Akm18
Senior Manager (legal & Administration)-cum-
SATISH KUMAR DHANWAL
Sr. Manager (hr)ntpc Ltd., Noida

RAPE: FEAR IS NOT CONSENT

It is extremely difficult to prove that a woman has been sexually exploited against her consent. But a recent judgement has shown a ray of hope to the women. Read on…

For years it used to be believed that as long as a woman had not been forced against her will to have sex, her consent was a given thing. Under this definition, women’s rights activists and victims alike struggled hard and in vain to prove that rape had occurred. The victim had to go through a lot of demeaning cross-examination and medical check-ups to prove that her complaint was genuine.

Submission out of fear was not regarded in the victim’s favour. It was presumed that if the victim had not made her resistance evident in a very clear manner, it could not be taken cognizance of.

Now a landmark judgement made by the Supreme Court, the highest law of the land, has made the struggle less arduous for rape victims. As long as it can be established that the rape victim succumbed to the perpetrator’s advances on account of fear, her case need not fear dismissal.

In a significant judgement, the court has widened the definition of rape. Under the new definition, any consent to sex made under fear of terror cannot be construed as real consent.

In this particular case, 17-year-old Mango Ram had been accused of raping his sister’s 13-year-old daughter. The sessions court had acquitted him, saying the "evidence as a whole indicated that there was consent on the part of the victim to have the sexual act."

The Himachal Pradesh high court had also acquitted Mango Ram on the ground that the victim had consented to suffering the crime committed by Mango Ram. It did not interfere with the lower court’s verdict, holding that it was "neither perverse nor grossly wrong." However, the Supreme Court held the view that "Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances."

A bench comprising Chief Justice A S Anand, Justice R C Lahoti and Justice K G Balakrishnan explained that "consent for the purpose of Section 375 of the IPC required voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance and assent."

The Supreme Court’s verdict stated that, as a whole, the evidence indicated that there was resistance to the sexual act. But the apex court noted that the evidence as a whole indicated that there was resistance by the victim to the sexual act. "From the evidence on record, it cannot be said that the prosecutrix (the victim) had given consent," the court noted.

Women’s rights activists have welcomed the judgement for the far-reaching repercussions it brings in its wake. It is indeed commendable when the law uses its jurisdictional powers to such positive effect. The implementation of such laws should help to make the task of knocking on the doors of the courtroom easier for women

From India, Bahadurgarh
There are two essential elements of a Crime. One is ACTUS REUS ( an act forbidden by law) and other is MENS REA (state of mind). This is applicable under English criminal Law and not Indian Criminal Law. The clue can be found in the Mens Rea (mental state). This is what exactly the Hon'ble Supreme Court appreciated based on the evidence. It is a great art and science as well to read evidence. Every Judge tries to read the evidence but the results are always not the same. It ought to vary. Because no two persons can have the same bent of mind in assessment of evidence. That is primarily the reason Supreme Court views are most of the time at variance. Because they are richly experienced, have more acquired legal wisdom. I have all appreciation for the new angle with which the SC explored.It is perfectly in order. The crime was committed by the aggressor by paralysing the mental faculties of the girl/victim. This cannot by any stretch of imagination be termed as "free consent". The same intellectual wave length and logic applies to Contracts.

Regards,

Yours truly,

SATISH KUMAR

From India, Delhi
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