Traditionally, the law defines the crime of rape to be an act of sexual intercourse accomplished by a man with a woman, not his wife, by force and against her will. Section 375 of the Indian Penal Code deals with the offence of rape. Clause 2 of section 375 outlines rape- without the consent of the woman, in instances when the essence of the rape is the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the woman. The principle behind consent is that man is the best judge of his or her own interest, and that no man will consent to what he or she considers injurious to his or her own interest, and that if a man or woman decided to suffer harm voluntarily, he or she cannot complain of it when it comes about. The key issue here is that to absolve a person from criminal liability, consent must be given freely, and it must not be obtained by fraud or by mistake or under a misconception of a fact. The language of autonomy is sometimes used to explain the role of consent. The principle of autonomy involves a claim that individuals should be allowed to make decisions for them and that those decisions should be respected by others, including the law, unless the decision involves harming another.
Joseph Raz defines it in this way: “The ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives”
Illustration: There is a clear distinction between consent and “no consent”. Where A does nothing in response to B’s proposal: A does not consent; A is doing nothing. A “nothing” cannot affect a change in moral position. It cannot provide B with a justification for committing a prima facie wrong. B cannot infer from nothing that the victim has made any assessment of any kind. He might make guesses, but they do not provide him with a reason for determining the act is in the victim’s best interests.
Consent Obtained by Fraud, mistake or misconception of a fact
Explanation 2 appended to section 375 of the Indian Penal Code defines consent as “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”. A review of some English, Canadian and Australian cases would reveal that the conflicting decisions have been given by the courts on times by applying common law principles and statutory provisions given on the subject. In the case of Queen v. Flattery, the accused was charged with rape upon Lavina Thompson, a 19-year-old girl on 4th November 1876. The girl, who was in ill health and subject to fits, visited the accused’s clinic along with her mother for some medical advice. The accused after examining the girl, advised her to have a surgical operation, to which she consented, and under pretence of performing it, had sexual intercourse with her. It was held, the girl’s consent would not excuse the accused from conviction, as her consent was for the surgery only and he was held liable for the offence of rape.
Similarly, in the case of William, the accused was a choirmaster, he has sexual intercourse with a prosecutrix making her believe that he is performing a surgical operation to improve her singing voice, he was held guilty of rape. In another case, R. v. Linekar, the accused has procured a woman, a part-time prostitute to have sexual intercourse with him by, promising to pay her 25 pounds, he never intended to pay her, he was acquitted of the charge of rape on the ground that the prostitute consented to the sexual intercourse. The fact of consent cannot be destroyed by being induced by the appellant’spretence that his intention was to pay the agreed price.
Further, in the case of Director of Public Prosecutor v. Morgan, the House of Lords by a majority of 3 to 2 held that in a case of rape a person cannot be convicted if he acts under a mistaken belief that the woman was consenting which she probably was not. The appellant was a senior member of the Air force and the three appellants were younger junior members. On the night of the offence, Morgan invited the three men to his home to have intercourse with his wife, the prosecutrix. The young men, who were complete strangers to Mrs. Morgan, were at first reluctant but were persuaded by Morgan’s invitation and he provided them with contraceptives. Morgan told them that his wife may resist but to not take her seriously. Mrs. Morgan was awakened from her sleep and her husband and the men dragged her into another room and she struggles and screamed to call her son to call the police, but one of the men shut her mouth, they all had sexual intercourse with while she struggled after which she drove to the hospital and complained that she has been raped. The three men were charged with rape and Morgan for aiding and abetting rape and the accused advanced the defence of consent and any element of resistance on her part was a plaything.
Rape statutes use the phrases “by force” and “against her will” and “without her consent” sometimes synonymously and sometimes as distinct elements, a practice that has generated a great deal of confusion. Although courts have become more liberal in finding the amount of force necessary to satisfy that element, the force continues to be important as an indicator of consent. Nonetheless, the fictions and artificial distinctions necessary to satisfy the requirements of both force and non-consent in certain situations have led some commentators to suggest that force be dropped as a separate element. Others, arguing that the law should focus on the behaviour of the assailant rather than on his victim’s response, have effectively proposed that force should be the only element in addition to intercourse.
Although the phrases “without her consent” and “against her will” do inevitably focus attention on the complainant’s behaviour, they suggest subtly different meanings. While the first implies only that the victim withheld active approval or expressed non-consent, the second connotes active resistance. This difference in emphasis has led some courts to consider resistance as a distinct element of the crime, in addition to force and non-consent, with harsh results for the prosecution. Indeed, one commentator has gone so far as to propose a statute that would define rape solely in terms of a resistance standard,in part to permit the formulation of an objective standard for rape trials. It is key in today’s world to think about the role of consent in all activities and in one involving vulnerability from another person.
“The views of the authors are personal“
Frequently Asked Questions
When can a person not give consent?
Consent is given by someone who cannot give proper consent. Someone unconscious, too drunk or has been drugged, for example, by a date rape drug, cannot consciously agree to a sexual activity.
What does lack of consent mean?
A person who does not respond to attempts to engage in sexual activity, even if they do not verbally say no or resist physically, is not agreeing to sexual activity. Incapacitation: Alcohol consumption or use of other drugs can render a person incapable of giving consent.
What is valid consent?
For consent to be valid, it must be given voluntarily and freely, without pressure or undue influence, by an appropriately informed person who has the capacity to consent to the intervention in question.
- The Indian Penal Code, K.D. Gaur, fourth Edition, Universal Law Publishing Co.
- Criminal Law, PSA Pillai, 11th Edition, Lexis Nexis
- Cecil Turner.J. (2013), Kenny’s Outlines of Criminal Law, Cambridge: Cambridge University Press
- Textbook of Criminal Law, Glanville Williams, fourth Edition, Sweet & Maxwell South Asian Edition
- Queen v. Flattery 1877 QBD 410
- William (1923) 1 KB 240 (CCA)
- R. v. Linekar 1955 3 All ER 69 (CA)
- Director of Public Prosecutor v. Morgan (1975) 2 All ER 347 (HL)