Only the sexual intercourse that is welcomed can be 'construed as not violative of the rights of the victim, and accepted as consensual,’ the Kerala High Court said, while hearing a case on June 29.
The accused in the case was found guilty by a trial court of raping a 14-year-old girl, belonging to the Scheduled Caste, several times beginning in February 2009, and also impregnating her, reports the Live Law. He was found guilty of the offence punishable under Section 376 of the Indian Penal Code (punishment for rape).
The 59-year-old accused had filed an appeal saying that the evidence given by the girl would 'show beyond doubt that the sexual intercourse was consensual'. He also contended that she used to go to his house as and when he desired and had sex with him.
The victim, who was a Class 8 student, used to go to the house of the accused to watch television. The court noted that the accused took advantage of the situation and made sexual advances towards her.
It should be noted that minors cannot, by law, offer consent for sexual intercourse. However, the Kerala HC’s order also throws light on understanding what can be counted as consent and what cannot.
Justice PB Suresh Kumar observed that it is necessary to understand the concept of consent in the context of rape. He said, "It is now settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, requires 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 freely exercised a choice between resistance and assent."
He added: “In other words, the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.”
The judge further noted that violence against women, including sexual assaults 'are manifestations of historically unequal power relations between men and women, which has led to domination of men over women.'
He said: "Sexual assaults including rape are therefore crimes of gender inequality. In social reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent cannot make it equal.”
The court also referred to the poor social background of the victim, suggested by the name 'Thankappanachan' that she used to call the accused. It suggested that the accused was a fatherly figure to the girl, the court said.
"The victim girl has given categoric evidence that while she was watching television one day, the accused closed the door of the house, pulled her to the adjacent room and had sex with her. She was also categoric in her evidence that though she attempted to make a noise, the accused prevented her from doing so by closing her mouth using his hand. The accused has no case that the first instance of sexual intercourse was consensual. The case put forward by the accused is only that the admitted conduct of the victim girl in going to the house of the accused as and when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual,” the judge said.
The victim had deposed that she did not disclose the incidents even to her mother due to fear. She was afraid that the accused would do something to her mother and her sister. “In other words, it is clear from the materials on record that the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse,” Judge Suresh Kumar said.
He dismissed the appeal quoting American Psychiatrist and Researcher Judith Herman, from her book Trauma and Recovery. “When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness.”