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The case for affirmative consent

The present definition of consent is couched in a language of negation, creates a problem in sexual assault cases

At present, we are shooting in the dark instead of working with a concretised definition of all that consent is.
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Exploring the contours of consent is complicated. It weighs on your mind. It pricks at your consciousness. It’s a latent hum you carry around all day without knowing its tune. It begs a few uncomfortable questions: How do we define consent? How does the law determine consent in a sexual act? Can we say submission is the absence of consent? Can silence be regarded as consent? Ordinarily, we would all agree that consent given under fear, force or duress is also not free or volitional consent. Consent is not parochial. It hinges on an active and conscious exercise of freedom and the ability to make a choice that is bereft of coercion. It is not a blanket immunity given to a series of acts but a form of reassurance given by you to your partner for each of the acts.

The Law Commission of India’s 84th report sheds light on why want of consent is a crucial determining factor in all prosecutions of rape. It elaborates how consent is the antithesis of rape and nuances of consent are unavoidable aspects that need to be explored in cases of rape and sexual assault. The substantivity of consent must, therefore, not be vitiated by circumstances that erode the freedom of choice. The report recommended substitution of the expression “free and voluntary consent” with an opaque “consent” as the law now holds. This would have helped in distinguishing consent from an assumption implied by silence.

In a setback to the discourse surrounding consent, the Delhi High Court, in the Mahmood Farooqui rape case held that a “feeble no” may mean a “yes”. When the Supreme Court upheld the Farooqui acquittal, the judgment banked on the presumption of consent because the victim faked an orgasm to bring an end to the sexual act. Had the aforementioned explanation been accepted, can we reasonably hope that the court, in the Farooqui case, would then have been persuaded to see the victim faking an orgasm as nothing more than a mere act of helpless resignation in the face of adversity? Would her passive silence be regarded as the absence of consent and accordingly, abolish the presumption of consent for future case laws to come?

Immanuel Kant founded a theory called Kingdom of Ends wherein he argued that rational beings should never be treated merely as means to ends but as ends in themselves. Kant says human beings are rational and their actions based on moral deliberation have reasoned motives that must be respected. From this, consent can be regarded as an act of reasoned deliberation weighing the good with the bad. Having said all that, we are still viewing a universal problem in the microcosm of India.

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India is not the only nation struggling to come to terms with it with the help of a statutory definition. The United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in Vertido v. The Philippines, recommended that the definition of rape in domestic legislation be amended to make lack of consent a central requirement of the law. The report proposed a new definition of consent that mandates an “unequivocal and voluntary agreement” necessitating proof of steps taken by the accused to ascertain whether the complainant was consenting and that the act did not take place under “coercive circumstances”.

In 2014, the state of California adopted an affirmative consent standard which is defined as “affirmative, conscious, and voluntary agreement to engage in sexual activity”. In July 2022, a government-appointed panel in Australia’s Queensland submitted a report based on the experience of women and girls to amend its existing laws on rape. The report recommended the new law include affirmative consent laws. But what does affirmative consent mean? The University of Suffolk defines affirmative consent as “informed, voluntary, and active through the demonstration of clear words or actions” wherein a person has given their permission to engage in consensual sexual activity. This definition goes on to specify that such affirmative consent can be withdrawn at any time.

“Neti, neti” is a Sanskrit expression, found in the Upanishads, that translates to “neither this, nor that”. It refers to what we are not. Similarly, the present definition of consent is an example of “neti, neti”. Bearing in mind the nuances of consent and the tricky situation it poses in prosecution of sexual assault against women, perhaps it is time India moved to an affirmative definition of consent. Such a definition would aid in plugging the loopholes that appear in the present definition of consent which is couched in a language of negation. At present, we are shooting in the dark instead of working with a concretised definition of all that consent is. The need of the hour is, therefore, a law that places a premium on consent as the deciding factor.

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The writer is an advocate practising at the High Court of Delhi

First published on: 07-12-2022 at 18:37 IST
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