This article is written by Varnika Gupta and Srishti Chauhan.
“Silence does not mean yes. ‘No’ can be thought and felt but never said. It can be screamed silently on the inside. It can be in the wordless stone of a clenched fist, fingernails digging into palm. Her lips sealed. Her eyes closed. His body just taking, never asking, never taught to question silence” – Amy Reed, “The Nowhere Girls”
Since a month of Sundays, there has been a grey area enclosing the term “Consent”. Etymologically, the expression, “Consent” has been derived from Old French, ‘consentir’ which means ‘agree’ comply’ and directly from Latin word, ‘consentire’ which means ‘agree, accord’. By virtue of the assimilated form of ‘com’ which means, ‘with, together’ and ‘sentire’, which subsequently connotes ‘to feel’; the term implies “feel together”. Eventually, the sense evolved to “feeling together”, that is, agreeing or giving permission. According to the Oxford English Dictionary, the term ‘consent’ has been defined as compliance, concurrence or permission. Moreover, it refers to a voluntary agreement to or acquiescence in what another person proposes or desires.
A novel term ‘Grey Rape’ has garnered a lot of attention recently. The term was popularised in one of the articles published in the September issue of Cosmopolitan Magazine written by Laura Sessions Stepp, a Washington Post journalist. In the article titled, “A New Kind of Date Rape”, the author defined “grey rape” as “sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what.” Many experts have associated the genesis of grey rape as a consequence of rising hook up culture.
In her article, Stepp narrates the story of a young girl named Alicia who even after years of her sexual encounter, is triggered by its haunting memory. What had happened was that Alicia had asked another student, Kevin, to be her date at a college sorority formal. They went to dinner with her friends and later, to dance. They got drunk but not what we’d call sloppily wasted. After this, they went to Kevin’s room and started making out. Straightforwardly, she told him that she won’t proceed further to sex and he agreed. But after a few minutes, he pushed her down on the couch and positioned himself on top of her. She started saying, ‘No’, though softly. Despite her resistance, he didn’t stop and entered her anyway. Consequently, she went numb until it was over. Such instances where the consent is equivocal and unclear are examples of ‘Grey Rape’.
Consent is sine qua non, that is, an essential condition for the offence of rape. There is no mystery surrounding sexual consent. It is clear, unequivocal, and can be verbal or non-verbal, that is, implied by gestures, signs, and so on and so forth. Consent is one thing that should not be presumed. Couples who have been involved for an indefinite time and who have had sex umpteen times also need to consent before engaging in sexual intercourse, every single time.
Legal Position of Consent under Indian Law
The definition of consent has been provided in Section 90 of Indian Penal Code and Explanation appended to Section 375 of Indian Penal Code. According to Section 90 of Indian Penal Code (hereinafter referred to as IPC), a consent given by a person under fear of injury or under misconception of a fact is not a consent if the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception; or a consent is not consent if it is given by a person who is unable to understand the nature and consequence of that to which he gives consent by the reason of unsoundness of mind or intoxication; or a consent is not consent if it is given by a person who is under twelve years of age unless the contrary appears from the context.
The explanation appended to Section 375 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”. On a careful perusal of the section, it can be imputed that the jurors contemplate an expressive standard for sexual consent but do not require subjective determination of the question of consent in the mind of the accused. It is evident on a careful reading of Explanation appended to section 375 that it is the victim’s expression of consent and not the accused’s perception. Therefore, it can be easily said that the approach adopted by legislation is more objective than subjective in assessing whether consent is present or not.
What is Rape?
Etymologically, the term ‘Rape’ has been derived from the Latin word, ‘Rapere’, which means ‘to snatch, to carry off, to grab’, thus connoting ‘to seize and take away by force’. In the eighteenth century, Sir William Blackstone defined rape as “carnal knowledge” of a woman forcibly and against her will. The law pertaining to rape has always been quite controversial and often at the receiving end of censure. The offence of ‘Rape’ was explicitly defined in the Indian Penal Code in the year 1860. Section 375 and Section 376 of IPC deal with the offence of rape where the former defines the offence of rape and latter prescribes the punishment.
According to Section 375 of IPC, the act of sexual intercourse by a man with a woman without her consent, or against her will, or by coercion, misrepresentation or fraud or at a time of her being intoxicated or being of unsound mind and in any case if she is under eighteen years old constitutes the offence of ‘Rape’. Section 376(1), IPC which prescribes punishment for the offence of rape dictates that a person convicted for the offence of rape shall be punishable with imprisonment for a term which shall not be less than seven years but may extend to imprisonment for life and he shall also be liable to fine. It is to be noted that according to the definition provided in IPC, only a male can be the perpetrator and the victim would always be a female. Moreover, our legal system provides qualified immunity to boys below twelve years of age. (Section 82 and Section 83 of IPC). Indian legal system also provides for marital immunity rule of rape, that is, sexual intercourse by a man with his own wife does not come under the ambit of the offence of rape provided that the wife is not under fifteen years of age. (Exception 2 appended to Section 375)
As classified under Indian law, the offence of rape is cognizable, that is, an offence for which a police officer may arrest without warrant and non bailable and triable by the Court of Session. The onus or burden of proof is always on the prosecution to prove affirmatively each ingredient of the offence of rape and it never shifts. Moreover, the burden of proof to show the lack of consent is also on the prosecutrix.
