AN ANALYSIS OF CONSENT IN THE CONTEXT OF RAPE UNDER IPC

AN ANALYSIS OF CONSENT IN THE CONTEXT OF RAPE UNDER THE INDIAN PENAL CODE 1860.

ATIN KUMAR DAS,III SEMESTER, NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

Introduction

This is on of the most grossly inhuman act which violates a womans body and completely strips away her dignity and her self respect. It completely destroys her life and may lead to life long emotional scarring in addition to the initial trauma. The situation is much worse for an Indian women , as just the fact that she has been raped will earn her , not the sympathy rather the ridicule of the society , it destroys all her hopes of being rehabilitated , and taints her and makes future relationships a virtual impossibility. Thus it can be said that rape of a women will lead to a future which may seem worse than death.

Unfortunately , despite all these considerations , the number of rapes is on the increase in our country and many criminals are indulging in this to satisfy their carnal desire while completely disregarding the effect of their act on the victims. This crime is detrimental to the society and its increase is an indication of the degradation of our value system. It has always been recognized as a crime and can be classified as a mala in se , i.e. a crime which is wrong by itself and which has been designated so by the society .

The essential element which distinguishes rape from normal sexual intercourse is the absence of consent of one person which is normally the women , being the weaker sex. Therefore in order to study rape and also to punish the wrongdoer comprehensively , we need to understand what is meant by consent and what will constitute the lack of it so that the victim gets the necessary recourse and the criminal is punished . In the project there is an effort to understand the meaning of consent and the statutes dealing with it under Indian Penal law.

Definition Of Rape

Section 375 of the Indian Penal Code deals with rape :-

375. Rape A man is said to commit rape who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

First Against her will

Second Without her consent

Thirdly With her consent when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly With her consent when the man knows that he is not her husband , and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly With her consent when at the time of giving her consent , by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance , she is unable to understand the nature and consequences of that to which she gives consent .

Sixthly With or without her consent when she is under sixteen years of age.

From the above given section , we can make out some main features of this crime , which are :-

Sexual Intercourse[1]:

Under this the penetration maybe partial or full , vaginal or vulval , it will constitute the act of sexual intercourse[2] . In the case of State of Kerala v.Kunumkara Govindam[3] the Kerala High Court went a step further and said that even forcibly pushing the sexual organ between the thighs constitutes penetration and rape can be proved on this basis , however this seems to be a far fetched view .

On the other hand in the case of Prithvi Chand v. State of Himachal Pradesh[4]: A young but healthy and robust boy of 18 years raped a girl of 11 years . The prosecutrix had gone to take bath with her two younger sisters , while she was coming back the accused met her on the way and asked her to permit him to have sexual intercourse with her . She resented this behaviour and with a view of avoiding him , changed her route , then the accused offered her money to have sex with her. When she again refused , he physically lifted her and carried her to a shallow place where he had forcible intercourse with her , due to which she started bleeding profusely . She came back to the house and narrated the even to her mother , The next morning the prosecutrix , her parents and the sarpanch of the village filed an FIR . Upon the medical examination it was found that the vagina admitted oone finger and that too with difficulty .therefore it was contended that no penetration took place , but the court rejected it by saying that unless there was no penetration , there would not be so much bleeding and a wound in the vagina. Hence the accused was convicted for the rape of the prosecutrix.

It has to be noted that to constitute rape the hymen need not be ruptured , even if part of the male organ goes inside the labium of the pudendum of the woman[5]. A most illustrative case in this regard would be:

Madan Gopal v. Naval[6]: In this case one medical doctor Naval raped Tulna , a school going girl . The respondent completely stripped off himself and also removed the victims clothes , and asked her to fellatio. Thereafter the respondent cuddled and pinned her and slightly inserted his penis into her vulva. Within a few seconds he ejaculated and freed the girl from his clutches. The victim later informed her parents about the event and on being tackled by them , Naval confessed doing it. Being a doctor , he said , he cannot rupture hymen.

