The article is written by Ansruta Debnath, a student of National Law University Odisha. This article focuses on the rising concerns with regard to sexual consent in online dating. Relevant legal provisions have been discussed along with the way forward.
Table of Contents
Introduction
Dating apps have become a convenient, accessible and affordable means through which people interact. As a result, their popularity has grown exponentially in recent years. With easy accessibility and inclusiveness of the queer community, online dating apps are a go-to for anyone who wants to engage in romantic relationships. Before the COVID 19 pandemic, dating apps were fairly popular. After the lockdown was imposed, these applications experienced phenomenal growth. With everyone reeling from social isolation and lack of intimacy, online relationships are where they found solace.
With increased use, came increased problems as well. Dating apps, apart from their positive aspects, have also become plagued with increasing instances of sexual harassment. In light of these events, it becomes important to renew the conversation on these issues as well as on the intricacies involved in online dating and sexual consent.
Consent through dating apps
Consent is the voluntary agreement with something or to do something. It occurs through communication. The definition of consent is largely dependent on context.
Sexual consent comes from a continuous dialogue between people on boundaries and what someone is comfortable with. It should be clear and definitive to ensure maximum transparency. Consent for one sexual activity does not imply consent for something else. Moreover, consent can be withdrawn at any point in time. Thus, it is important, safe and recommended to periodically check with your partner(s).
All these principles become important especially in the age of modern dating. With technology and devices guiding dating, there are high chances of proper consent getting lost. It is important that all parties involved ensure that the others involved in the online relationship are completely comfortable with all activities they are engaging in. If sexual consent is being given under pressure, it is not valid consent.
Top dating apps like Tinder have renewed and reinvigorated conversations about sexual consent in dating apps. Launching a campaign through print media, Tinder introduced a new method of looking and understanding consent. Instead of “no means no”, it is better to describe proper consent as “only ‘yes’ means yes”. Only complete affirmation of the proposed activity should be considered valid consent. Anything in-between is not consent.
Types of consent in online dating
Consent signaling
This is when parties utilize a dating app’s interface to convey their implied consent to sexual activity without any clear confirmation of consent. Simply put, by using the app and without any overt affirmation, you agree to sexual behaviors. Users must recognize that such an app is designed to assist them in locating sexual partners.
Major problems of sexual consent arise in these apps. Because these apps are used for sexual activity, someone might unknowingly end up agreeing to something that they do not actually want.
Affirmative consent
Before meeting in person, the parties announce their open consent to engage in sexual acts. This is verbally reconfirmed face-to-face later when they meet. It requires the parties to provide permission that is devoid of any doubt. Many applications, like Tinder, advise users to obtain consent from one another before participating in sexual activity. This is a much more secure method of giving and receiving consent.
Affirmative consent is now incorporating within itself the concept of enthusiastic consent. Enthusiastic consent is a modern concept of consent that emphasizes a positive statement of assent. Simply said, enthusiastic consent implies seeking a “yes” rather than a “no.” This is the basis of Tinder’s campaign. However, seeking for a “yes” should not be mistaken for getting a “yes” any way possible- doing that will amount to coercion.
Positive body language such as smiling, keeping eye contact, and nodding can be used to show enthusiastic assent either vocally or nonverbally. These cues may not always indicate consent, but they are extra features that may indicate permission. However, it is still required to get verbal confirmation.
A person’s “yes” should mean “yes” and their “no” should mean “no” for any sexual proposition under the affirmative model of consent. Furthermore, this model assumes that the woman has not consented to any sexual activity until she is explicitly questioned and says “yes”. In case of a “no”, any act along the lines of sexual intercourse would be considered as rape, according to Section 375 of the Indian Penal Code, 1860.
When is consent not given?
Indian Penal Code,1860 describes consent negatively in Section 90. According to Section 90, consent is not considered to be given-
- Under a misconception of fact.
- Under fear of injury or hurt to themselves or any other person of interest.
- By a person who is of unsound mind or is intoxicated.
- By a child under twelve years of age.
Further explanation of consent is given in Section 375 of the Penal Code. Consent is described as an unequivocal voluntary agreement. Consent should be given either verbally or nonverbally through gestures.
However, in the age of online dating, it is better to consider only verbal express consent as valid forms of consent.
Why discuss sexual consent in dating apps?
Online dating has negative aspects as well. Because these apps can provide anonymity as well as require GPS locationing, they have also been breeding grounds for sexual harassment or worse.
According to a paper published by the Australian Institute of Criminology (Under the Government of Australia), one 2020 study analysed case files collected between 2018 and 2019 at an Australian metropolitan clinical forensic medicine service. Of the 76 case files for alleged sexual assault matters where the complainant underwent forensic examination, 15 percent involved an offender the victim had met on a dating app. Another survey analysed 666 college students with various sexual orientations from four universities in Hong Kong in 2015. This study reflects a trend seen worldwide, even in India.
