How courts distinguish between rape and consensual sex: Adv Bharat Chugh explains

Chugh has been a former judge in Delhi and now practices as an independent counsel in various judicial fora, besides writing on law and complex legal issues.

What is consent in the context of sexual offences cases?

Chugh: Consent in the context of sexual offences cases means willingness and autonomy.

When do we say a relationship is consensual or non-consensual? Does it have to be explicitly expressed?

Chugh: We say a relationship is consensual when the parties (18 years or above), with their free mind and will, have agreed to get into that relationship. It need not be explicitly expressed in a particular terminology but has to be clear from the conduct of the persons concerned. Whether there was consent or not is a factual question that varies from case to case and that is the reason evidence has to be closely scrutinised by the court to arrive at the decision as to whether consent was there or not, and even in cases where there was consent, the court examines the extent of that consent, that is to say, to which acts did the consent extend to.

What are the key factors considered by courts to determine rape in such cases?

Chugh: The court looks at conduct of the parties and relationship both before and after the incident. In such an analysis, whatsapp messages, photographs, videos, social media accounts showing the relationship becomes crucial. This includes both before and after the act in question. The subsequent conduct after the act reveals whether the act was really consensual or not, and the presence of any complaint/grievance during or soon after the incident becomes crucial. The presence of injuries due to resistance, the delay in filing of a complaint are all relevant considerations.

The biggest set of cases these days in court are cases where a woman says that there was consent but consent was based on false promise to marry, that is to say, the boy promised marriage to girl and it was on basis of that marriage she consented to sexual intercourse, but the boy later not only didn’t marry her but also, it appears, never had the intention to marry her right from the start and made that promise with a view to get her to agree to have a sexual relationship.

This is very subjective and difficult to determine for a number of reasons. This has also opened the law to a lot of misuse where parties (18 and above) get into a relationship with their eyes wide open, later, as their relationship fails to work out, they try to weaponise the law by arguing that this was a case where the guy never wanted to marry in the first place.

The question “what was the intent at that point in time” then becomes a question of her word against his word. To start the criminal case, it is enough for a girl to say that she believes so. Since these offences are non bailable, soon after registration of a case, the police is empowered and, in most cases, arrests the boy. He then has to go to the jail and has to file for a bail, which sometimes is tough and then defend himself. In cases where the boy is lucky to have preserved some evidence of consent (not conditional on marriage) or evidence that both parties wanted to marry but later could not marry for XYZ reason, he’s able to present a successful defence in courts either at trial or at the high court stage asking for a summary quashing of the case. However, given how long these things take, the process ends up becoming the punishment in India.

I believe the law on ‘consent’ to sexual intercourse premised on false promise to marry should be completely relooked at. It has various problems. If a grown up woman gets into a relationship and later relationship does not fructify into marriage, she shouldn’t be allowed to argue that it is rape, retrospectively. These days young boys are afraid of getting into relationships, there are in fact people who are insisting on written explicit consent (not premised on marriage) as a precursor to a relationship to be able to defend themselves tomorrow if there’s a false charge.

This part of the law should be decriminalised or at any rate mitigated/diluted to be made bailable and non-cognizable, so that even if a false charge is made, the boy is able to defend himself and not go to jail and be stigmatised forever.

Can there be a mechanism at the police level to determine a consensual relation from rape?

Chugh: Till the above happens, as an immediately preliminary measure, given the extent of misuse is that what can be done is, prior to registration of the FIR, the police should do a preliminary enquiry to assess whether the case has any merit at all, both sides should be allowed to put their best case and demonstrate, and FIR should not be registered at all or any coercive step taken without the express permission of the court. This would be an important safeguard till the larger part of the objective – decriminalisation of this part of the law is achieved.