Rape and the complexities of consent

Monday, 16 December 2013 - 11:45am IST | Agency: DNA
Phobia of the law should make way for conscientious analysis

The time is now propitious, as he guesses,
The meal is ended, she is bored and tired,
Endeavours to engage her in caresses
Which are still unreproved, if undesired.
Flushed and decided, he assaults at once;
Exploring hands encounter no defence;
His vanity requires no response,
And makes a welcome of indifference.

                                                                               T.S. Eliot, “The Wasteland”, 235-42

“The melodramatic dilemma of besieged Indian men” – that’s what I had intended as the headline, angered as I was by the sexist writings of Messers Prasannarajan and Mehrotra, among many others. But then, it would have been quite disrespectful to whip out a smug response to the mostly absurd contentions of these crusaders for men’s rights, who frequently go by the moniker of MRAs (Men’s Rights Associations). Perhaps, given the constant drone of anti-feminism and misogyny that hums beneath much men’s activism, such knee-jerk defensiveness might have been understandable. But it would have been a disservice to the goals of feminism, which are about justice for all, not at the expense of any particular category.

Entrenched in rape culture, we stand in sombre remembrance of 16 December 2012 – the day that triggered off and culminated in a much deserved discourse on rape and a consequent change in the law. We also happen to be in the throes of turmoil brought about by Tarun Tejpal and Justice AK Ganguly through their allegedly reprehensible actions, and the vexing questions that have confronted us.

A woman’s “consent” to sex, or sexual advances or any sexual acts, has been an integral part of the debate, and a general consensus seems to have been arrived at: “no means no”, and “only yes means yes”. And this has the force of criminal law behind it. While such a vehement credo stands as a spectacular testimony to the manifestation of women’s autonomy, it comes with its own share of complexities. And when such complexities play out in the arena of the law, all the results are neither savoury, nor just.

Consider the Eliot quotation at the beginning of this article: is it consensual if his exploring hands encounter no defence? Is indifference sufficient to establish consent and if not, should his act be considered criminal rather than just boorish?

Ponder some of the questions raised by Katie Roiphe in The Morning After: Sex, Fear and Feminism on Campus. Though it was a much, and deservedly criticised work, it nevertheless provoked people to review “rape crisis feminism”, which elevated the truth of women’s claims of sexual victimisation to almost unimpeachable status.

Consider the story of Joseph in The Genesis. When the wife of Potiphar, the Pharaoh of Egypt, attempted to seduce him and he resisted her advances and fled from the spot, she accused him of rape, and he had to serve time in prison.

Think about those ‘intoxicated encounters’ where a woman is not too inebriated to have no clue what is being done to her, but is not sober enough to actively resist or object to sexual acts. Or, she goes along with certain acts of physical intimacy, but remains ambivalent to penile or other forms of penetration.

Also spare a thought for incidents which give ammunition to the men's rights zeitgeist in India – a woman consents to sex based on the promise of marriage, and later, if the nuptial knot cannot be tied due to unavoidable factors, the man is charged with rape because consent, in this case, is deemed invalid on the grounds that it was obtained by fraud.

Further complicating the crime of rape is the development of two distinct categories of rape: what some ironically call “real rape,” where the victim is attacked by a stranger, and “acquaintance rape”, where the victim knows the attacker. While many scholars and rape researchers recognise that acquaintance rape is by far more common than rape by a stranger, and often equally, if not more horrific for the victim, prosecutors are wary of bringing charges because of the unusually high attrition rate. Even the prosecutrix is in a bind – if the lack or absence of consent cannot be proved in the eyes of the law, she is blamed for having brought a false charge.

Another vexing issue is whether consent must be verbal or may be assumed from silence or from actions. Should the law impose upon women the obligation to speak up and say “no”, or should the law impose upon men the obligation to first hear the word “yes”? Requiring a man to obtain verbal consent comes close to criminalising sexual behaviour which might be considered “normal” in an age when permissiveness is giving way to liberalism. This school of thought is also aware of a stereotype in forming such a law – men are entitled to pursue sex till women, conceptualised as the gatekeepers of “virtue”, physically resist. And what extent of resistance would suffice for the law’s standards?

This “active resistance model”, or if one could include “refusal” within the circumference of resistance, was conceptualised back in 1628 when Lord Edward Coke, an English barrister, defined rape as “when a man hath carnall (sic) knowledge of a woman by force and against her will.” The flaw is, this considers rape as the action of a libidinous man, and not one to assert power and perpetrate violence. This model, which is followed in India even now, comprises two competing conceptions of consent.

Generically, to “consent” to sex in law is to acquiesce to the intercourse in some way, whether by virtue of doing so subjectively, objectively, or as a matter of law. Specifically, to “consent” to sexual intercourse in law is to acquiesce to it in one or more particular ways. These range across three pairs of contrasting conceptions.

First is “factual” consent versus “legal” consent. A woman “factually” consents to sex when, whether in mind or expression, she actually desires and chooses sex, or if she is sufficiently indifferent to leave this choice to others. What suffices as sufficient indifference, however, remains subjective.

Second is “attitudinal” consent versus “expressive” consent, based on contrasting ways in which a woman can actually choose sex for herself. For instance, in Canada, the law defines “consent” as a choice the woman subjectively experiences – as opposed to a choice she objectively manifests. In this, there is yet another category: consent as a particular manner of having sex. While the boundaries between peno-vaginal sex, anal sex and oral sex are a no-brainer, what happens in a situation like the one Julian Assange found himself in? One of the two women who pressed rape charges, though initially a bit awkward and hesitant at his expressions and actions of ardour, subsequently decided to play along, and even have sex.  Apparently, she withdrew consent mid-coitus, upon realising Assange was not using a condom, or there had been a ‘condom malfunction’ (we still do not know if such a malfunction was wholly or partially inadvertent, or deliberate.)

Hence, while not budging an inch on the principle of consent, both men and women, as comrades-in-arms striving for a more just and egalitarian society, need to engage with, even challenge, the complexities as outlined above.

In the choppy waters of the befuddling complexities of the “consent-only” rape law, how are men supposed to conduct themselves? 

As a man dwelling in the present society, somewhere I do appreciate the concerns that arise in men’s minds. But Mehrotra and Prasannarajan’s “phobia” are emblematic of the brand of masculinity that is steeped in patriarchy and has scant regard for women’s autonomy or agency. All one has to do is move with a healthy understanding and respect for women, not tread with caution against a “draconian” law or tiptoe in fear of “hysterical” feminists.

Saurav teaches Media Law & Jurisprudence in Mumbai and Pune. Follow him on twitter @SauravDatta29.

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