Mainstream, VOL LIV No 19 New Delhi April 30, 2016
Reflections on Consent
Saturday 30 April 2016, by
“[W]hen we abolish the slavery of half of humanity, together with the whole system of hypocrisy that it implies, then the ‘division’ of humanity will reveal its genuine significance and the human couple will find its true form.” — Simone de Beauvoir1
The age of consent in rape cases in India was raised from 16 years to 18 years through the Criminal Law Amendment Act, 2013. It led to many eyebrows being raised and not surpri-singly so since the global average of the age of consent still remains at 16 years and the legal age of marriage for girls in India is 18 years. Lack of consent is the basis on which rape is defined. Consent or the lack of it is the basis of judicial decisions in rape cases. Consent is a major legal issue in trafficking and sex work. As against traditional values, consent among partners in marriage is considered a must in the modern parlance. Today, we have also come to view moral policing of sex among consenting adults as intrusive and obnoxious. Consent, however, is not merely an issue of sexual consent. It can be considered a major gender issue with respect to decision-making within the family, especially concerning issues of reproduction in general, and pregnancy and contraception in particular. On Women’s Day, 2015, “Perspectives on ‘Consent’’’ was aptly chosen as the topic for a panel discussion at the Centre for Development Studies, Thiruvananthapuram.
Perceptions of Sexual Consent
In the international discussions on sexual consent, there are now accepted principles that past consent is not an indicator of present consent and that consent to one kind of intimacy does not mean consent to other kinds of intimacies. The right against sexual harassment is conceptualised as a right to one’s self-integrity. “Sexual consent is an understudied and undertheorised concept despite its importance ....”2 even in the West. Studies in the West in the heterosexual context point out that “young adults use more nonverbal signals and cues during sexual encounters than verbal ones”. The traditional sexual role for men has it that they should initiate sexual activity; verbally asking for consent is considered unromantic by men as well as women. On the other hand, women are “[s]ocialised to be limit-setters of relationships” and are more cautious and guarded about sexual consent as they are “more likely to be victims if these situations turn coercive.”3 Another empirical study points out that although there are possibilities for miscommunication of sexual consent, they are minimal since both men and women consider that “direct refusal is an unambiguous signal”. “Thus, it is unlikely that miscommunication about consent is a major contributing factor to acquaintance rape.” Miscommunication may, however, be used as an excuse for sexual aggression.4 Yet another study on sexual communication endorses this finding, “Males and females ... do not differ significantly with regard to perceived consent or rape.”5
In India, sexual harassment is viewed as a violation of the fundamental rights of gender equality under Article 14 and the ‘fundamental right to life and personal liberty’ under Article 19 of the Constitution and the right against sexual harassment is visualised as a ‘protec-tionist’ measure so as to ensure the right to equal participation as is implied in the legislative advances from the Vishaka vs. State of Rajasthan judgment in 1997 to the Sexual Harassment of Women at Workplace Act, 2013.
Empirical Evidence from Delhi
There has been an interesting empirical study on rape cases for the year 2013, conducted by TheHindu newspaper, in Delhi which is designated as the ‘rape capital’ of the country. It dealt with all 583 cases during the year 2013 decided by Delhi’s district courts—the first level at which rape cases are tried in India. Twenty per cent of the trials ended because the complainant did not appear or turned hostile. Of the remaining 460 cases fully tried, over 40 per cent dealt with consensual sex, usually involving young couples eloping and the girl’s parents subsequently charging the boy with rape. “This was especially true for inter-caste and inter-religious couples.” Another 25 per cent dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on little children in slums was the most common type of offence. These also included rare incidents of stranger rape cases such as the Nirbhaya case which were only 1/12 of the total number of cases.6
Going by this study, in an overwhelming 40 per cent of the cases fully tried, the mutual consent of the couple was overruled by the girl’s parents. These include many cases of teenage love often getting reported as rape thus curbing self-choice partnerships in ‘our cruel and dysfunctional society’. It is most unfortunate that with the raising of the age of consent in rape cases, the possibility of cases of teenage love getting reported as rape only go up. In cases of “breach of promise to marry” which constitute 25 per cent of the cases fully tried, the original consent from the woman, which is supposed to have been conditional, gets withdrawn with retrospective effect. “Frankly I think this shouldn’t be counted as rape. It comes from a patriarchal context, from the premium placed on a woman’s chastity. But if we want to talk of women’s agency, we cannot have it both ways,” says lawyer and leading women’s rights activist Ms Vrinda Grover, reflecting a sentiment shared by several other women’s rights lawyers.7 Following the Nirbhaya case of gangrape in Delhi in December 2012, a large number of cases of “breach of promise to marry” have been filed in the nearby Vasant Vihar Police Station by the girl students of Jawaharlal Nehru University, New Delhi.
