Communication of Consent in Rape Cases
Written By: Aditi, Student, Amity Law School, Amity University, Patna
Consent is at the centre of the definition of rape in most jurisdictions, India included. However, there exists a lacuna in law with respect to the communication of consent to make assent and dissent to engage in sexual activity clear to prevent the occurrence of rape. This paper attempts to identify the various kinds of consent, the models for communication of consent and analyses the definition of consent in several jurisdictions while lamenting the lack of literature on the communication of consent and urging for the affirmative model to be applied and upheld as the correct parameter for communication of consent in Indian jurisprudence.
More than 32,500 cases of rape were registered with the police in 2017 in India, bringing the total to about 90 a day. A woman reported a rape case every 15-minutes in 2018. Every 4th victim was a minor while more than 50% of the cases fell within category of 18 to 30 years. This brings us to the consent standard in Indian rape law under Section 375 and Section 90, which is a product of a society that makes women the guardians of morality (assigned the role of gatekeeper to allow or disallow sex) and exempts men of responsibility for their sexual behavior, who are treated as initiators.
Because the existing standard does not require men to seek affirmative consent, it creates greater room for ambiguity and imposes an inordinate burden on women as courts engage in subjective scrutiny of women’s gestures, actions, and words. Here, the role of various social or behavioral conventions comes into play to establish whether women’s conduct or demeanor has manifested in a manner to show a willingness to have sex. Admittedly, these conventions are often not universally understood which is why ambiguity in women’s sexual behavior often leads to miscommunication of consent thereby leading to unsolicited sexual advances and rape.
Further, it is assumed that a man’s sexual pleasure is primary and a woman’s sexual experience is secondary. In our society rape culture is often normalized due to social attitude towards assault. Thereby, making it very easy for the perpetrators to commit such an act. Victim blaming and normalizing of sexual harassment often trivializes the importance of consent.
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (I.C.T.Y.) since 1991 in Prosecutor v. Kunarac, Kovač and Vuković, summarized the International Law on the subject of consent in rape by noting that:
“The basic principle is that serious violations of sexual autonomy are to be penalized. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant. In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist...coercion, force, or threat of force [are] not to be interpreted narrowly... coercion in particular would encompass most conduct which negates consent...In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”
This paper highlights the need for clear parameters for communication of consent by analysing the various types of consent during sexual intercourse; does a juridical analysis of such parameters in different Countries and lays emphasis on the lack of literature on the subject in the Indian Jurisprudence. The paper concludes with substantiating that the affirmative consent model is best suited to India, urging for clear parameters on communication of consent.
II. Concept of Consent- The Different Kinds of Consent
a) Affirmative Consent
Under an affirmative standard of consent, the man is mandated to seek consent at each point of the sexual encounter to ensure by words or actions that there exists express agreement before engaging in sexual contact, thereby increasing the sexual responsibility of men, shifting the focus from extraneous factors such as the victim’s conduct to the responsibility of the man to seek affirmative consent. In affirmative consent for sexual intercourse to ensue, both parties must express consent through “clear and unambiguous words or actions.” The affirmative standard leads to “the acknowledgment of specific, rather than generalized consent that would prompt courts to engage in a more explicit dialogue attempting to articulate and define such distinctions.” An affirmative consent standard in this context protects women from unwanted sex by reducing the room for ambiguity in sexual encounters whereas the “no means no standard” is susceptible to the facilitation of rape culture. This standard curtails women’s victimization by shifting the burden to the defence to prove that steps were taken to obtain consent, obligating men to be sure that their partner consents to the intended sexual activity.
The affirmative standard should be adopted to avoid the sometimes impossible task of distinguishing between “frozen fright: (an inability to resist) or “passive grant of permission”. More importantly, such a standard should be adopted to relieve women of the burden of responding in a particular fashion. In terms of degree, an affirmative standard is preferable because it requires a conversation before engaging in sexual acts, making communication clear, and renders sexual encounters less likely to be misinterpreted. It reduces subjectivity by at least placing the objective responsibility on men to actively seek consent, the presence of consent not being presumed under this standard, instead there exists a burden to prove whether it was obtained. This standard also stresses that a party who is under the influence of alcohol, impaired by drugs or incapacitated by sleep or unconsciousness, is incapable of giving assent. The purpose of such a standard is to grant women the right to determine whether they wish to allow a “particular act of sex on that particular occasion with that particular man.”
