Continuing Consent: A “Yes” Is Not A “Yes” Forever
The notion of ‘No is no.’ has been discussed in pop culture as well as legal circles. However, law has paid less attention to the extent to which a ‘yes’ is valid. This article explores the concept of continuing consent within rape laws, and advocates for an expansion of the definition of consent so as to include cases in which the withdrawal of consent by a victim is also considered to be no consent for the offence of rape.
Definition of Rape and Consent under IPC/BNS
Rape is defined in the Indian Penal Code, 1860 in section 375[1] and the Bharatiya Nyaya Sanhita, 2023 in section 63.[2] The definition of rape under the Indian criminal law includes penetration, insertion, manipulation or applying of mouth into the vagina, the urethra or the anus of a woman by a man, in one of the seven given circumstances which are premised on the idea of consent. Consent is also defined within this section to mean “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 activity.”[3]
Judicial View on Rape and Consent
In the horrific Mathura rape case of Tukaram v. State of Maharashtra, the Supreme Court held that the onus of proving each ingredient of the offence of rape lies on the prosecution.[4] According to the court, in the instant case, the consent of the victim could not have been obtained by fear because the accused took away the victim from between her near and dear ones. Moreover, the lack of injuries on her person indicated to the court that the sexual activity was a peaceful affair and the consent was validly given. The court here interpreted the actions of the victim, which entailed a lack of physical resistance, as a valid consent in the eyes of law. Therefore, the court acquitted the accused in the matter, and thereby gave rise to a massive debate regarding consent in the country at that time.
Further, the court, in the case of Mahmood Farooqui v. State, acquitted the accused by situating the sexual activity in the context that both the parties knew each other from before, that the victim had initially consented to kissing and that both the parties were educated.[5] Importantly, the court gave consideration to the perception of consent from the point of view of the accused while acquitting him. By observing that the initial behaviour of the victim could lead to a reasonable presumption of consent in the mind of the accused, the court strengthened the notion that once consent is given for any activity of sexual nature it cannot be revoked.
This has been crudely put by the Rajasthan High Court in the case of Jarnail Singh v. State of Rajasthan.[6] The court said in this case, “If the woman consents prior to penetration, no matter how tardily and reluctantly, and no matter how much force had been used, the act is not rape.”
Cross-Jurisdictional Analysis of Continuing Consent
The case of Kaitamaki v. The Queen is believed to be the origin of the concept of continuing consent.[7] In this case, there were two acts of sexual intercourse out of which the first one was consented while the second one was in conflict. The victim argued that she had not consented to the second act of sexual intercourse and the accused did not cease the intercourse even after getting to know of the situation. In this case, the court held that intercourse does not begin and end with penetration. Intercourse is a continuing act which ceases only at the point of withdrawal. Thus, if the accused becomes aware during the act of sexual intercourse that the victim is not consenting, the accused must withdraw; otherwise, the accused is liable for rape.
The United States of America has also variously dealt with this concept. The Minnesota Court of Appeals adopted the position that the forcible continuation of sexual intercourse after the withdrawal of consent also comes within the ambit of rape.[8] The Alaska Court of Appeals also upheld a trial court instruction to the same effect.[9] In California as well, the court expanded the definition of rape to include the withdrawal of consent after penetration.[10] This, and the practice of four other courts in the US, shows that the courts have taken such an interpretation to be a valid interpretation under the existing law as well.[11] Apart from judicial interpretation, there is an example of legislative introduction of the concept of continuing consent as well. Illinois has become the first State to pass a statute which redefined “nonconsent” to include situations where consent was withdrawn after penetration.[12] This shows that legal frameworks have recognised the dynamic nature of consent and have started considering in seriously.
Way Forward: Yet Another Amendment
The sexual autonomy of a woman is characterised by her right to exercise her agency over sexual activities she participates in, with regard to her own body and desires. She has the right to make choices and draw boundaries, as and when she pleases or deems fit for the sake of her well-being. The criminal justice system ought to recognise that consent is not a static concept which is irrevocable once it is expressed at the first instance. Consent refers to a continuous process of mutual agreement between both the parties. It involves an element of communication and respect for the wishes of both the parties involved in the particular sexual activity. If the woman no longer wishes to continue the sexual intercourse, she is fully entitled to withdraw her consent.[13]
It is to solve this issue that the Parliament should amend the definition of consent to account for the fact that consent may be withdrawn during the course of the sexual activity as well. This means that the carrying on of sexual activity beyond such withdrawal of consent will also amount to rape. Such an amendment will incorporate the twin endeavours of putting the obligation of obtaining consent from the woman on the man, while also ensuring that the consent is not a one-time agreement but a continuous part and parcel of the concerned sexual activity.
Concluding Thoughts
While the amendment proposed above is a noble concept, it is still unfortunate that such a legal recognition is not sufficient to curtain the instances of rape and sexual violence against women. The law must put the responsibility of seeking consent on the man as well, in order to make it incumbent on him to ensure that the sexual activity taking place is with the full consent of her partner. Consent, in this case, is not merely about obtaining an affirmation from the woman in the beginning. Consent also entails a commitment to continuously ensure that affirmation throughout the course of the activity.
[1] Indian Penal Code 1860, s 375.
[2] Bharatiya Nyaya Sanhita 2023, s 63.
[3] Indian Penal Code 1860, s 375, expl II; Bharatiya Nyaya Sanhita 2023, s 63, expl II.
[4] Tuka Ram and Anr v State of Maharashtra 1979 AIR 185.
[5] Mahmood Farooqui v State (Govt of NCT of Delhi) (2017) CRL.A.944/2016 Del HC.
[6] Jarnail Singh v State of Rajasthan (1971) 1971 (4) WLN 651 Raj HC.
[7] Kaitamaki v The Queen [1985] AC 147 PC NZ.
[8] State of Minnesota, Respondent, v Raymond Timothy Crims, Appellant (1996) 540 N.W.2d 860 Minn. Ct. App.
[9] Tracy J. McGILL, Appellant, v State of Alaska, Appellee (2001) 18 P.3d 77 Alaska Ct. App.
[10] In re John Z., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. John Z., Defendant and Appellant (2003) 60 P.3d 183 Cal SC.
[11] Matthew R. Lyon, ‘No Means No: Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape’ [2004] JCLC 277.
[12] id, p 279.
[13] Catharine A. MacKinnon, ‘Rape: On Coercion and Consent’ in D. Kelly Weisberg (ed), Applications of Feminist Legal Theory (TUP 1989).