Consent & crime in alleged rape cases


This is yet another follow on post on the recent Delhi High Court Judgment which was earlier misrepresented by news websites claiming that the judgment said “If the victim is menopausal, it is not rape” and later clarified by Firstpost saying that the judgment differentiated between forceful penetration (consensual) and forcible penetration (non-consensual).

Here is an article by Ms. Vrinda Grover, who is a Supreme Court lawyer, which is very relevant and which succinctly refutes the basis on which this judgment was made. The link of the judgment is here. And the link to the article by Vrinda Grover is here (as published by Indian Express).

The arguments that she makes against the said judgment, which appealed best to me are here:

1. The judgment assumes that since there were no other marks of violence on her body, apart from the ones in and around her genitalia, it is not forcible, but forceful penetration. Also being supported by the fact that the victim had traces of alcohol in her body which means that she consented to sex?

2. A passing reference to menopause without linking it either to the act of penetration / to the death seems out of place.

3. The post-mortem mentions that the reason for death may have been forceful penetration that led the food to enter her lungs and cause death by suffocation. In this context, what is consent? Can it be withdrawn, once given? Can consent be taken for granted in such extreme cases of death by suffocation due to forceful penetration?

Can consent be assumed because of presence of alcohol?

Is it practical / feasible or even remotely possible that the woman consented to this uncomfortable sex, where she was being suffocated? This, in fact, was pointed out by Saya of Saya..D..Poet in one of my earlier posts very aptly: If the act was not forced on her, she would not be so stupid to have intercourse just after having food. Also if she faced any problem, she would have stopped having sex altogether, or would have got up and went to basin ….done something rather than just lying down. So it seems either it was forced on her either when she was awake or passed out.

She died! And we call it consensual because there is no violence on other parts of her body?

Please read the article. It is definitely worth a read, to know the legal scenario surrounding consent in rape cases!

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14 thoughts on “Consent & crime in alleged rape cases

  1. anawnimiss says:

    To be honest, I don’t know what to believe. Part of me believes that the alcohol & menopause theory is a load of crap and that this is a huge cover up.
    But then I wonder why the court would do something like this. And then I go back to thinking about how a lot of women like kinky sex and consent to be humiliated, forced, suffocated, BDSM-style. And let’s face it, plenty of couples have sex after dinner because that is the only alone time they get.
    Of course that does not mean that it was not rape – we have no way of knowing that. But it does make me wonder if we’re overthinking this, you know!

    Like

    • A regular Indian girl! says:

      I understand what you are saying completely! But my only issue is that the woman lost her life! Surely, even in a consensual sex, she wouldn’t have allowed him to continue when it becomes uncomfortable! Because loving kinky sex or finding it pleasurable is one thing and allowing it to continue till it bursts your body parts apart is another!

      Plus, the man on being found out said that the woman was like his mother and was sleeping! And absence of violence on other parts of her body does not mean she consented!

      I also have a world of issues with the way our courts view “consent”. Hell, getting married is viewed as a lifelong consent for having sex and hence there is no such thing as marital rapes!

      May be we’re overthinking, but it is for the right purpose. More often than not, rape cases end up being the fault of the woman. Because she was wearing skirt / because she was drunk / because she was out late / because she had sex with the same person earlier / because she might have meant yes!! And that is what irks me very much!!!

      Wouldn’t you agree?

      Like

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