b) Ostensible Consent
Term “ostensible consent” is used to refer generally to a situation where in sexual activity was understood by the parties involved to be consensual when it occurred. Assertions of sexual assault or violation of sexual autonomy occur when consent is withdrawn retroactively. The concept of ostensible consent attempts to identify the boundary between a personal “negative” sexual experience and the law’s portrayal of sexual assault, citing sexual interactions between HIV positive individuals and transgender persons as an example of such consent.
c) Attitudinal or Performative Consent
Consent can be attitudinal or performative. “Attitudinal” accounts as a mental state of willingness whereas “performative” accounts as certain actions like communicating yes or nodding, based on the premise that valid consent requires communication. It is quintessential for us to reject performative actions over attitudinal actions as the former are more expressive and do not adhere to the normative standards of implied communication of consent. Gone are the days when traditional patriarchal thought wherein a woman’s lack of resistance could be asserted as her consenting to sex.
III. Inadequacy of literature
There have been various changes both at the societal as well as the statutory level to lay down the essentials that constitute the offense of rape as well as the evidentiary requirements to establish the same. Traditionally the most basic definition of rape is “forced sexual intercourse with a woman without her consent.” Merriam Webster dictionary defines rape as “unlawful sexual activity…carried out forcibly or under threat of injury against a person’s will or with a person incapable of valid consent”. However, there is not much literature available to lay down clear parameters of how this consent must be communicated to establish the real intent. The issue arises when a disjunctive understanding between two parties regarding sexual behavior gives rise to problematic interpretation thereby, causing what was meant to be consensual intercourse to be forced sexual assault. Many researchers, activists, and feminists have sought conceptualization of communication of consent during rape. However, there is not much clarity concerning the parameters laid down to establish when consent or dissent has been communicated properly to the accused by the victim. The judgment was widely castigated for being a supporter of rape culture as the burden of proving the communication of consent was shifted to the victim as opposed to the principles laid down in the landmark Mathura rape case.
IV. Judicial Intervention in the Communication of Consent- International Law on the Subject
a) Committee on Elimination of Discrimination against Women
The Committee on the Elimination of all Forms of Discrimination Against Women (CEDAW)- a UN oversight and monitoring body on women’s rights-similarly endorsed a definition of affirmative consent in Vertido v. The Philippines, reasoning that the affirmative standard minimizes further victimization of the survivor in rape trials. In the case, the Committee observed:
A myth and stereotype identified by the [victim] is that when a rape victim reacts to the assault by resisting the attack and also by cowering in submission because of fear, it is problematic. The author submits that, contrary to the ruling issued by Judge Hofileña-Europa, there is no testimony indicating that she actually cowered in submission. She alleges that, on the contrary, she resisted as much as she could and that although there were moments when she dissociated, this did not negate her many verbal and physical expressions of lack of consent. The Committee stressed “that there should be no assumption in law or in practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use or used physical violence” and noted that the definition of rape in Philippines’’ law, lacked consent as an essential element, recommending a review of the definition of rape in the legislation so as to place the lack of consent at its centre.
b) European Court of Human Rights
The ECtHR in M.C. v. Bulgaria stated that Member States have a positive obligation to “penalize any sexual act committed against non-consenting persons, even if they do not show signs of resistance.” It further stated that, the investigation and its conclusions must be centered on the issue of non-consent.
The ECtHR went on to note the state of consent in rape in the national law of several European countries, stating about Belgium that prosecution has to prove two things-sexual penetration and lack of consent. It will have to do so by taking into account at least “one of the factors “nullifying consent”, set out in Article 375- violence, coercion, ruse or disability.” It further stated that lack of consent is proved where there is proof of physical resistance. However, even in absence of physical violence or resistance, proof of coercion is sufficient.
On Denmark, it noted that evidence of lack of consent is most important in cases where the accused and victim are known to each other. Proving that “no” was said and understood would be difficult even though the act of saying “no” would be a sufficient expression of lack of consent.