Rape is a crime and therefore it has an actus reus. The actus reus in this crime is the act of sexual intercourse without the consent of the woman . Therefore if the woman has consented to this act then under no circumstances can it be termed as rape.

In the case of State of Karnataka v. Sureshbabu[7] rape could not be proved . It is an interesting case in the sense that both the girl and the boy knew each other. The girl voluntarily went with the accused for sightseeing and stayed with him at different places for about 10 days. At Hubli they stayed at a lodge where the girl complained that the boy did something to her by force which he ought not to have done. However they stayed together for 2-3 days having sex. From there they went to Bangalore where the boy cheated her of some jewellery and went away. Meanwhile acting on the girls father , the police found the girl and a medical examination established that she was having sexual intercourse all these days. The main contention in the case was that the girl was under sixteen years of age , but since this fact could not be established the court decided that no offence of rape was committed

The element of mens rea has not been expressly included in the statute regarding rape in India or England . This has been the cause of a heated debate where some people are in favour of taking account of the mental state of the accused whereas the others believe that it is immaterial in proving rape.

The question was vehemently raised in DPP v. Morgan[8]: In the case the husband a RAF commandant managed to convince three of his junior officers that they should have sexual intercourse with his wife. He also managed to convince them that even if she protested , it would be play acting. Accordingly the accused went to the house and dragged the victim out of the bed where she was sleeping with her son. When she was being dragged off , she told her son to call the police but the accused did not stop and proceeded to rape her. Afterward she contended that she had not consented to the act hence it was a rape

The question before the jury [9]was whether the accuseds honest belief that the woman had consented make them not guilty of rape. Unfortunately the court of appeal acquitted the accused as it said that their honest belief that the woman had consented makes them innocent.

In the researchers opinion , though mens rea has not been explicitly included in the staute , it is included in the section which deals with the absence of consent , because in the absence of consent it is difficult not to recognize the distress of the woman so if the other person persists even knowing that , it automatically proves mens rea on his part .The only exception to this rule can be if it can be reasonably proved that he was under the misconception that the woman is a willing party. This is not synonymous with honest belief but depends on circumstances which may seem exceptional to a reasonable man.

Amendments in Rape Law

One of the major reason , many actions regarding rape fail in the courts is because the victims fail to prove that there was a lack of consent . This is because in this case , more often than not , it is only the victim and the accused that are in a position to know whether there was consent or not . And therefore proving the same becomes doubly difficult for the prosecutrix. Even in Indian penal law , the situation was rather biased against the victim and provided vast scope for the victim to get off over mere technicalities .

An illustration of this can be the case of Pratap Mishra v. State of Orissa[10]: In this case, a lady who was five months pregnant and was staying at a guest house with her husband was raped by three persons one after the other . Though the trial court and the High Court convicted the accused , on appeal the Supreme Court reversed this decision and acquitted the accused because the court felt that the woman had consented to sexual intercourse . It felt that the medical evidence was contradictory ,because it was the opinion of the medical experts that if three persons had indeed had forcible sexual intercourse with the prosecutrix , there would be immediate abortion and not after a few days as in this case. This led the court to believe that the woman had not resisted during the act and thus she had given her consent. Apparently the court did not suppose that her pregnancy was the only reason the woman had not struggled physically.

These anomalies have always provided the culprits with a way out , this was made painfully evident in the case of Tukaram v. State of Mahrashtra[11], popularly known as the Mathura rape case. The facts of the case are as follows:-

Mathura and her brother Gama worked as labourers . Mathura came in contact with one Ashoka and they decided to become husband and wife . Mathura left the house with Ashok and Gama lodged a complaint at a police station that Mathura was kidnapped by Ashok , his uncle and niece. Whereupon all these persons along with Mathura were brought to police station. The statement of Mathura and Gama was recorded and the problem solved , and as they were leaving , one Ganpat a constable asked Mathura to stay back. The directions were complied with. Thereafter Ganpat took her to a latrine and lowered her undergarment , then he dragged her to a charpai and raped her despite stif resistance and protest from her. After that another constable, Tukaram came and wanted to rape her but couldnt do so because he was heavily drunk. Ashok and Gama who were waiting for Mathura got suspicious and went to the backside of the police station. After some shouting Tukaram came and told them that Mathura had left but after sometime she herself emerged and told them that she had been raped by Ganpat.The prosecutors wanted the court to convict the accused of rape on the basis of clause thirdly of section 375 which disregards any consent given when given in fear of hurt or death to her or any person she is interested in. The sessions court failed to believe in this story and said that the only believable part was that Mathura had sexual intercourse when she was inside the police station and it was most probably with Ganpat.

