In this article, Aastha of RGNUL discusses the statutory interpretations of consent under the Indian Rape laws.

Introduction

A very imperative thing to be considered and taken into account is what the word ‘consent’ actually means. Many sexual crimes remain unreported because of lack of awareness among the people as to what actually amounts to such a crime and whether they have the power to say NO.

Lack of consent is not necessarily showcased by physically resorting to violence. Instead, there can be passive resistance and it would still amount to a non- consensual sexual act.

Will and Consent

In the Indian context, both these terms are usually used interchangeably. However there is a hell lot of a difference between the two.

Will is a mere want or desire to do an act. It usually reflects to yearning or longing to enter into a sexual act. On the other hand, consent relates to the active showcasing of willingness, a manifestation of actual will to do an act.

A person can have a will to do a particular act but still may not consent to it. Even if a person has a will to engage in a sexual activity but he/she does not actively consent to it, the person entering into a sexual act with him would be liable for a crime

Consent has to always be actively given and is never to be shown by way of gestures/looks. Any sexual act without the consent of a person of a person or even with the consent of a person considered incapable under law to give consent is considered a sexual offence.

Non-consensual Sexual intercourse: IPC provisions

1. Section 354 of The Indian Penal Code, 1980

Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

2. Section 354A of The Indian Penal Code, 1980

A man committing any of the following acts—

1. 1. physical contact and advances involving unwelcome and explicit sexual overtures; or

   2. a demand or request for sexual favours; or

   3. showing pornography against the will of a woman; or

   4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

3. Section 354B of The Indian Penal Code, 1980

Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

4. Section 370 of The Indian Penal Code, 1980

Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers, or (e) receives, a person or persons, by—

1. using threats, or

   

2. using force, or any other form of coercion, or

3. by abduction, or

4. by practising fraud, or deception, or

5. by abuse of power, or

6. by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received,

7. commits the offence of trafficking.

Explanations: 1. The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

5. Section 375 of The Indian Penal Code, 1980

A man is said to commit “rape” if he

1. penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or

2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—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 such 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. Exploitation of a trafficked person. Substitution of new sections for sections 375, 376, 376A, 376B, 376C and 376D. Rape.

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

Seventhly.—When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided 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 activit

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Concept of Statutory Rape

Statutory Rape is sexual intercourse between two people that is deemed unlawful as one or both of them is below the legal age to get involved sexually. Even if the intercourse is consensual, still the act amounts to Statutory Rape as the minor who is involved is considered to be incapable of giving his/her consent to the said act. Hence, any such consent become irrelevant

Since Statutory rape comes under the purview of rape under Section 375 of Indian Penal Code, the punishment for the same lies under Section 376 of the code.

The law relating to Statutory rape has to be stringent as the section of society it seeks to protect, including minors and mentally incapacitated, are the most vulnerable sections and need protection more than others.

Discussed below are 3 major reforms in the sexual intercourse laws in the country-

1. Protection of Children from Sexual Offences Act, 2012

2. Criminal Law (Amendment) Act, 2013

3. Criminal Law (Amendment) Ordinance, 2018

Protection of Children from Sexual Offences Act, 2012

Commonly known as POSCO, this act received the President’s assent on June 19, 2012 and was gazetted on the very next day. It was designed to protect the children from offences of sexual assault, sexual harassment and at the same time provide for courts to facilitate trial of such cases. There arose a need to pass a specific act for children as they are considered incapable of giving their consent and hence prone and susceptible to exploitation.

Chapter II of the Act defines the Sexual offences against children. It discerns the parameters and the punishment therefor the following-

1. Penetrative Sexual Assault

2. Aggravated Penetrative Sexual Assault

3. Sexual Assault

4. Aggravated Sexual Assault

5. Sexual Harassment

Chapter III of the Act defines using child for pornographic purposes and the punishment therefor. It also lays down the procedure for reporting of cases (Chapter V) and the procedure for recording statement of a child (Chapter VI).

Age of Consent

Section 2(d) of the POCSO Act defines a ‘child’ as any person below the age of eighteen years. Worth noting here are two aspects of the act-

1. As against the popular belief that sexual assault can only affect females, this act is gender-neutral and seeks to protect both the sexes equally without any discrimination.