On Ireland, the Court observed that the principle that the prosecution must prove not the presence of force but absence of consent is well-established. However, consent has not been statutorily defined in Irish law . The central Irish authority on consent is The People (DPP) v. C, where Justice Murray described consent as “voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the requisite mental capacity. Knowledge or understanding of facts material to the act being consented to is necessary for the consent to be voluntary or constitute acquiescence.”
In United Kingdom, the Court found that prior to 1976, the common law definition of rape was unlawful sexual intercourse with a woman without her consent through use of force, fear or fraud. Historically, as proof of force and resistance was injury to the body. However, post-1976, under the current law, the prosecution has to prove that the victim did not consent.
Absence of consent is the key element of the actus reus. There is no statutory definition of consent or lack of it. ‘Does not consent’ is a question of fact for the jury, which it decides after hearing the judge’s directions. The prosecution must also prove the mens rea of rape, which is either knowledge that the victim does not consent or recklessness as to whether she consents or not. The perpetrator is reckless where he “never gave it a thought”, or was aware that the other person “might not be consenting but goes on just the same.”
In a leading case, R v Olugboja. Lord Justice Dunn on the definition of consent said, that there exists a difference between consent and submission; “every consent involves a submission, but it by no means follows that a mere submission involves consent.”
c) United States of America
“In thirty-seven States, non-consensual intercourse without extrinsic force is expressly criminalized by statute as a felony, a sexual crime of the highest order, or a misdemeanor.” Although it appears from the language of the remaining thirteen State codes that extrinsic force may be required, courts in twelve states have accepted, for example, that the statutory force requirement was met when the defendant only pushed or pinned his victim down or otherwise physically manipulated her. The test for “force” was found to be “whether the act was against the will of [the victim].”
Rape in Pennsylvania requires both an absence of consent and presence of physical force. Wisconsin, defines consent as “words or overt actions.., indicating a freely given agreement to have sexual intercourse or sexual contact.” Washington’s rape statute defines consent as “consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse.” Whereas, some States such as New York and California have passed legislations to make affirmative consent standard, a statewide law.
The New Jersey Supreme Court in the case of In the Interest of M.T.S. reversed the appellate court in a finding viewed as one of the most controversial statements of rape law in the United States. The court held that:
Any act of sexual penetration...without the affirmative and freely given permission of the victim...constitutes the offence of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of ‘physical force’ is satisfied under N.J.S.A. 2C:12-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely given permission to the act of sexual penetration. Of importance in this case is the definition of consent that the Court uses in its opinion. In order for an encounter to be consensual, the consent must be “affirmative and freely given.” The Court defined more precisely what they meant by such consent- “Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words.”
In a North Dakota Supreme Court case, State v. Vantreece, the court found that the defendant was not guilty of sexual assault because the prosecution could not prove that he compelled the victim to engage in sexual intercourse with him through force. The court held that even though the defendant’s conduct was “reprehensible” as he engaged in non-consensual intercourse with a vulnerable victim but because there was not enough evidence of force, the rape conviction could not stand. This case is problematic and exhibits how American rape laws do not adequately protect victims. Courts should rely on the consent standard and not the force standard. To overcome rape law’s failure to criminalize non- consensual sex without the element of force is to characterize a lesser offence which doesn’t require force for it to have been committed. For instance, in Vermont, “a person who engages in a sexual act with another person and compels the other person to participate in a sexual act without the consent of the other person” is guilty of sexual assault. In Iowa, a “sex act” constitutes sexual abuse in the third degree when “the act is done by force or against the will of the other participant.”
Applying the jurisdiction’s affirmative standard, the court stressed in State v. Lederer that actions of the prosecutrix could hardly be said to be manifestations of freely-given consent when viewed together with the threat of worse things on non-compliance, issued by the defendant. In cases like this, where the victim has expressed her non-consent, it is important to notice that any definition of consent-affirmative or otherwise “would render the conduct unlawful.”
In 1992, Canada codified their affirmative consent standard under Section 273.1 of the Criminal Code 1992, requiring consent to be “the voluntary agreement of the complainant to engage in the sexual activity in question”. Subsequent Canadian cases developed jurisprudence surrounding rape laws further. R v. Ewanchuk is the leading Canadian Supreme Court authority, which confirms that “only yes means yes” and silence is not a symptom of consent. 75 Additionally, the Court held that consent was to be determined from the subjective position of the victim/survivor.
