CommentaryRecently, Spain’s Parliament passed a new bill that seeks to make consent the determining factor in sexual assault cases, thus freeing victims from the burden of proving that they were intimidated, subjected to violence or that they physically resisted to show that they suffered a sexual assault. As per the Guarantee of Sexual Freedom law, also known as the “only yes means yes” law, any sexual conduct without consent is considered sexual assault. The Indian judiciary has a long and unfortunate history of placing a higher priority on factors such as the victim’s resistance to the sexual assault, injury marks on the victim and the behavior of the victim before and after the assault, rather than on the victim’s consent, bodily integrity and sexual autonomy; thus, patriarchal structures are legitimized. This article will focus on how the issue of consent has been dealt with by the law and by the courts in rape adjudication in India.
Current Indian Legal Framework
Explanation 2 of section 375 of the Indian Penal Code, 1860 (IPC) defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates 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 that fact, be regarded as consenting to the sexual activity.” Additionally, section 90 of the IPC provides for consent known to be given under fear or misconception and states that consent can be vitiated due to fear of injury, misconception of fact, insanity, unsoundness of mind, intoxication, inability to understand the nature and consequences of an act consented to or being a child. The Indian Supreme Court has consistently held that an accused can be convicted solely on the basis of the testimony of the victim and without corroboration if she is found to be credible and trustworthy. However, the burden to prove beyond reasonable doubt that the woman did not consent to the sexual act lies squarely on the prosecution’s (i.e. the victim’s) shoulders, and the court may believe her testimony only if she is able to provide a consistent narrative.
In 2017, in Mahmood Farooqui v. State (Govt of NCT of Delhi) (“Mahmood Farooqui judgement”), the Delhi High Court stated that a feeble “no” does not negate consent, holding that “a feeble no may mean a yes.” This appalling judgement clearly indicates what rape adjudication in India is missing — the need for legal recognition of an affirmative standard of consent.
What Is Affirmative Consent?
Affirmative consent, colloquially known as the “yes means yes rule” means that consent is actively sought and actively communicated. In the United States, California’s state law has adopted the affirmative consent standard and defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” It further provides that affirmative consent must be ongoing throughout sexual activity and can be revoked at any time. Additionally, the California law includes that neither lack of protest or resistance nor silence means consent, and the existence of past sexual relations should never be assumed to be an indicator of consent. Thus, arguably, the affirmative consent standard is better suited to recognize the social realities in which women live and experience sexual assault.
Women in India, undoubtedly, still live in a deeply patriarchal society where even the courts are steeped in patriarchal beliefs and stereotypes. The traditional system operates on the basis that consent can be presumed, unless it is revoked or withdrawn by women. However, the law needs to change normatively to reduce any legal ambiguity and adopt an approach toward the definition of consent that is less presumptuous and less rationalized into existence when absent.
International Law and Affirmative Consent
The United Nations Committee on the Elimination of all Forms of Discrimination Against Women (CEDAW) in Vertido v. The Philippines recommended a definition of sexual assault that requires the existence of “unequivocal and voluntary agreement” and requires proof by the accused of the steps taken to ascertain whether the survivor was consenting. The adoption of such a standard would not only prevent the survivor from being re-victimized but would also shift the burden to the accused to prove that they did in fact take steps to determine consent instead of placing the entire burden on women to constantly demonstrate that they were not “asking for it,” breaking down the prevalent culture of male sexual entitlement.
Notably, the affirmative consent standard has received significant international acceptance, with the states of New York and California from the United States, New South Wales and Victoria from Australia and Canada having adopted it. In the United States, adopting the affirmative consent standard has gained traction as several universities have voluntarily accepted and implemented it, and five states — California, Colorado, Illinois, New York and Connecticut — have passed laws that require public universities to apply an “affirmative consent” guideline. Further, the American Bar Association, in a resolution proposed in 2019 by the Commission on Domestic and Sexual Violence, also urged legislatures and courts to adopt a definition of consent expressed by words or action in any circumstance, and reject any requirement that sexual assault victims would have a legal burden of verbal or physical resistance.
In the Canadian case of R. v. Ewanchuk in 1999, the Canadian Supreme Court discarded the defense of implied consent and specifically went on to note that the concept of implied consent rests on the assumption that unless a woman protests or resists, she should be “deemed” to have consented. The Court also held that implied consent was often erroneously based on the mythical assumption that when a woman says “no” she is really saying “yes,” “try again” or “persuade me,” and judicial acceptance of such an implied consent standard would amount to a gross violation of women’s sexual autonomy.
Need for Adoption of the Affirmative Consent Standard in India
The Mahmood Farooqui judgement is only the most recent example of how a lack of vigorous physical and verbal resistance has been construed by courts to amount to consent to sexual activity. Indian courts, unfortunately, have an abysmally long record of such judgements, which can be traced back to the infamous Mathura rape case where the Indian Supreme Court acquitted the accused on the basis that the act of sexual intercourse had been a “peaceful affair” with a lack of marks of injury on the teenage victim and that the she was habituated to sexual intercourse. Courts in India have often relied on the lack of physical resistance, struggle or submissive nature of the victim to rationalize, construe or imply consent, where none actually exists. In Raja & Ors. v. State of Karnataka, the Supreme Court once again acquitted an accused based on the observation that the conduct of the victim during the alleged ordeal was unlike a victim of forcible rape and betrayed a “somewhat submissive and consensual disposition” and the nature of the exchanges between the victim and the accused persons were not consistent with those of an unwilling, terrified and anguished victim of forcible intercourse.
Such judgements perpetuate a requirement of resistance for the sexual act to be considered rape, which in reality, is not included as an ingredient to prove rape under Indian law but is ultimately the standard that is being followed due to the continued reliance on stereotypes that inform rape adjudication in India. Such stereotypical judicial constructions thus conflate a lack of consent with a complete physical incapacitation as patriarchal rhetoric even in courtrooms cultivates the belief that a woman’s chastity is worth more than her life.
Thus, even in courtrooms, women’s behaviour before, during and after experiencing sexual assault is microscopically examined, and even a minor deviation from the image of the ideal victim in the judge’s mind can easily result in acquittal. In this social reality, the adoption of an affirmative consent standard can not only protect women’s sexual autonomy but also remove any scope of interpretation, perception or construal of consent. India should first take steps to curb judicial stereotyping of rape and sexual assault victims and, second, embrace a victim friendly approach toward rape adjudication, which can be realized with the adoption of the affirmative consent standard, which provides absolute clarity on the unwillingness of a woman to engage in sexual activity and minimizes the scope of absence of a “no” being construed as a “yes.”
Avanti Deshpande is a final year law student at ILS Law College, Pune, India. Her research interests include human rights law, gender studies, environmental law and public international law.
Suggested citation: Avanti Deshpande, Adopting the Affirmative Consent Standard: India Needs to Move Toward Victim Friendly Rape Adjudication, JURIST – Student Commentary, June 15, 2022, https://www.jurist.org/commentary/2022/06/avanti-deshpande-affirmative-consent-India/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
