The Kerala High Court recently held that a woman’s resignation to sexual intercourse when caused by fear or duress cannot be termed as “consent” as understood in law. Justice PB Suresh Kumar was hearing an appeal by a 67-year-old man convicted of having sexually assaulted and impregnated a minor from a scheduled caste.
He observed,
“In other words, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.”
Case background
The complainant, who was around 14 years of age when the act was committed, used to regularly visit the home of the accused to watch television. The man had a granddaughter who was around the same age as the complainant. One day, when the complainant was at the home of the accused, he forcibly had sexual intercourse with her. Just before the act, he had sent his granddaughter out to do some “shopping”.
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Despite the complainant’s attempts to yell, the accused continued, warning her against revealing his actions to anyone. The accused continued to have intercourse with her on other occasions as well, which the complainant did not disclose to anyone for fear of her mother and sister being brought to harm.
While the complainant averred that his act was without her volition, the man through his counsel argued that the act was consensual because “she used to go to the house of the accused as and when desired or required by the accused and had sex with him.”
The Court observed in case of sexual intercourse, “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.”
The judgment further stated,
“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.”
Referring to American Psychiatrist Judith Lewis Herman’s observations on rape survivors, Justice Kumar ends his judgment with a quote from her book “Trauma and Recovery”, where she writes,
“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…..”
The appeal was dismissed.
