedia.org/wiki/Age_of_consent&ved=2ahUKEwj4urnAnqbvAhW0xTgGHXulAF8QFjAGegQIChAD&usg=AOvVaw1w9P5JXTTd5SGJQn5ufBJx
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.nsvrc.org/statistics&ved=2ahUKEwiciuqBn6bvAhWJ4XMBHcJyASMQFjABegQIAhAF&usg=AOvVaw1-iulG3EV3wuaK-Lbr3g-w
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.rainn.org/articles/legal-role-consent&ved=2ahUKEwj4urnAnqbvAhW0xTgGHXulAF8QFjABegQIAhAC&usg=AOvVaw12aMl7OjeRd_yTk86l01d4
The judgment of Delhi High Court in the case of Mahmood Farooqui v. State, 2017, brought about various problematic angles to the already confused concept of ‘consent’ from the constitutional point of view. There the accused forced himself on the American Ph.D. researcher, came to meet him as part of her research, and performed oral sex upon her, even after being denied consent. But seemingly, the court declared the 'NO' on her part was too feeble to be considered and that a lack of consent asks for expression in such a way that the appellant could understand. This occurrence highlights various legal constraints a woman has to face while registering an FIR not only for asking justice but also for defending her position. Consent is defined by a layman as the voluntary agreement to an act or proposal of another. But there has been a coat of ambiguity over the definition of consent in rape laws as given legally. Section 90 of IPC states ‘Consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.’ In Section 375 of the Indian Penal Code, a more expressed form of the definition has been mitigated, which read as "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicated willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of the fact, be regarded as consenting to the sexual activity." But even this definition has failed to achieve a comprehensive outlook over the matter as has been mentioned above.
Although consent is the center of the offense, it is many a time confused with the will. Where will mean a desire to do something, consent means the willingness to do the same. This distinction comes in handy while looking into the matter of marital sexual assault and date rape. The paradigm of consent by the society fails to recognize the dissent by a married woman for sexual intercourse as this institution of marriage is very deeply rooted which further advances the male entitlement over the female body. This conditioning of the society irrevocably signifies how a women's body is deemed to be a property of men, and once knotted the property might be used as he wishes. The police most often do not register complaints of marital involvement granting them this status of "a matter between a husband and wife."
Supreme Court has held that breach of promise to marry followed after sexual intercourse, can only be considered as rape if the prosecution can prove that made promise was false from the very beginning. Even in cases of date rapes, where the victim has been assaulted by her romantic or potentially romantic partner, she needs to prove for her dissent and not the other way round. This burden shouldered over the victims to lay proofs on how they did not consent has to be actively transferred to the assaults asking them whether they ‘sought’ the consent.
This conceptualization of consent has a virginity angle in itself. While the assaults against the chaste lady are still considered if visibly her scars are predominant on her body, assaults against the lady who has had intercourses in past are simply ignored most of the times. Culturally, this definition keeps on changing according to age, virginity, preconceptions, and so on. Consent can be framed and molded out of dominance, fear, forcefulness, strength differences, and authority while not forgetting there have been cases where consent was just presumed. The data by The National Sexual Violence Resource Center depicts that more than half (51.1%) of female victims of rape reported being raped by an intimate partner and 40.8% by an acquaintance. This is majorly done on a fake consensual basis targeting the loopholes in the rape laws. This lack of real choice of consent hampers the whole point of protecting the sufferer and demands clear recognition and defining.
One popular notion that exists and is advancing is the allegations or the false claims made under the veil of sexual assault. Consent as of now can lure these false allegations for the fulfillment of personal motives. But on contrary to this, this subjectivity and danger are in every other form of crime that man could think of. There are innumerable cases where the witnesses have been found to manipulate the facts for personal ambitions, but as the judiciary stands, it has to deal profoundly and actively with such derogations. So, this argument seems to be hollow in itself and especially when reported cases are already hanging low as anything. A study conducted by Vasudev in 2002 (Journal of international women's studies) found that only 10% of rape cases are reported and that only 5% of accused are convicted.
Consent can be of various forms be it in form of gestures, verbal, and other nonverbal communications. So under this, the law seems handicap as the only witness who remains is the victim itself. Thus the whole procedural outcome cycle around the injured defending herself already signifies how less her consent is valuable.
The reformation in a rape case is the dire need as following Criminal Law (Amendment) Act 2013. The UN recommendations are one way to move ahead with this by strengthening the "unequivocal and voluntary agreement" standard laid down in the IPC by requiring proof of steps taken by the accused to ascertain the complainant's consent. An Affirmative standard of consent has to be framed for making a more comprehensive and practical procedure. This with the proper implementation and positive cultural influx can make the place better for women to come forward to seek justice without contemplating and questioning their dignity.
References:
Comments
Post a Comment