Light of Reason from the Courts
The Bombay High Court judgment by a woman judge, Mridula Bhatkar, in Mahesh Balkrishna Dandane vs State of Maharashtra 8has been very significant in such cases as mentioned above:“Today the law acknowledges live-in relation-ship(s). The law also acknowledges a woman’s right to have sex, a woman’s right to be a mother or a woman’s right to say no to motherhood.” “A couple in love may be having sexual relationship and realise they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed.” Section 376 of the Indian Penal Code relating to rape applies to breach of promise to marry in cases of an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing information on his first marriage to have sexual relations with a girl.
The aforementioned empirical evidence from Delhi shows that there is diversity in rape cases and in a majority of the cases studied, the charges have not been genuine. However, it is devastating for those falsely implicated of this most hated crime. In the police stations and jails, patriarchal justice is meted out to the rape accused from underprivileged backgrounds, often in the form of third degree torture. It is relatively easy for a woman to legally harass or trap a man in a false case but the streets and homes still remain unsafe places for women. Enlarging the scope for false cases, however, is clearly not a solution to this dilemma. Raising the age of consent could have the unfortunate consequence of enlarging the scope for girls’ parents to frame teenaged boys involved in consensual relationships. However, if so many false cases are allowed to crop up, how can women having genuine cases lodge them fearlessly? In recent times, courts have expressed disgust at the large number of false cases of rape and have coined the term, ‘rape case survivors’ and even initiated perjury proceedings against those lodging false cases. Delhi High Court in 2013 expressed annoyance at rape cases being used as “a weapon for vengeance and vendetta”. This is not to deny that many a time, courts have demonstrated patriarchal attitudes in dealing with genuine charges of sexual violence.
Consent under the Brahminical Social System
Most of the panelists in the panel discussion at the CDS spoke of the power relations that operate in the process of generating consent: as social structures are imbued with power relations, there is inequality of power in relationships and consent is viewed with suspicion, as it may be induced. Neo-classical economists would speak of the problem of information asymmetry in this context. On the other hand, there was also the important argument that consent is not really something which is socially acceptable in Indian society and that it had to be given its rightful place. “The gift of a daughter” (by her father)9 in keeping with caste norms has been the accepted norm for marriage under the Brahminical social system of South Asia that overruled consent. Manusmriti denigrates relationships based on consent as based on mere infatuation, “The voluntary union of a maiden and her lover one must know (to be) the Gandharva rite, which springs from desire and has sexual intercourse for its purpose.”10
Another major dimension undermining consent was that historically, in the Brahminical social system of South Asia, the consent of women from the vast majority of the ‘Dalit-bahujans’ (to use the term employed by Kancha Ilaiah) was taken for granted. These women were left vulnerable to sexual assaults of men from the privileged castes that is, the twice-born castes, as these were considered anuloma [sexual relations] that were permissible (though strongly discouraged as a “folly” and cause of ‘degradation’) in the Manusmriti.11 This historical fact could also explain the silence of mainstream feminists about sexual violence against women of underprivileged castes as they consider it a caste/class issue rather than a gender issue. On the other hand, our Smritis awarded the severest of punishments like the most painful death penalty to men of the Dalitbahujan castes even for minor sexual offences against a woman of twice-born castes, as it was considered a pratiloma [sexual relation] that was most offensive. Manusmriti (VIII: 374) rules, “A Sudra who has intercourse with a woman of a twice-born caste (varna), guarded or unguarded, (shall be punished in the following manner): if she was unguarded, he loses the part (offending) and all his property; if she was guarded, everything (even his life).” On the other hand, “A Brahmana who approaches unguarded females (of the) Kshatriya or Vaisya (castes), or a Sudra female, shall be fined five hundred (panas); but (for intercourse with) a female (of the) lowest (castes), one thousand.”12 In the Brahminical eugenics, such penalties could have been a means to prevent “the confusion of the castes (varna)”13 but if we consider the historically penurious status of the Dalitbahujan women in the social hierarchy, these penalties could have made little difference to their vulnerable condition.