The Criminal Law (Amendment) Act 2013, an Indian legislation which provides for the amendment of Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure that received presidential assent on 2nd April 2013 and subsequently came into force on 3rd February 2013, widened the scope of offence of rape. Before the said amendment, non-consensual and coercive sexual intercourse by a man with a woman in a set of specified circumstances as stated in Section 375 was necessary. Mere slightest or partial penetration of the male organ with the labia majora or the vulva was sufficient to constitute the offence. However, after this particular amendment, the offence of rape is not confined merely to penile-vaginal penetration in the specified circumstances but also includes oral sex as well as insertion of any an object or any other body part into a woman’s vagina, urethra or anus.
By virtue of the 2013 amendment, Section 114 A was inserted in Indian Evidence Act which dictated that an alleged act of sexual intercourse was without the consent of the prosecutrix will be presumed ipso facto unless the contrary is proved. Thus, in this case, the onus shifts to the accused to prove his innocence. It is important to note that Section 114 A is only available to cases that fall under Section 376 (2), IPC.
What is Grey Rape?
The core of the term ‘Grey Rape’ lies in the unclear consent of the victim. Unlike the traditional form of rape where coercion and violence are entailed, Grey rape majorly involves emotional manipulation of the victim wherein the victim might or might not have given consent for sex or might not have agreed to a certain type of sex which the perpetrator persisted upon. It has been seen in many cases that the victim was incognizant of the fact that she had been raped.
The Adam Lack Case is one of the prime examples of such a category of rape. In the year 1996, a young girl named Sara Klein, probably in her first year of college, went to a party at Delta Tau. Before heading towards the party, the girl got intoxicated with her girlfriends. After a few hours, she was found by a male junior namely Adam Lack lying next to a pile of vomit, who subsequently helped her to his room. Ensuing, the next morning, the girl woke up and gave her phone number to the young man and afterwards, walked back to her room. He called her several times after this particular incident.
Eventually, they spoke on the phone and the man told her that they had sexual intercourse. On the contrary, the girl told him that she had no recollection of the events that took place. Consequently, the girl filed a complaint alleging the man of sexual misconduct. She reiterated that she had no memory of what happened and she was too intoxicated to give a clear and unequivocal consent. However, according to Lack he had consensual sex with Sara Klein while she was drunk and not in her senses, she was apparently not aware that they had sex until days later after Lack asked her about the experience. In 1996, Lack’s one semester suspension further led to a guilty conviction for ‘flagrant disrespect’.
This particular incident divided the masses into two different halves of the spectrum, first half, that is, those who believed Lack to be a convicted rapist and the second half, that is, those who believed that he was unjustly targeted by the feminists of the campus and wished for his exoneration.
Types of Grey Rape
Date rape is fundamentally a kind of rape where there is an apparent potential for a sexual relationship between the partners but the victim is undesirous of sexual intercourse. At times the perpetrator may not understand the will of the victim and may manoeuvre the victim into performing sexual activity. In such cases, the victim is acquainted with the perpetrator.
The Varkala incident, a case of Date Rape is a paradigm precedent for the same. The prime suspect was an acquaintance of the girl and at his behest, she went places with him. Howbeit, the problem started when two friends of the prime suspect joined the couple and the three youths raped the girl. Furthermore, ‘Date Rape’ is sometimes committed due to misunderstanding into the bargain. The incidents of date rape are rising exponentially and the consent of the victim is presumed and taken for granted.
Rape by Deception
It is a kind of rape where consent of the victim is involved but the consent is obtained by misleading the victim by way of making false statements and actions, mostly by manipulating the victim’s mind. The victim is skillfully persuaded to have sexual intercourse by the perpetrator. The perpetrator may coax the victim by tempting or might even use force to threaten the victim. There have been several cases where the victim is lured into having sex but one prominent example of Rape by Deception is ‘Rape by Spiritual Gurus’. Sometimes, these predators influence the victims into having sex with them in order to satiate their own lust. Their disciples, on the other hand, having trust in them profusely find it hard to deny their guru. Two former tantra students talked about the abuse they faced while seeking spirituality and enlightenment at a Thai yoga retreat. The particular retreat has also been accused of being a ‘sex cult’. Their guru had the audacity to call the sexual abuse a ‘ritual’ in order to seek enlightenment. It is often seen that these spiritual gurus have been exploiting people since years under the garb of leading them to spirituality.
The Case of Feeble ‘No’ under Indian Law
The judgement pronounced in the case of Mahmood Farooqui v. State (Govt of NCT of Delhi) garnered a lot of censures. In September 2017, Hon’ble Justice Ashutosh Kumar delivered his judgement in a rape case involving allegations against ‘Peepli Live’ co-director Mahmood Farooqui. The Hon’ble Justice of Delhi High Court held ,“In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no.”