On appeal , the High Court reversed the decision. It said that Mere passive or helpless surrender of the body and its resignation to the others lust induced by threats or fear cannot be equated with desire or will , nor can it furnish an answer by the mere fact that the sexual act was not in opposition to such desire. It said that the fact that the only reason Mathura was in the police station was because of the complaint filed by her brother , makes it more probable that any effort to have sexual intercourse was made by the accused and was without the consent of the prosecutrix. Even her subsequent declaration made her husband and all the persons present proves that she was not a willing party.

Unfortunately the Supreme Court did not agree with this. It said that unless the fear was of hurt or death , it would not vitiate consent and in this case the circumstantial evidence proves that the fear if any was not the kind to vitiate consent. The medical evidence also proved that Mathura was used to sexual intercourse , how is that relevant considering she was married to Ashok , the researcher fails to see.

This was a very unwelcome decision and there was an agitation which was taken up by various womens organizations and scholars , legal and non legal. The result of all this public agitation was that the law regarding rape was amended by the Criminal Law (Amendment) Act 43 of 1983. Accordingly the following changes[12] came into existence:-

(i) Before the amendment of 1983 there were five clauses in section 375 , IPC. Then a new clause fifthly was added. The new clause negatives the consent of the women for the purpose of the offence to rape , if the woman is of unsound mind , or is under the influence of intoxication at the relevant time. Such consent will not be considered as valid consent and the accused will be held liable for the offence .

(ii) The Evidence Act , 1872 was amended by inserting section 114A drawing a conclusive presumption as to the absence of consent of the woman in case of prosecution of rape under section 376(2) clauses (a),(b), (c), (d) (e), and (g), IPC , shifting the burden of proof of innocence on the accused .

(iii) Section 228A , IPC clause (1) prohibits the disclosure of the identity of victims in rape cases under sections 376, 376A, 376B, 376C or 376D , IPC.

(iv) Section 327 , Cr.P.C., 1973 which confers the right of an open trial has been amended making the provisions for trial of rape cases or an offence under sections 376A to 376D , IPC in camera and prohibition of trial proceedings in such cases without the the prior approval of the Court.

(v) Section 376B to 376D , IPC comprise a group of sections of that create a new category of offence known as custodial rape which does not constitute rape because in such cases the consent of the victim is obtained under the compelling circumstances. Such persons occupy supervisory positions and take undue advantage of their authority.

(vi) Section 376A makes sexual intercourse with ones own wife without her consent under a decree of separation punishable.

(vii) Section 376 , IPC has provided for a minimum of seven years of imprisonment under clause (1) and ten years under clause (2) of section 376, IPC for rape.

(viii) A proviso clause to section 146 of the Indian Evidence Act 1872 inserted vide Act 4 of 2003 has disallowed to put questions about the prosecutri character in cross examination.

Though these sections may seem to indicate a triumph of the people who are concerned about the position of women in our society and the injustice done against them ,still this has proved to be a hollow victory as the courts do not follow the written law in may cases and hence the victim still fails to get justice. Therefore the condition of the victims is still pitiable and needs serious implementation of the law by the courts to improve their condition.

Against The Will

In this chapter and the next few chapter , the various provisions regarding consent as given in section 375 , IPC will be discussed along with their various implications and meanings so as to analyse whether the law regarding the consent of the victim is satisfactory in India or not

The first clause , firstly says the sexual intercourse will constitute rape if it is done against the will of the women.Will has been described as the faculty reasoning power of mind that determines whether to do an act or not. There is a fine distinction between an act being against the will of a person or without her consent. Though against the will always implies the lack of consent , an act without her consent does not necessarily has to be against her will. The expression against will indicates a greater resistance and somehow forms the picture of struggle.