Data from a 2020 Pew Research Center survey indicates that many women face harassment on dating services and apps. 57 percent of female online daters aged 18 to 34 stated they had received sexually explicit messages or photographs that they had not requested. This is also true for adolescent females aged 15 to 17, who have reported getting similar communications. All this data indicates the need to discuss and increase awareness of this issue.
Precautionary measures
Owing to the high incidence of abuse and breaches of consent in dating apps, it’s important for precautions to be taken-
- Users should understand the purpose of a dating or related app before using it.
- It is recommended to not share too many photographs and personal information in one’s profile.
- Caution should be exercised during communication through apps- sensitive personal information should not be shared.
- It is important to wait and check the credibility of someone before engaging in any kind of sexual activity with them.
- A few initial dates should be located in crowded public places- it is better to avoid isolated ones.
- At least one family member or friend should be aware of the specifics of the location where the partners have decided to meet.
- Consent should be given with absolute uncertainty. If one feels uncertain, it is better for the other partner to back away and talk it out. On the flip side, if one feels uncertain then it is absolutely alright to take a step back and say “no”.
Legal remedies in case of breach
In case, wrong happens to someone, Indian laws provide appropriate legal remedies. They are enumerated below-
Indian Penal Code, 1860
- Section 292– This Section penalises spreading or circulating obscene books, images etc. and gives a punishment of imprisonment that can extend up to two years as well as a fine of two thousand rupees.
- Section 354A– This Section describes and punishes sexual harassment. Harassment will include an act of a man involving unwelcome sexual advances, demands for sexual favors, sexually colored remarks and forcefully showing pornography to women. Punishment involves maximum punishment of rigorous imprisonment for one year.
- Section 354B– Punishment for assault or use of criminal force on a woman to disrobe her has been given in this Section. Minimum punishment has been ascribed as three years of rigorous imprisonment which can be extended to seven years. Fine can also be imposed.
- Section 354C– Voyeurism is penalised through this Section. Voyeurism is the act of watching or capturing images of women while they are engaging in acts done in privacy. Maximum punishment has been prescribed as seven years of imprisonment. Fine can also be levied.
- Section 354D– This Section penalises stalking. Stalking has been said to include following or making repeated contact with a woman against her will, monitoring her activities through the internet etc. Whoever commits the offence of stalking shall be punished on first conviction with imprisonment which may extend to three years, and shall also be liable to fine. For second and subsequent conviction five years of maximum punishment and fine has been prescribed.
- Sections 375 & 376– Sexual intercourse without consent will be considered rape as given in these Sections.
- Section 503– This Section can be applied in case consent has been forced by criminal intimidation.
Information Technology Act, 2000
The IT Act also enumerates and gives remedies to certain types of crimes that might take place through dating apps-
- Section 66E– This Section says that whoever intentionally or knowingly captures, publishes, or transmits an image of a private area of another person without his or her consent, in circumstances that violate that person’s privacy, shall be punished with imprisonment for up to three years or a fine not exceeding two lakh rupees, or both.
- Section 67- Punishment for publishing and transmitting obscene materials in electronic form has been described here. A person convicted of this offence shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
- Section 67A– This Section says that anyone who publishes or circulates any material containing sexually explicit act or conduct will be punished with five years of imprisonment (first conviction) or seven years (subsequent convictions) along with a fine.
In Majeesh K Mathew v. State of Kerala (2018), Mathew was accused under Section 67 of IT Act, 2000 and Section 354A of IPC. The Kerala High Court held that making comments on social media which contain sexually explicit content against a woman amounts to online sexual harassment.
Conclusion and the way forward
The need for increasing awareness of this is apparent. The initiative taken by various online dating apps to raise awareness on what constitutes valid consent is commendable. But stricter mechanisms must be implemented by the apps to ensure that people don’t become victims of harassment. Sayings like “there is a yes in a no” need to be systematically eradicated from the minds of people.
A major change that must be implemented is the transformation of laws to being more gender-neutral. Even when the IT Act is somewhat neutral, the Indian Penal Code is definitely biased, with its provisions framed to protect only women from men. It becomes important to acknowledge that women are not the only victims of online sexual harassment. That is an archaic notion that is extremely dangerous. Men are often victims of such crimes but their experiences hardly come to light and are generally ignored. Moreover, laws should not only be for the two genders. They should include and protect within their ambit all genders in the gender spectrum.
References
- Indian Penal Code, 1860
- Information Technology Act, 2000
- Mobile dating applications and sexual and violent offending, Kamarah Pooley and Hayley Boxall, Australian Institute of Criminology
- Will online dating amount to sexual consent?
- What Consent Looks Like
- Online Dating in 2021: Cyber Safety Precautions for Women
- What Is Sexual Consent? | Facts About Rape & Sexual Assault.
- The darkest side of online dating.
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