“Helpless Resignation” Is Not Consent, Said Kerala High Court In A Rape Case. Finally, Some Hope.
With the lack of uniformity across the school of thought our judicial system employs, we see a disparity between the treatments of similar crimes. Recently, Justice Krishna S Dixit granted bail to a rape accused on the grounds of the woman not seeming like a convincing rape survivor to him. He questioned how she fell asleep after she was raped and that it is “unbecoming of an Indian woman.” He further went to dissect her actions instead and questioned why she had alcohol with the man. Apparently, all of this was reason enough for him to grant bail to a rape accused. If a rape accused murders a rape survivor after he was leniently granted bail, is the justice system willing to take the blame? Men who are part of the culture that puts the blame on women and hold such a misogynistic mindset are responsible for dispensing justice. What can we expect the outcome to be?
But refreshingly enough, we also have men like PB Suresh Kumar who re-emphasised what consensual sex is and how nothing else can be justified. This happened when the Kerala high court was hearing an appeal filed by a 59-year-old pedophile who raped a 14-year-old girl multiple times at his home. She even got pregnant. In the end, he tried to say she voluntarily came to his place all those times. But the girl said it was out of fear that he will harm her mother and sister.
On this, Justice PB Suresh Kumar said: “In social reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent cannot make it equal.” Basically, consensual sex is when two people want it equally. You know how you and your partner are making love and never the question of consent has risen. But when a woman is being forced or manipulated into not resisting sex, that kind of “consent” is not consent after all.”
However, I would like to add that rape in marriage, relationships and dates also exist, wherein men just assume that they have consent. That assumption has often proved to be fatal, so the question of consent always exists. In fact, you may consent to certain sexual acts and not to some. With the lot we have here who thinks a woman’s no means yes, I really don’t know if we can rely on their ability to gauge whether a woman is consenting.
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Justice Kumar pointed out that “helpless resignation” cannot pass as consent. “It is settled law that mere act of helpless resignation cannot be deemed to be consent for rape, the court said citing 1958 and 2003 decisions of the Supreme Court (in Rao Harnarain Singh Sheoji Singh Vs. State and Uday Vs State of Karnataka),” Justice Kumar said. It’s a shame that we still have to explain consent repeatedly and unlike Justice Kumar, many lawmakers and authorities themselves are tone-deaf to it.