The given point will be better understood by the case given below:-

In State of Punjab v. Gurmit Singh[13], when the three accused after abducting the prosecutrix , subjected her to sexual intercourse forcibly , the apex Court held that the act was against her will and hence amounted to rape within the meaning of section 375clause (1). In this case when the prosecutrix , a girl of sixteen years was returning from her school when an Ambassador car stopped near her and the accused forced her inside it. Then they took her to the tubewell of one of the accused , there they forced her to consume liquor misrepresenting it as juice. Then one of the accused removed her clothes and she was made to lie on a cot. Then the first accused committed rape on her. She resisted and cried as she was suffering from pain but he threatened to kill her if she persisted in raising alarm. Afterwards the other two accused also committed rape on her . it was clearly a case of the act being against her will.

Without Her Consent

The second clause in section 375 deals with the scenario when sexual intercourse is termed to be rape because it is without the consent of the woman. Consent supposes three things physical power , a mental power and serious use of them. However when this is ot made an act instead of being a voluntary one becomes an involuntary violation of the victims body.

The most difficult in rape law is to distinguish consent from submission because it provides the only demarcation in the act being socially acceptable and a crime. A woman is said to consent when she freely agrees to submit herself , while in free and unconstrained possession of her physical and moral powers. Sometimes there is no actual actual power which is imposed on the victim yet there are conditions which make it impossible for her to refuse and thus she is a compliant yet unwilling person in the act. Such a consent is no consent at all and it cannot be said that the sex was consensual.

The case which explains this concept is Rao Harnam Singh, Sheoji Singh v. State[14]:-

The salient facts of the case are that Kalu Ram , husband of Mrs Surti used to live in one of the rooms of the house of the accused. One sevening Kalu Ram was required to provide wife aged 19 years to satisfy the carnal lust of the accused and his guests on the eve of entertainment party. The girl protested vehemently against this outrageous demand , but under pressure of her husband , she was forced to surrender her chastity. Three accused person ravished her during the night and she died almost immediately. Disregarding the contention made that the girl was a consenting party and had surrendered her body willingly to the accused , the High Court rightly held that mere act of helpless resignation in the face of inevitable compulsion is not equal to consent on her part.

On the other hand there are cases where it seems that the consent has been given for the sexual act whereas it has only been given due to the mistake or fraud of the other part and the conditions prevailing at the time. A few cases can be discussed for better understanding:-

In the case of Queen v . Flattery [15]: the accused was charged for rape upona 19 year girl. The girl who was in ill health and subjected to fits visited the accuseds clinic along with her mother and sought hs advice for treatment. The accused , after examining the girl , advised her to have a surgical operation , to which she consented , and under the pretence of performing it ,had sexual intercourse with the girl. It was held that the girls consent would not excuse the accused from getting convicted.

Another case is the Williams case[16]. Here the accused was a choir master and had sexual intercourse making her to believe that he is performing a surgical operation to improve her singing voice. He was held to be guilty of rape. Consent was vitiated by fraud and it was obtained under a misconception that the physical manipulation would provide her with extra air supply to sing better.

On the other hand if the consent is for sexual intercourse then no matter what the change in circumstances , even if it would mean removal of the essential feature on which her consent was based , the consent would still be valid and hence exonerate the other party .

For example in the case of R. v. Linekar[17] : the accused had procured a woman , a part time prostitute , to have sexual intercourse with him , by promising to pay her twenty five pound, never intending to pay. He was acquitted because irrelevant of the reasons , the woman had consented to have intercourse with him.

Whereas it is relatively easy to prove whether the act was against the will of a person , proving whether there was consent or not is a more intricate job and needs to be analysed by taking into considerations , individual circumstances in each case.

Fear of Death or Hurt

The clause thirdly of section 375 deals with the scenario where the consent has been given in fear of death or hurt to the prosecutrix or any person she is interested in. In such a case the consent will not be considered as valid and the accused will be liable for rape.

