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While denying bail to a rape accused the Himachal Pradesh HC commented that a lack of struggle by the survivor is NOT consent, only ‘unequivocal voluntary agreement’ is.
Recently, Justice Anoop Chitkara of the Himachal Pradesh High Court denied bail to a man accused of raping a 17-year-old girl. “No does not mean yes, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word NO doesn’t need any further explanation or justification,” stated the Judge.
A lot has been said over the past few years about the importance of consent with regard to physical intimacy or even physical touch. Even though awareness has been created by these conversations,, archaic social conditioning, created by repulsive beliefs like “Ladki ki a main hi haan chupi hain” (a girl’s no, has a yes hidden in it) is still alive and well, supported actively by pop culture in the country. We still do not understand that there is no such thing as non-consensual sex, – it is rape. Period.
On 17th December 2020, the accused Suresh Kumar allegedly offered to drop the survivor, who was a ‘friend’, home. On the way, he started touching her inappropriately, to which the girl objected. Despite the clear NO, he did not stop his advances, and allegedly raped her.
The accused’s legal counsel has argued that since the survivor was known to the accused and had admitted that he was a friend, the act of sexual intercourse occurred with the consent of the survivor. The Court did not accept the argument, and countered that the fact that she had voluntarily informed her mother about the incident shows the genuineness of the charges she had levelled. That if the act had occurred with her consent, she would have chosen to keep it discreet as reported here.
The accused has been charged for rape under the Indian Penal Code and offences under the Protection of Children from Sexual Offences (POCSO) Act.
In the present case, the accused attempted at turning the case in his favour as there was a lack of physical struggle or protest from the survivor. The court has rightly stated that this could have been because the survivor was intimidated into cooperating with the accused as reported here.
This statement comes as a welcome change. Courts in India have usually taken a misogynistic stand in the event of lack of protest from the survivor by simply construing it as consent by the victim. This has only led to the blame being shifted from the accused to the victim as reported here.
The Criminal Law Amendment Act, 2013 has a definition of consent under Section 375 of the Indian Penal Code, which specified consent as an “unequivocal voluntary agreement” and also clarifies that a woman’s silence or absence of a “NO” cannot be construed as consent as stated here.
Though the law is clear that unless the consent is expressed by the woman through action or words it cannot be construed as a yes, the understanding in society is far from that. The lack of a no from a woman is construed as a yes by men. As explained here, this is passive consent which is conveniently treated as a yes by men, since the woman hasn’t said a no. But this is an act of violation and sexual intercourse which happens in such a scenario is rape.
The court observed in the present case that “when the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again”.
It is ironic that in the world’s second-most populous nation, sex education as a part of the school curriculum for adolescents has been vehemently opposed over the years. This has led to detrimental consequences for the society at large. Children should be taught the meaning of consent from a young age as stated here.
With the vast amount of content that gadgets provide access to, the need to provide children sex education is all the more important in today’s times as stated here
Initiating discussion and encouraging sex education will help in removing the taboo tag associated with it. A well-informed generation that steps out into the world knowing the facts of their bodily needs’ functions and personal boundaries, would be less susceptible to regressive tropes like “a woman’s silence amounts to yes.” We can hope for a change, only when we take the first steps toward it.
Image source: a still from the film Pink
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