Surrender cannot be construed as consent for sexual intercourse: Kerala High court upholds conviction of 67-year-old man for rape of minor girl

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.

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 (Thankappan v. State of Kerala).”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.”Justice PB Suresh Kumar observed.

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.

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”.

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, however, observed, “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.

Since the case arose prior to the amendments to Criminal Law made in 2013 and amendments to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, the laws in question were the unamended Section 375 of the Indian Penal Code (Rape) and the pre-2015 Scheduled Castes and Tribes (Prevention of Atrocities) Act.

In deciding the appeal, Justice Kumar held that consent in the face of fear, duress, or compulsion could not be termed as ‘lawful consent.’ He said:

“… mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law…”

The judgment further states,”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.”Kerala High Court

Quoting from the Convention on the Elimination of Violence against Women, the Judge notes that sexual assault has historically been manifestations of unequal power relations between men and women, which has led to the former’s domination of the latter. Thus, sexual assaults are crimes of gender inequality, the Judge rules.

The Court cited the American case, Meritor Savings Bank, FSB v. Mechelle Vinson, to state that that ‘welcomeness’ and not consent is the standard that sex is required to meet so as not to violate the rights of women consistent with gender equality.

From the facts of the case, the Court concluded that there was nothing on record to prove the existence of “consent” as argued by the accused. The complainant had categorically stated that the accused had forced himself upon her in the first instance, the judgment records.

Rebutting the accused’s contention of his subsequent acts of intercourse being consensual, Court stated:”Insofar as it is established that the first instance of sexual intercourse spoken to by the victim girl was not consensual, it is immaterial as to whether the subsequent instances of sexual intercourse was consensual.”Kerala High Court

Since the accused was older and able to dominate the will of the complainant by reason of his being a “fatherly figure”, the Court observed,

“.. the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, … 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.”

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, therefore, dismissed.

Read Judgement

Published by Sneha Vishwakarma

Advocate, Bombay High court.

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