2. Also, the age at which a person becomes incompetent to give consent has been set at eighteen.

All sexual acts defined under various sections of POCSO are considered to be violative of the act only if they involve a ‘victim’ below the age of 18 years. It is considered that below the age of 18, a person is incapable of consenting to a sexual act. Hence, even if the act is consensual, it is still punishable.

According to Section 34(1), where the offender himself is a child, he/she shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Consensual sex: Not a crime

A Delhi district court has observed that consensual sex with a girl aged below 18 years does not constitute an offence under the Protection of Children from Sexual Offences Act. The court said the provisions of POCSO Act suggest that where a physical relationship without the minor girl’s consent or where the consent has been obtained unlawfully, only that would amount to a crime. Hence, consensual sex is no offence. It was believed by the court that criminalising such acts would be too restrictive of children’s autonomy and hence, would not serve the purpose. Now, whether the particular consensual sexual act amounts to exploitation or not is highly circumstantial and discretionary.

Obligatory reporting

Owing to the fact that a considerable number of assault cases remain unreported in the country, the act also contains provision relating to compulsory reporting of the crime.

1. According to Section 19, Any citizen who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, shall provide such information to the Special Juvenile Police Unit or the local police enshrined in POCSO.

2. Also, According to Section 19,

   1. Any person, who fails to report the commission of an offence shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

   2. At the same time, any person who was in-charge and who fails to report the commission of an offence shall be punished with imprisonment for a term which may extend to one year and with fine.

Age discernment

According to Section 34(2) of the POCSO Act, The question whether a person is a minor or not shall be determined by the Special Court. Though the act lays down for such determination, there are no clear guidelines as to the determination of age of both the offender and the victim. In India, where a large proportion of births are not registered and hence major sections of the population do not have age-proofs like birth certificate. This causes a major trouble in the implementation of the act as minority is vital ground of the act.

Criminal Law (Amendment) Act, 2013: Sexual Offences

Delhi gang-rape case

Owing to the widespread enragement over the tragic Delhi gang-rape case (Nirbhaya incident) of December 16, 2012, the Government of India clearly saw the need to take some drastic steps to pacify the multitude and reduce the rampant cases of violence against women in the country. This incident shook the country to its very core and the nation had never seen such a united front against the issue of rape and sexual assault.

Justice Verma Committee Report

After the verdict of the case, there was a nation-wide demand for stricter laws on the subject matter. Consequently, in December, 2012, GOI constituted The Justice Verma Committee, a three-member committee headed by the former Chief Justice of India, Justice J.S. Verma to look into the issue.

The committee gave its report on matters relating to-

1. Constitutionalism, Republicanism, and Gender Equality

2. Gender Justice and India’s Obligations under International Conventions

3. Rape and Sexual Assault

4. Sexual Harassment at the Workplace

5. Trafficking of Women and Children

6. Child Sexual Abuse

7. Khap Panchayats and Honour Killings

8. Sentencing and Punishment

9. Provision of Adequate Safety Measures and Amenities in respect of Women

10. Medico-Legal Examination of the Victim

11. Police Reforms

12. Electoral Reforms

13. Education and Perception Reform

Recommendations of Justice Verma Committee

Following are some of the recommendations of the JVC-

1. Marital Rape should be criminalised under Section 375 of Indian Penal code and the exception regarding the same should be nullified.

2. The word rape under Section 375 to be replaced by sexual assault.

3. Two-finger test in case of rape was considered exploitative and hence should be immediately banned.

4. Consent must be real and not it is vitiated by fear of injury, a misconception of fact. Also, it should not be given by a person who is of unsound mind, or intoxicated and hence is unable of understanding the repercussions of the consent. The consent of a person below 12 years of age is also considered no consent.

5. Section 160 of the CrPC has been amended to require the statement of female victims of sexual assault under the age of 12 to be recorded by a woman police officer.

6. It also laid down stricter provisions for filing of police complaints and the conduct of the officers.

Relying on some of the recommendations of the Committee report, an Ordinance was enacted which was signed by the President of India (Mr Pranab Mukherjee) on February 03, 2013.