The scope of this clause was widened In 1983[18] to include , along with the prosecutrix , any person she is interested in. This makes the clause more useful and is an indication that the legaislators took into account , reasonably probable circumstances. However this clause is helpful only when the court interpret it as widely, as is intended. One of the reasons for the grossly unjust decision in the Mathura rape case was because the court refused to believe that the consent or rather the passive submission of Mathura was because of the circumstances which made her apprehensive about her safety and life. The situation hs improved after 1983 because one of the major causes of this fear for life and health comes from the police or other powerful government servants , i.e. while the victim is in their custody and the new laws made regarding custodial rape has vastly complemented this clause

One of the cases where this clause was used with admirable results was that of State of Maharashtra v. Prakash [19]:-

In this case ,the Supreme Court rightly held that where a police constable and a businessman had sexual intercourse with a rustic woman by beating her husband and threatening to put him in police remand , this act falls within the scope of the said clause. Suggestion that the victim , had consented to intercourse willingly is ruled out. For the offence it is not necessary that there should be actual use of force , a threat of use of force is enough.

Misconception

The clause fourthly of section 375 IPC reads With her consent when the man knows that he is not her husband , and that her consent has been given because she believes that he is another man to whom she is or believes herself to be lawfully married. Simply put this section means that if a womans consent to the act of intercourse has been obtained by her making her believe that she is doing it with her lawfully wedded husband then such consent is no consent at all and the person who made her believe this is punishable for rape. However if the person himself has a bona fide belief that he is indeed her husband then it would not constitute rape. Thus this is one of the clauses under the rape law which explicitly deal with the concept of mens rea , when it talks about knowledge of the fact that he is not hr husband.

The clause is very similar to the clause 3 of the newly amended section on rape in the Sexual Offences Act 1956. It reads as follows:-

3. A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband

There have been no cases under this principle in India. But there has been an English case on the given principle

In the case of R v. Doe[20] :- The Court of Crown Reserved of Ireland held the accused guilty of rape when he represented himself as husband of the prosecutrix. He had meanwhile gone out to fish. She lay down upon a bed in her sleeping room in the evening when it was dark. The accused came into the room and presenting himself as her husband , lay down on her and had connection with her. She did not at first resist , believing the man to be her husband. But on discovering that the person was not her husband which was after the commencement of the act but before the termination, her acquiescence terminated and she ran away. It was held that the accused cannot take the plea of consent as defence.

This has been an activity which has been present in history as well and its classification as a rape has its basis in ancient folklore like that of sage agatsya and devi Ahilya and also the English legend of King Arthur.

Unsound Mind or Intoxication

A very important clause under the section dealing with the basic definition of rape is the fifth one which says that when the consent is given by a woman of unsound mind or by a woman whose decision making ability is clouded because of the effect of any intoxicant , when this same material has been administered by the accused directly or indirectly, the given consent is not valid and the man will be guilty of rape.

This clause has been added by the amendment of 1983 and has been done mainly to protect the interest of women who can duped into consuming substance which might harm her later. Also it has been done to protect the interests of those girls and women who might not be in a position of understanding the gravity and implications of the act they are consenting to. This is in direct violation of an essential feature of consent , i.e. that of having requisite mental power to make the decision which is absent in both the cases.

There is no illustrative case which deals with forcible or deceptive intoxication of the victim. But there are illustrative cases about rape of victims of unsound mind. One of these is :-

Shamsher Tappi v. State of UP[21]: In this case , the accused committed rape on a mentally retarded minor girl. The eye witness in this case was another girl who had rushed to the scene and seen the culprit escaping. In this case even though the girl was not brought as a witness , it was held that this was not violative of sections 118 and 119 of the Evidence Act and the accused was convicted of rape.

Effect of The Amendments of 1983

Although there were fairly comprehensive rules and provisions regarding consent of the victim, after the injustice in the Mathura rape case , a need was felt to amend the law. This was in view of cases where they may seem to be consent but it is actually mere submissions in front of unusual circumstances and pressure which may be less than an actual threat of death or hurt as prescribed by law yet be enough to compel her to submit to her assailant. This is normally in the case of custodial rape , or rape by medical practioners etc.