V. Indian Jurisprudence on Consent
The India Penal Code states that rape constitutes a man having sexual intercourse with a woman “without her consent” amongst 7 other kinds of acts which would amount to rape. Explanation 2 appended to this provision defines “consent” as an “unequivocal voluntary agreement through words, gestured or any form of verbal or non-verbal communication,” which conveys a willingness to participate in “the specific sexual act.” It also clarifies in a proviso that “a woman who does not physically resist the act of penetration shall not by reason of that fact, be regarded as a consenting party to the sexual activity.”
In Mahmood Farooqui v. State [Govt of NCT of Delhi], decided on September 25, 2017 the accused who was convicted u/s 376(1) IPC vide judgment dated 30.07.2016 passed in Sessions Case No.118/15 (New SC No.1590/2016) was exonerated. This judgment is a landmark because it laid down the importance of communication of consent during rape cases. Farooqui was charged with the rape of 35- year old researcher from USA who was visiting India on the Fulbright Exchange Fellowship. The accused performed oral sex on the victim despite her silent protests. The Delhi High Court held that the history of intimacy, unabashed affection/attraction towards each other and feigning of orgasm at the time of the commission of offence could have been misunderstood to be non-verbal communication of consent. It was held that if one partner is hesitant then such “feeble hesitation can never be understood as a positive negation of any advances by the other partner”. The widely quoted judgment i.e. “instances of woman behavior are not unknown that a feeble no may mean a yes” was severely castigated by the media. The court explained that when the parties have had a physical relationship in the past then it would be really difficult to decipher whether little or no resistance and a feeble “no” was a denial of consent. The fact that there is no active denial and no communication of fear by the victim was duly taken note of. The whole controversy boiled down to one question- “whether there was communication of consent during the ordeal or not?” Court held that in all situations, the affirmative model of “yes” and “no” doesn’t function. In certain cases, there can be an affirmative consent or a positive denial which may remain dormant, thereby, confusing the mind of the other. It was observed by the Apex Court that there is a difference in the communication of sexual consent when it comes to both genders as the “normal construct” is that the man is the initiator of sexual intercourse and woman’s part is largely non-verbal. It was found that thus, gender relations also influence sexual consent. However, the Court noted that “in today’s modern world with equality being the buzzword, such may not be the situation.”
It was established that on the basis of the accused drunken state and from the facts that he didn’t possess the correct cognitive perception to understand the exact import of any communication by the other person. Thus, the benefit of the doubt was given to the accused thereby, exonerating him.
The Supreme Court has repeatedly and as recently as 2019, held that consent when the question of interpretation of Section 375, arises, it begs an active understanding of the circumstances, actions and consequences of the proposed act. “An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action.”
Further, in Dhruvaram Sonar the Supreme Court observed:
Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. This was re-iterated in Kaini Rajan v State of Kerala, where the Supreme Court held that:
Consent for the purposes of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.
Women’s sexual consent is often understood as the absence of refusal or resistance. Most women’s appearance, attire, prior sexual history and relationship with the man in question are often considered as a few parameters to assess whether consent should be considered relevant or necessary to adjudicate if the particular instance in question can be termed as sexual harassment or not. Recent positive amendments in the criminal jurisprudence have discredited such obnoxious notions by denying placing any importance on such parameters. The proviso to Explanation 2 of Section 375 explicitly states 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”. To conclude, there should be an overhaul in Indian jurisprudence to comply with the affirmative consent standard as it would allow the focus to rightfully shift from the conduct of the prosecuting witness signifying non-consent to the efforts made by the accused to seek consent.
It safeguards against excusing rapists due to miscommunication by making communication clearer and ensures that that the absence of a “no” is not interpreted as a “yes.” It is appalling that the concept of rape or sexual assault is fundamentally dependent on “consent” and yet there is limited literature and data available be it verbose legislations or judicial precedents to conceptualize sexual consent. Thus, the need of the hour is to law down clear parameters for “communication of consent” and let the judges interpret the facts of each case to adjudicate on the culpability of the accused based on the adequacy or inadequacy of such communication.
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