‘Surrender cannot be construed as consent for sex’: Kerala HC in rape case

The Kerala High Court on Tuesday dismissed a 59-year-old accused's claim of having consensual sex with a 14-year-old minor girl. The court further emphasized the understanding of sexual consent.

The Kerala Court on Tuesday dismissed the plea by an accused contending that the sex between him and the 14-year-old was consensual. The Kerala High Court on hearing the case on June 29th said, “Only the sexual intercourse that is welcomed can be ‘construed as not violative of the rights of the victim, and accepted as consensual,’

The accused, 59-year-old man was found guilty by a trial court of raping a minor 14-year-old girl multiple times in 2009. The girl reportedly belonged to the scheduled caste and was also impregnated by the accused. He was found guilty of the offense punishable under Section 376 of the Indian Penal Code (punishment for rape).

The male accused had filed an appeal saying that the evidence given by the girl would ‘show beyond doubt that the sexual intercourse was consensual’. He also claimed that she readily came to his house and had sex with him whenever he desired.

The victim, who was a Class 8 student, used to go to the house of the accused to watch television. The court noted that the accused took advantage of the situation and made sexual advances towards her.

According to law, a minor cannot under any circumstance offer consent for sexual intercourse. However, the Kerala High Court further emphasized the understanding of consent and what it really means.

What is consent?

According to Indian law, “Consent has to always be actively given and is never to be shown by way of gestures/looks. Any sexual act without the consent of a person or even with the consent of a person considered incapable under the law to give consent is considered a sexual offence.”

Justice PB Suresh Kumar in his statement observed, “It is now  settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence,
based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.”

He added: “In other words, the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied  with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to  withdraw the assent according to one’s will or pleasure.”

He further said: “Sexual assaults including rape are therefore crimes of gender inequality. 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.”

The victim’s categoric evidence

The court observed that the girl belonged to a poor social background and referred to the accused by the name ‘Thankappanachan’. It suggested that the accused was a fatherly figure to the girl, the court said.

“The victim girl has given categoric evidence that while she was watching television one day, the accused closed the door of the house, pulled her to the adjacent room and had sex with her. She was also categoric in her evidence that though she attempted to make a noise, the accused prevented her from doing so by closing her mouth using his hand.

The accused has no case that the first instance of sexual intercourse was consensual. The case put forward by the accused is only that the admitted conduct of the victim girl is going to the house of the accused as and when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual,” the judge said.

The victim had deposed that she did not disclose the incidents even to her mother due to fear. She was afraid that the accused would do something to her mother and her sister. “In other words, it is clear from the materials on record that the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse,” Judge Suresh Kumar said.

Verdict and Statement

The court dismissed his plea quoting American Psychiatrist from her book which said, “When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defence shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness.”

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