The Brahminical social system fiercely guarded the honour of the women of privileged castes and as a result, a false sense of honour was instilled into their minds. Bheem’s ravages against Duhsasana whose chest was ripped apart and against Jarasandha who was torn apart by his legs were supposed to have been done for the sake of the honour of Draupadi. These images being so well embedded in popular culture, we also come across the Draupadi-brand feminism even today invoking the excesses of patriarchal justice. A fundamental shift from the historically hegemonic norm of anulomas and pratilomas14 has not taken place despite the arrival of top-down transformations through colonial modernity and a liberal democratic state on the one hand and bottom-up transformations through social and political movements on the other.
Mainstream feminism in India gives a lot of emphasis to sexual self-determination entailing control over one’s body and would be averse to a casteist reading of the gender issue. Although this argument rightly opposes a reduction of gender issues to a caste angle, it overlooks the crucial fact that majority of the women in India who hail from the Dalitbahujan castes did not, historically, have control over their bodies as men from the privileged castes had almost unhindered access to their bodies.
As a concluding note, it is agreed that genuine consent is possible only in a society where substantive equality exists. This, in turn, is a powerful argument in favour of socialist feminism. The struggle for socialism is bound to be a protracted one, given the contemporary world scenario. In the interim period, if we are to move towards the goal of democratic gender relationships, it is very important to give consent its due place in a society such as ours where as of now consent is not a socially accepted norm and measures like raising the age of consent thus criminalising teenage love, is quite contrary to achieving this end. Relationships based on consent are gaining ever greater legitimacy in India today. In this social context, enlarging the scope for false cases of rape whether from the girl’s parents or from women themselves can, by no means, be a solution to making the streets and homes safer places for women. It also needs to be added that in contrast to the international context, the crucial specificity of legal permissiveness to anuloma sexual relations and violent prohibition of pratiloma sexual relations under the Brahminical patriarchy cannot be overlooked in any discussion on consent in our country.
[The author thanks the panelists, especially, T.K. Sundari, J. Devika, and A.S. Ray and the participants in the discussion, ‘Perspectives on Consent’ held at the CDS on the Women’s Day 2015.
He also thanks Mythri Prasad for critical comments on an earlier draft.]
1 Simone de Beauvoir, 1993: The Second Sex, David Campbell Publishers Ltd., London, first pub. 1949, p. 767.
2 Melanie A. Beres, 2007: “‘Spontaneous’ Sexual Consent: An Analysis of Sexual Consent Literature”,
Feminism and Psychology, vol. 17, no. 1, February, pp. 93-108.
3 Terry Humphreys, 2007: “Perceptions of Sexual Consent: The Impact of Relationship History and Gender”, Journal of Sex Research, vol. 44, no. 4, December, pp. 307-15.
4 Susan E. Hickman and Charlene L. Muehlenhard, 1999: “By the Semi-Mystical Appearance of a Condom: How Young Women and Men Communicate Sexual Consent in Heterosexual Situations”, Journal of Sex Research, vol. 36, no. 3, August, pp. 258-272.
5 Grace Y. Lima and Michael E. Roloff, 1999: “Attributing sexual consent”, Journal of Applied Communication Research, vol. 27, no. 1, pp. 1-23.
6 Rukmini S., 2014: ‘The many shades of rape cases in Delhi’, The Hindu, July 29-31.
7 Rukmini S., 2014.
8 Bombay High Court, Criminal Anticipatory Bail Application no. 27 of 2014.
9 Manusmriti: The Laws of Manu (1500 BC) translated by G. Buhler http://sanskritdocuments.org/all_pdf/manusmriti.pdf, III: 28-30.
10 Manusmriti, III: 32.
11 Manusmriti (III: 15) says: “Twice-born men who, in their folly, wed wives of the low (Sudra) caste, soon degrade their families and their children to the state of Sudras.”
12 Manusmriti, VIII: 385.
13 Manusmriti, VIII: 172, IX: 67, X: 12, 24, 40.
14 Manusmriti, X: 25.
The author is an independent researcher resident at the Centre for Development Studies (CDS), Thiruvananthapuram.