Clarity of ‘consent’ in rape law

The indictment hearing of the sensational Banani rape case is scheduled to begin on 9th July, 2017. This in turn marks an official courtroom-beginning of the case.

Consent, being the fact in issue in every rape case, requires legal scrutiny and attention in this particular case at hand as well. In relation to the filing of the case, the victims said to The Daily Star that they were invited as guests at a birthday party in Banani's The Raintree Hotel where they were allegedly raped (The Daily Star, May 7, 2017). Neither were the alleged rapists complete strangers to the victims, nor the victims unwillingly happened to be at the place where the offence was reportedly committed. These two things are equally important to those who, from a patriarchal standpoint, will blame the victims, depending on the age-old rape myths and stereotypes.  The judgment may and may not be in favour of the complainants. However, the underlying idea behind this endeavour is to 'legally' show how these two things may create a complication to get justice for the rape victims in general, given the present legal framework relating to the prosecution of rapes.

The Penal Code of 1860 along with the Prevention of Oppression against Women and Children Act 2000 don't give an inclusive definition of rape and make penile penetration sufficient in order to constitute the offence. This in turn makes the act of penetration necessary to the commission of rape too.

India has brought an amendment in 2013 bringing rape within a broader purview and under the title of sexual offence. This amendment has categorically brought various non-penetrative acts and acts which do not amount to penile penetration within the ambit of the same head of sexual offence. This amendment is said to be brought in the backdrop of the Nirbhaya gangrape case (2012) in which the laws fell short of addressing the particular brutality involved concerning the use of an object (an iron rod) in the commission of the offence.

Going one step ahead, another tremendous and praiseworthy change in the Indian laws was an explanation introduced thereto defining 'consent' exhaustively as an unequivocal voluntary agreement by a person to engage in sexual activity. The definition seems to be a 'yes means yes' approach taken by the Indian legislature providing an affirmative and unambiguous standard of consent. 'No means no' rape laws basically face criticism for requiring a verbal resistance on part of the rape victim. The critics often take this verbal resistance as to be on par with the archaic standards (i.e. physical resistance) often considered as an evidence to prove or disprove an act of rape. Such a requirement also puts a burden on the victim making them responsible to prove resistance on their part.

Keeping the thesis and antithesis of 'no means no' rape laws aside, apparently it seems that the philosophy behind not taking a negative approach in India was a conscious effort to keep marital rapes and postpenetration rapes (withdrawal of consent in the middle of an act of rape) outstanding. It was in tune with the section itself which has made marital nonconsensual sex an exception to sexual offence.

In Bangladesh, the idea of introducing postpenetration rape laws seems to be utopian when the existing law is more than a hundred year old and doesn't even define rape itself properly. However at least a definition of consent can be a lot helpful just to draw a line and break through the walls of stereotypes.

The Justice Verma Committee (December 23, 2012) assigned to put forward recommendations introducing the amendment in India, examined the law of consent in Canada and England and Wales. Under Canadian law, the accused cannot subjectively believe there was consent; he must demonstrate that he believed there was consent because he took reasonable steps to ascertain the same. Canadian standard seems to be really praiseworthy for us to take inspiration from. An objective, unambiguous and affirmative definition of consent at least would show that the statutes do not support the rape myths or stereotypes.

Moreover, law should not leave blatant loopholes and vagueness feeding the patriarchy involved in blaming a rape victim for her previous acquaintance with the accused, her presence and friendly appearance with the accused before the commission of the offence or her clothes.

Rape is an invasion of a human's body and hence a violation of bodily integrity and of sexual autonomy. Therefore, the existing statutory standard (or vagueness to be specific) in order to prove rape falls short of being in tune with constitutional rights of a woman as well. This area deserves legislative concern, now.

The writer is Law Desk contributor, The Daily Star.