Deliberation on consent as required under section 375 of Indian Penal Code, 1860
Consent may appear very easy to comprehend but slightest of misunderstanding, or poor communication, or uninformed comprehension of consent towards sexual activity, may make a man to face / fight charges of Rape. The term consent is characterized under section 375 of Indian Penal Code, 1860 to possess certain qualities - unequivocal, voluntary, willingness and must be communicated. The code further provides that a woman who does not physically resist to specific sexual act, shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

The courts in India, with passage of time and after witnessing a huge number of cases involving charges of rape, have swayed their focus from 'Against her will' to 'without her consent'. Consent for every move, while being engaged in sexual activity, is required to be proved, to successfully claim defence of consented sexual act in rape cases. If you have had wilful and consensual relations with a woman and have been together for long; even in those cases a need for consent, before indulging in any sexual activity, is required each time and for every move.

The Hon'ble Supreme Court in the case titled 'State of Punjab vs. Gurmeet Singh' cited at (1996) 2 SCC 384 had raised a question with respect to the evidence of a victim of sexual assault, that 'Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?'. Thereafter, the Court had observed that corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

With such position of law and considering rise in malicious proceedings in relation with rape / sexual assault instituted out of anger, to settle scores or unsuccessful relations etc., what should be the way out? Whether a trial to disprove a false charge, the only remedy? Can a consent be recorded? How to ascertain consent?

The definition and meaning of Consent have travelled a long journey. Following are few observations / meanings of consent, transpired from judicial dicta:
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side.

There does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent'".

The "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act.

That consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.

Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act.

A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

Consent has to be categorical, unequivocal, voluntary and could be given by words, gestures or any form of verbal or non-verbal communication signifying willingness to participate in a specific sexual act.

Can such specific qualification for adjudicating assent to consent hamper rights of a person maliciously accused? How difficult is it for a person, who is a victim of a Honey-Trap or has been maliciously subjected to false charges of Rape, to prove that the sexual act was preceded by communication of an unequivocal and voluntary consent? What if a duly qualified consent is reconsidered by a woman after the sexual act is complete and then stated to be without deliberation or without consent?

It is worth considering that the guilt as well as the innocence borne in the minds of individuals indulging in an activity, within four walls, if is to be presumed merely upon statements made - are the both not equally maintainable? As witnessed, statement of a person claiming to be a victim of Rape, may lead to an immediate arrest or at least registration of an FIR against the accused. Will a statement of the person maliciously accused, who denies the allegations, be sufficient to get benefit of bail? Do courts weigh the statements of a person claiming to be a victim of Rape and the replies of the accused to incriminating material as recorded in his statement under section 313 of the Code of Criminal Procedure, 1973 equally?

We cannot lose sight of cases where a de facto complainant states about not resisting to the sexual act or not raising alarms or citing strength of the person accused as a factor because she did not want to get hurt. Furthermore, there are cases where the extent of non-resistance is to an extent, that the person claiming to be victims of rape have pretended orgasm in order to avoid any physical harm or end a traumatic encounter. Considering the aforementioned scenario, is it even possible for the person accused of an offence of rape to gauge extent of consent?

It is extremely difficult to dwell upon questions in relation to whether or not there was consent, Whether the person accused mistakenly accepted an act of the woman as consent, Is there a mechanism to assess the extent of the consent while the cognitive functioning is facing release of Adrenaline, dopamine, and oxytocin, Whether feelings / actions / or inactions of a woman towards the person accused of rape be considered communication of consent?

To successfully establish defense of consented sexual act, the person accused is not only expected to prove grant of consent by the woman / girl towards the sexual activity. The accused is required to establish subsistence of consent at every point in time and for every move. No specific test can be laid down to weigh the extent of consent in rape cases. The truth of the matter is only known to the persons involved in the sexual act but unfortunately, both the persons advance their own versions.

In answer to above questions, it is necessary to note what the term 'consent' may mean in normal parlance. Consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats, as observed in catena of judgments. A very essential element of consent is that it could be revoked at any time and at any moment.

Judicial precedents and publications / art work have circulated and suggested various methods / models of sexual consent. The most accepted model would be an Affirmative Model - To consider 'Yes as Yes' and 'No as No'. Courts have further opined upon the difficulty to accept this model universally, considering that an affirmative consent, or a positive denial, by a woman may remain underlying/dormant which could lead to confusion in the mind of the other.

The Hon'ble High Court of Delhi in 2017 while adjudicating an Appeal against Order of Conviction noted about certain studies wherein it was observed that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. In light of the afore mentioned it is important to be mindful of cases where even if the act was not with consent, she actually communicated something which was taken as a consent by another person.

Communication of Consent to a sexual activity may be inferred from several actions or inactions but the same may differ in each case depending upon several factors including relation between the parties, decision making capacity, ability to express opinion, nature & method of communication, etc. Whether conviction in a case where the unwillingness of a prosecutrix was only in her own mind and heart but never communicated, or communicated something different to the accused person, is maintainable? There can be instances where one of the partners may be hesitant or less willing but can such feeble hesitation be understood as a positive negation to advances by the other partner?

If a party indulging in sexual activity is a conservative person and has not been exposed to modernity, mere reluctance may amount to negation of consent. The same may not be the scenario when two intellectually and academically proficient known persons, who in the past, have been into physical contacts. In such cases little or no resistance and a feeble 'NO' may not be an actual denial of consent.

Further the interplay of willingness and consent is also essential. A woman who may be willing to indulge into a sexual act, by her will itself, does not communicate her consent. And a consent for a sexual act does not necessarily mean willingness. There can be a valid consent even if unwillingly given.

It is worth considering and thought provoking, whether consent to an act is a consent to its natural and probable consequences too?

Written By: Sahil Modi