Thus the amendment has inserted certain sections known as sections 376a to 376g which deal with specific cases . 376 (a) deal with a rape by a police officer of a woman who is in his custody , 376 (b) deals with rape by a public servant on a woman who is in his custody or that of his subordinate officers , 376 (c) deals with rape by a any person in the management of a jail , remand home or any place of custody or institution of any inmate, 376 (d) deals with rape by any person related with the management of a hospital of any patient in the precincts of the hospital, 376(e) deals with the rape of a pregnant woman , 376(f) deals with rape of a child of under twelve years of age and lastly 376 (g) deals with gang rape. All theses cases have been recognized as exceptional cases and thus in all these cases the minimum punishment is ten years imprisonment with or without fine and the Court is to give reasons in writing if it decides to reduce the punishment. This is in contrast to normal rape cases where the minimum punishment is seven years imprisonment with or without fine .

However in the researchers opinion the most useful and helpful amendment is the insertion of section 114A in the Indian Evidence Act which says that in all the cases listed in sections 376 A to 376 G , rape will be presumed and thus the burden of proof will be on the accused to prove his innocence. This helps the victim because she will not have to endeavour to prove her lack of consent , proving this can be very difficult as only the accused and the victim are in a position to know for sure whether there was any consent or not. But in all these cases it is safe to presume rape. An Indian woman is anyway not expected to lie about such an incidence because coming out in the open about this will comprehensively destroy her future prospects and her chances for rehabilitation.

The new amendments have been used in cases like State of Haryana v. Prem Chand[22] by judges with great aplomb. In this case the victim ran away with a man against the wishes of her family which in turn filed a complaint with the police. The police caught up with them in a lodge and took them to the police station. Later the accused, a constable, brought the victim back to the lodge and committed rape on her. The defence tried to contend that the victim was a woman of easy virtue and was a consenting party here. The Supreme Court rightly refused to consider her moral conduct irrelevant and convicted the accused under sec. 376. The facts of this case are similar to that of State of Maharashtra v. Chandra Prakash Jain[23] where a similar decision was taken.

The above cases prove the efficacy of these amendments.

Conclusion

Consent of the victim is the most important aspect of rape law as it is this which distinguishes normal social behaviour from a crime. Therefore it is necessary to see that the law is formulated in such a way that it is easy for the victim to prove that there was no valid consent. It is a rather difficult job due to a host of reasons . There is always a chance of these provisions being misused , but it is a distant possibility in the. Indian society .

The present provisions made in section 375 are pretty comprehensive and provide adequate recourse to the victim , but only when they are properly interpreted by the courts , in the spirit in which they are intended. But when criminals like Ganpat (Mathura rape case) are acquitted because of mere technicalities, then there is a serious need to amend the law.

The legislators must be commended at having done an exemplary job in combating the problem of custodial rape and rape by people which have a great influence on their victims. Unfortunately the courts have failed to rise to the occasion and even today despite the newly amended law many culprits go scot free because the court is too lenient with them and/or feels that the evidence is not adequate to convict the respondent. One of the main examples is that in which the accused is acquitted just because there is no adequate corroboration to the victims statement , this is despite the fact that it has been laid down that no corroboration is needed in rape cases .

On the other hand one of the most sad case is that of victims whose character is questioned and the decision is based on the supposedly loose character of the woman which also leads one to presume that her consent was present . even despite judgements prohibiting this this is still a common practice in rape cases.

So, in the end the researcher would like to give only one suggestion i.e. the courts should make proper use of the given law and base their decisions on careful analysis of individual facts of the case rather than iron clad rules. When basing the decision on a law , its spirit must always be kept in mind.

Another suggestion can be that sexual crimes must generally be adjudged by a female judge as this is more comfortable for the victims , but this might result in the her being biased towards the victim. Ultimately what is important is the proper implementation of law, by any person concerned.