In the aforementioned case, the victim accused the defendant of forcing oral sex on her. In her email to the accused the complainant was quoted as writing that she told him many times that she did not want to but when he became forceful, she had no choice but to get along because she was afraid that something bad would happen if she did not do it. She wrote to him that it was because of the physical pressure of the accused. Instead of enforcing the consent law as it was adopted in 2013, the Delhi High Court overturned the conviction of Mahmood Farooqui stating ‘A feeble no may mean yes’.
The court recited that a feeble no can signal consent, especially when the victim is well educated. It said that an academically qualified woman like her needed to make her unwillingness explicit. This daunting statement by the Delhi High court leads us to worry about the precedent that has been set by this judgement. This judgement received backlash in legal circles as well, as it completely erodes the definition of consent. Ms. Karuna Nundy, an eminent Supreme Court Advocate also opposed this particular judgement, and in one of her interviews given to CNN said, “In this judgment, the court has unfortunately elided over the legal definition of consent that, that many of us worked to bring into law in 2013”. In one of her interviews, Ms. Nundy reiterated that law in India is that yes means yes and no, no means no.
It is also observed in umpteen cases that victim shaming and bashing is not news. Victim bashing and investigation of rape cases go hand in hand. Recently, in the matter of Rakesh B. v. State of Karnataka, Karnataka High Court while granting bail to the accused held that “Nothing is mentioned by the complainant as to why she went to her office at night that is, 11.00 pm; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep , is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” This is nothing but a stereotypical view held by Hon’ble Justice Dixit while granting bail to the accused. It also points out that prevalent misogynistic and patriarchal mindset is the root cause of the mishandling of rape cases and why a number of cases go unreported. It not only scars the reputation of the prosecutrix but also deeply affects her mental health and aggravates the trauma.
In his book, ‘Discretion, Discrimination and Rule of Law: Reforming Rape Sentencing in India’, Mr. Mrinal Seth (Associate Professor of Law at the National Law University, Delhi) analyses sentencing of rape in India by using data from 25 years of rape adjudication in Indian Courts. In his much-coveted book, he points out the shift of stereotyping from the stage of guilt adjudication to the sentencing phase of rape trials as a result of the amendment of Indian Evidence Act in the year 2002. The said amendment repealed Section 155(4) of Indian Evidence Act. According to Section 155(4), Indian Evidence Act, defence could bring evidence to show that victim/ prosecutrix was of immoral character. By virtue of the amendment of 2002, a new proviso was added to Section 146, Indian Evidence Act, which deals with questions that are lawful in cross-examination. The newly inserted proviso to Section 146 made it clear that questions pertaining to her general immoral character would not be permissible, that is, previous sexual experience with any person for proving the quality of consent would hold no significance. However, since the new law prohibits the use of stereotypes and myths in guilt adjudication phase, courts started using these in the sentencing phase.
The concept of rape originates from the idea of ancient male concepts of property. In his book, ‘Understanding Criminal Law’, Joshua Dressler effectively enunciated how women, since time immemorial, have been objectified inordinately. Originally, a virgin daughter was a valuable commodity owned by her father and similarly, wife was regarded as a chattel of her husband. Thus, rape was nothing more than a property offence. Moreover, the marital exemption, that is, the doctrine that supports the view that a husband is legally incapable and incompetent of raping his wife rightly corroborated the concept of possession of sexual rights over wife by the husband. Our legal system explicitly defines the offence of rape but the definition surrounding the expression, ‘consent’ still comes under a grey area.
According to the National Crime Records Bureau Report of 2018, 93.9 % of the total cases of rape reported in India were committed by someone known to the victim. The New York Times published an article titled “When saying ‘Yes’ is easier than saying ‘No’”. The author of the article, Jessica Bennet delineated the knotty situations which at times come along during a sexual encounter. She goes on saying, “you thought you wanted, or maybe you actually never wanted, but somehow here you are and it’s happening and you desperately want out, but you know that at this point exiting the situation would be more difficult than simply lying there and waiting for it to be over.”
The victim might sometimes be entangled in situations where there is no point of return. The victim is pressurized to do it anyway when they don’t really want to. Every so often the victim is seen to find it easier to just go along with it rather than getting up for themselves and explicitly say ‘NO’. Moreover, the convolutions of recognizing ‘Grey Rape’ make it difficult for the victim to obtain justice. This makes it a bigger issue to address because Grey Rape is not classified as an offence in itself. The absence of evidence in such cases makes it all the more difficult to solve. The helpless victims of Grey Rape usually have only voice evidence which does not account for an impactful testimony.
Rape, in particular, is an offence that not only leaves bruises on the body of the survivor but scars her psyche for an indefinite period of time .According to an article published in the first quarter of the year 2020 by The Economic Times, the conviction rate in rape cases is appallingly just 27.2%. In a country like ours where conviction rate in the rape cases is as low as 27.2 % and marital rape is still excluded from the ambit of the offence of rape, addressing the issue of grey rape seems to be a far-fetched dream.
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