The question of consent

There are times when a woman’s consent in matters of sex cannot be viewed in black-and-white terms. Shades of grey creep in depending on the context. For example, she may have been too befuddled with alcohol to say “no”. Likewise, the consent for sex given in a workplace scenario where the man is in a position to advance or ruin the woman’s career could be open to question. It could be entirely voluntary, of course. But it could also be influenced by the unequal power balance between the two — the woman may acquiesce under pressure or out of fear and hence feel violated.

Law courts around the world grapple with cases that turn on the question of consent and the circumstances in which it is given — for non-consensual sex is another name for rape. Recently, India’s Supreme Court, too, handed out a judgment on this issue. In the case of Anurag Soni vs State of Chhattisgarh, a Supreme Court bench comprising Justices L Nageswara Rao and M R Shah ruled that sex on the false promise of marriage was rape and that the woman gave her consent only because the man promised to marry her. The judgment said “…such consent shall not excuse the accused from the charge of rape”. The apex court went on to sentence the man to seven years’ rigorous imprisonment.

The ruling appears to be pro-women, but, in fact, it is problematic on several counts. First, it seems to spring from the hoary notion that chastity before marriage is the norm for women, and the only reason a “good” woman would submit to pre-marital sex is if she has been given to understand that she would get to sanctify it by her marriage to the man.

Second, it leaves the field wide open for men to be slammed with rape charges each time they dump a woman. While a breach of promise and a shattered relationship can bring desolation and heartbreak to a woman, and perhaps a desire for revenge, too, there will now be a case for every aggrieved woman to claim that her intimacy with her ex was predicated on a false promise of marriage, and that the deception made her a victim of serial rape.

Our views on consent are often coloured by our value systems, our ideas of morality and of how a woman ought or ought not to behave

Third, in January this year the Supreme Court ruled that consensual sex between live-in partners does not amount to rape if a man goes back on his promise to marry the woman. In other words, the SC is clearly making a distinction between women in these two situations, looking upon a man’s breach of promise to a woman who has lived “in sin” with a kindlier eye than it does when the woman in question has committed no such outrage against tradition.

To be sure, the issue of consent is tricky. And our views on the subject are often coloured by our value systems, our ideas of morality and of how a woman ought or ought not to behave in a particular circumstance. Oh, she got herself drunk, what did she expect? Oh, she led him on, and now she claims it wasn’t consensual — these are some of the reactions that invariably muddy the discourse around consent.

Last year a Kerala nun accused Jalandhar bishop Franco Mulakkal of raping her on 14 occasions between 2014 and 2016 — a charge that was dissed by sections of the church as well as sundry politicians (ever the spirited defenders of patriarchy and its often brutish ways). There were comments that the “relationship” could not have gone on without her consent — an odious and spurious contention since the bishop is a powerful dignitary of the church and for a long time the nun was probably too afraid and intimidated to complain about his alleged crime.

The police filed a chargesheet against Mulakkal earlier this month and the case will likely grind on for years. However, if a soured relationship can be called out as protracted rape, it runs the risk of trivialising a case such as this one. There is sexual violence, there is rape; and then there are broken vows and deceptions women suffer at the hands of men. They can hardly be regarded as one and the same.

Shuma Raha is a journalist and author based in Delhi @ShumaRaha