High Court of Kerala on Consent and Sexual Activity

Consent and Sexual Activity

In a Nutshell: Kerala High Court, in the case of Thankappan P.K. vs State of Kerala and Ors decided on 29th June, 2020, upheld the conviction of a rape accused and made specific observations regarding what constitutes as ‘Consent’ and held that surrender can never be perceived as consensual acts of sexual intercourse and consent has to be obtained freely.

FACTS:

In the month of February 2009, the Accused in the present matter, who at the relevant time was 59 years old, had allegedly committed rape on the victim girl, a minor aged 14 years belonging to the Scheduled Caste and impregnated her.

Before the Trial Court, the Accused was convicted for offenses under:

  1. Section 376 (rape) of Indian Penal Code (“IPC”) and sentenced to undergo rigorous imprisonment for 8 years and pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for 6 months.
  2. Section 3 (1) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo rigorous imprisonment for 4 years and pay fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for 3 months.

Accused was aggrieved by the conviction and filed Appeal before High Court of Kerala. He argued that since the victim herself admitted that she visited his house on multiple occasions as and when desired / required by Accused and had sex with him, the relationship can only be consensual.

HELD:

In order to determine the above contention on consensual relationship, the Court found it necessary to look at the concept of consent in the context of rape. It observed that, “It is now settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, 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. 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

The Court further observed that, “In other words, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.” The Court also relied on observations made by the American Psychiatrist, Judith Lewis Herman, “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” The Court effectively held that consent is not consent unless given freely and in view of the specific observations made, dismissed the Appeal filed by the Accused and upheld the sentence ordered against him by the Trial Court.

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