A ‘Yes’ when drunk still means ‘No’: Bombay HC on consent for sex

While rejecting a bail application filed by a Pune resident charged of raping a colleague, the Bombay High Court said that consent given by a woman under intoxication or influence of alcohol cannot be termed as a ‘valid’ for sexual intercourse.

Justice Mridula Bhatkar dismissed the bail plea of the accused Abhinaya Sahi who allegedly gang raped ​a 24-year-old after spiking her drinks.

Sahi's advocate argued that the woman had consented to have intercourse with him, and had also consumed alcohol on her own will. However, the court said, “If a girl is intoxicated, it means she isn't mentally capable of giving ‘free and conscious’ consent. In case of rape, a ‘No’ from a woman means she is not willing, but if she says ‘Yes’, it should be free and conscious. Not every ‘Yes’ is covered under the ‘valid’ consent. If a woman is under intoxication or influence of liquor or any drug, then even though she gives consent, it is not consent. Also, rape committed under intoxication cannot be an ‘excuse’ for a man.”

While rejecting the argument put forth by Sahi on consumption of alcohol by the victim, the court said, “In case of rape, considering the social norms and culture of the family, the victim might not have disclosed that she had drinks. This does not mean that she has lied in every statement.”