INTRODUCTION
Recently, the Noida village head was accused of raping a woman working at his house. In Indore, a minor was raped by her friends with whom she went picnicking. A woman in Kota, Rajasthan was raped and robbed by an acquaintance. Other than the fact that all the offences mentioned constitute rape, the common factor between them is that the victims knew the accused. There was already an existing relationship between the two sides, either as a friend, as an employer, as a relative or as any other such relation. This is known as acquaintance rape, where the victim is aware of the person committing the offence, who might either be a member of the family, a close friend, a colleague or even a person with whom the victim might have gone on some dates.
India reported 32,559 rape cases in 2017 out of which is 93.1% of the cases, the accused were known to the victims.[1] However, the conviction in the rape cases was just 32.2%.[2] This shows an extremely appalling situation demonstrating the lack of adequate recourse to safety for the female population. The fact that in the majority of the cases, the accused and the victim know each other also portrays the convenience which an acquaintance might feel in committing the offence. The striking difference between the rate of rapes committed by a stranger and those committed by an acquaintance highlights the fault in the law which makes such offences continue unabated.
Under §375 of the Indian Penal Code, 1860, a man is said to commit rape when the act was done is either against the will or without the consent of the woman. According to Explanation 2 of the section,
“Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”.
Though this section provides for an unequivocal agreement, the fact that gestures or another form of verbal communication are considered, ambiguity arises in the communication of the willingness. This criteria of ‘communication of willingness’ fails to consider the circumstances under which such an action would not be possible and especially in the cases of an acquaintance.
In several situations, the relation with the accused prevents the victim from effectively communicating what is in reality desired by her. In the case of an elder such as a relative from the family or even the person under whom the victim is working, declining consent in an unambiguous manner is not effectively possible. Due to various reasons such as preventing the ‘family honour’, a sense of respect or affection for the acquaintance or even a genuine and a strong feeling of fear of consequences, the victim isn’t able to unequivocally communicate unwillingness. The criteria of the ‘non-verbal communication’ or ‘gestures’ are in benefit of the culprit which can be used in cases where such communication was ambiguous. In case the accused is a close friend or a person for whom the victim might have some affection, even if a gesture or any other form of action not meant to communicate the willingness to enter into a sexual act, if perceived as such willingness by the accused, then that would be considered as the consent of the victim to the sexual act. The ambiguity in the area of communication leads to the consent of the victim is established, even if it was not desired or wanted by her, specifically in cases involving an acquaintance.
In the case of Mahmood Farooqui v. State (Govt. of NCT of Delhi)[3], this ambiguity in the section was clearly used by the accused. The victim was a student of Columbia University, New York and was in search of some contact at Gorakhpur to get information regarding Nath Sampradaya. In this context, she had met the accused several times, become very familiar with him and had the opportunity to interact with him on several occasions. The relation was more than just a formal relation or a normal friendship and they used to exchange kisses without protest. On the day of the offence, the accused forced the victim into a sexual act which was more than the usual hugs and kisses. The victim pleaded that though she had an affection for the accused, she was not willing to perform the sexual act.
However, the court opined that in several situations of a woman, a feeble ‘no’ may mean a ‘yes.’ The court observed –
“When the parties are known to each other …. it would be difficult to decipher whether little or no resistance and a feeble no, was a denial of consent”.
The situation before and after the performance of the sexual act may not be of so much relevance to determine consent, but what was communicated to the accused at the time of performing the sexual act. Because there wasn’t a clear communication of fear or unwillingness on the part of the victim, consent was inferred here by the court. This observation by the court ignores the plight of the victim in the particular situation and fails to give consideration to the fact that in such a horrifying situation when there already exists a bond between the two sides, accurate communication of what is wanted by the victim cannot be made.
The court in the case of George Masih alias Billa v. The State of Punjab[4] reasoned that there were no struggle marks on the body of the victim and she seemed to be a girl of easy virtue. Due to the fact that the victim earlier had a liaison with the accused and at the time of the offence no injury was received by her, a case of mutual consent was established. The court failed to reason that that as the victim was a minor and the accused was a close acquaintance of her, it was likely that even though the victim did not want to indulge in the sexual act, consent might have been communicated to the accused through certain gestures or the non-verbal communication. This leeway given to the culprits becomes a grave cause of injustice served to the victim.
In-State of Assam v. Shri Gobinda Chandra Das[5], it was observed by the court –
“While considering the question of consent, reasonable belief of the offender about the prosecutrix having consented may also become relevant”
In the same judgment, the court held that it was the onus of the prosecution to prove the absence of consent in the sexual act. This again puts the requirement of consent on what is perceived by the accused. Though the court lays down that some sort of reasonable resistance is required to consider the act non-consensual, it fails to pay heed of the circumstances under which such resistance by the victim isn’t possible thereby leading to the benefit of the culprit.
These judgements show that the ambiguity in the law causes the consent to be assumed by the accused which further leads to their acquittal. An assumed consent, even though envisioned not to happen, is promoted by criteria demanding specific communication which leads to weakening the stance of the victim. There is a need to recognise that in cases of an acquaintance there already exists an enormous social burden on the victim, where the chances of victim-blaming are higher and along with that the psychological effect which the actions would lay on the victim due to the complete ruination of the feeling of trust and security. In these circumstances, it is reasonable to consider that at the time of the offence, the victim wouldn’t be in a position to communicate the unwillingness to participate in the sexual act, even though the act by no means is desired by her.
Recently the Kerala High Court held that-
“It is now settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent.”[6]
CONCLUDING REMARKS
There is a growing need to identify that due to the mere fact that the sexual act participated in by the victim was voluntary, consent cannot be inferred. The voluntary action of the victim must be backed by an unambiguous willingness to enter into the act and consent must be provided for every specific sexual act. Hence there is a need to relax the criteria of communication, especially in the rape cases involving an acquaintance as that is the manner in which ambiguity in perceiving the consent of the victim can be solved.
Author(s) Name: Anshpreet Singh Chowdhary (Student, National Law University, Delhi)
References:
[1] ‘No Stranger to Crime: 93% Rapes in India Committed by Persons Known to the Victim’ News 18 (New Delhi, 22 October 2019) <https://www.news18.com/news/india/no-stranger-to-crime-93-rapes-recorded-in-2017-were-committed-by-persons-known-to-the-victim-2355681.html>accessed 7 July 2021
[2] Harikishan Sharma ‘32 percent conviction rate in rape cases: NCRB’ The Indian Express (New Delhi, 4 December 2019) <https://indianexpress.com/article/india/32-per-cent-conviction-rate-in-rape-cases-ncrb-6149331/> accessed 7 July 2021
[3] Mahmood Farooqui v State (Govt. of NCT Delhi) 2018 Cri LJ 3457
[4] George Masih alias Billa v State of Punjab 1983 Cur LJ 248
[5] State of Assam v Shri Gobinda Chandra Das (1986) 1 Gau LR 332
[6] Thankappan P.K. v State of Kerala Rep. by Deputy Superintendent of Police, Represented by Public Prosecutor, High Court of Kerala 2021 Cri LJ (NOC 287) 89 [15]