Criminal Law (Amendment) Bill, 2013

The Criminal Law (Amendment) Bill, 2013, was passed in the Parliament overriding the said ordinance. On April 2, 2013 the word ‘bill’ was replaced by ‘Act’.

Criminal Law (Amendment) Act, 2013 aka the Anti-rape Act, amends the following acts-

1. Indian Penal Code (IPC), 1860

2. Code of Criminal Procedure (CrPC), 1973

3. Indian Evidence Act (IEA), 1872

4. Protection of Children from Sexual Offences Act, (POCSO), 2012.

Significant changes under Criminal Law (Amendment) Act, 2013

• Modifications to Indian Penal Code, 1980

1. Inserted sections 354A and 354B dealing with Assault or use of criminal force against women. (Discussed above)

2. Rape under Section 375 of Indian Penal Code earlier included just the vaginal penetration. However, with coming up of the act, the ambit of rape was widened to include more extensive physical acts. In addition to vaginal penetration, it sought to include the following acts done by a person or if the person makes someone else do such acts to amount to rape-

   1. Penetration of penis into vagina, urethra, mouth or anus.

   2. Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus.

   3. Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part.

   4. Application of mouth to the penis, vagina, anus, urethra.

   5. Touching the vagina, penis, anus or breast.

3. Also, the provisions of punishment under Section 376 were also significantly altered, enlisted below.

• Modifications to Indian Evidence Act, 1872

Presumptions were to be made as to absence of consent in certain prosecution for rape.

1. Section 114A was added to the Indian Evidence Act, 1872 which stated that in cases where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The onus is on the accused to prove that there was consent.

2. Also, Section 146 of the Indian Evidence Act was amended to state that questions of general immoral character or about previous sexual experience shall not be asked and also, would not be admissible in the court.

• Modifications to POCSO Act, 2012

1. The age of a child was reduced from 18 years to 16 years under Section 2(d) of POCSO Act.

2. Punishment for rape under the act was increased from 7 years imprisonment and fine to 10 years imprisonment and fine.

3. For Section 42 of the POCSO Act, it was held that where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509 of the Indian Penal Code, the offender shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree

• Modifications to Code of Criminal Procedure, 1974

1. A woman against whom any such offence has been committed or attempted shall be recorded, by a woman police officer or any woman officer under Section 161 of CrPC.

2. Section 273 of the CrPC was amended to provide that while recording the evidence of a victim woman below the age of eighteen years, the court will ensure that such woman is not confronted by the accused.

Criminal Law (Amendment) Ordinance, 2018

The Criminal Law (Amendment) Ordinance, 2018 was initiated on April 21, 2018 primarily to amend certain laws related to rape of minors. It aims to make changes to the following-

1. Indian Penal Code (IPC), 1860

2. Code of Criminal Procedure (CrPC), 1973

3. Protection of Children from Sexual Offences Act, (POCSO), 2012.

4. Indian Evidence Act, 1872

• Modifications to Indian Penal Code, 1980

1. The punishment for rape under IPC was enhanced. Initially, offender would be liable for rigorous imprisonment of at least seven years up to life imprisonment, along with fine. Now, the minimum imprisonment has been increased from seven years to ten years.

2. Following provisions were added

 

• Modifications to Code of Criminal Procedure, 1980

1. According to the provisions of CrPC, 1980, the maximum time for completion of investigation was two months. This Ordinance decreases the time from three to two months.

2. Also, an appeal in case of any rape case has to necessarily be disposed off within six months.

3. No anticipatory bail to be granted to the alleged offenders accused of sexual assault against minor girls below the age of 12 and 16.

• Modifications to Indian Evidence Act, 1872

Under the IEA, 1872, in determining the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

• Modifications to POCSO, 2012

POCSO Act has been also amended to include newly inserted Section 376AB, 376DA, and 376DB of Indian Penal Code, 1980.

Conclusion

If deciding over the age of consent is such a big political and social issue in a country, then there is something terribly wrong with the system. Though it is legally required to have a set age for the same, but there should be no moral obligation. Also, in a country where the age of consent for a married woman is lower than an unmarried woman and marriage is taken as a licence to rape, there is a dire need for reformation