By Nakshatra Gujrati & Nayana KB
Abstract
This research report explores the concept of consent under Section 375 of the Indian Penal Code, which deals with sexual offences. The report provides a comprehensive analysis of the current legal framework in India, highlighting its strengths and weaknesses. The report focuses on the various aspects of consent, including its definition, requirements, and limitations. It also examines the cultural and social context surrounding consent in India, and the challenges faced by survivors of sexual violence. The findings of the report suggest that while the law recognises the importance of consent in sexual offences, there are still significant challenges and limitations that need to be addressed. Specifically, the report highlights the need for a more comprehensive and accessible education on consent, better support and services for survivors of sexual violence, and a shift towards a consent-based approach that recognises the importance of affirmative and ongoing consent. The research report focuses on contemporary debates like de criminalising consensual sex among juveniles & marital rape.
INTRODUCTION
In India, consent is a crucial element when it comes to sexual assault laws. The definition of consent is outlined in the Indian Penal Code, which is the primary law governing sexual offenses in India. As per Section 375 of the Indian Penal Code, rape is defined as sexual intercourse with a woman against her will, without her consent, with her consent obtained by coercion or deception, or with her consent being given under circumstances where she is unable to understand the nature and consequences of such consent. In other words, consent means voluntary agreement to engage in sexual activity. It must be given freely and with full understanding of the nature and consequences of the act. A person who is incapable of giving consent, either because of mental or physical incapacity or because of being under the influence of drugs or alcohol, cannot give consent. In addition, the age of consent in India is 18 years. This means that sexual activity with a person under the age of 18, even if they appear to give consent, is considered statutory rape, which is a criminal offense. It is essential to understand that consent can be withdrawn at any point during sexual activity. If a person expresses their unwillingness or discomfort, the other person must stop immediately, failing which it can be considered sexual assault or rape.
Research methodology
The method used in this paper is doctrinal method of research. The primary objective of the doctrinal method is to analyse and interpret legal sources in order to develop a comprehensive understanding of legal principles and their application to specific legal issues. This involves identifying relevant legal authorities, examining their content and context, and synthesizing them to create a coherent legal argument.
Objectives
- To examine the existing legal provisions related to sexual assault, rape, and consent under Section 375 of the Indian Penal Code.
- To identify the gaps in the current legal framework with regards to the definition and interpretation of consent.
Research questions
- What are the key provisions related to sexual assault, rape, and consent under Section 375 of the Indian Penal Code?
- What are the challenges in obtaining and establishing consent in sexual encounters, and how do these challenges impact the legal framework?
- How have the legal provisions related to sexual assault, rape, and consent evolved over time under Section 375 of the Indian Penal Code?
Consent: introduction into the statutory laws
It was only in 1860, for the first time ‘rape’ was put in our legal structure. It would define rape as sex without consent, consent but obtained under fear of death or with consent under false pretence. It however did not consider it a crime when a husband raped wife without consent, which is a moot point now. Consent is not a theological concept but a genealogical one, where the victim is interrogated if she had consented to the conduct of the accused.
The infamous incident of Mathura rape case in 1972, brought the ‘consent’ to the frame and led to its interpretation. A young girl was raped by the policemen when she was in the custody, when filed a complaint by the family of Mathura, the highest court acquitted the accused, the reasoning of the court was ‘Mathura was habitual to sexual intercourse’, the courts took this to mean ‘consent’. Further reasoning given by the court in this case goes beyond one’s imagination: One of the Justice even went on to say that she did not raised any alarm whatsoever, meaning it was consensual. This interpretation of Section 375[1] was beyond the content. ‘Submission’ during rape is not consent under section 375, which is inferred by the courts. This led to a huge outrage among the women groups which subsequently led to amendment in the evidence act.
The 1983 amendment and inserting section 114A into the evidence act, changed the whole dynamics of ‘consent’. So far, the women had to prove that she had not consented to the sex, this amendment made the courts to presume that a woman is telling truth when she says she did not ‘consent’. This change made ‘consent’ a crucial and an integral part of rape. Many academicians, in an open letter tries to explain the difference between consent and submission, “Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent”. In Mahmood Farooqui v. State of NCT Delhi[2], the courts have interpreted the history of intimacy to be ‘consented’, further saying that the victim was ‘intellectually well versed’ but it is a vague interpretation given to the ‘consent’ under IPC. A ‘feeble no may mean a yes’, such considerations by the courts in matters of such a gravity has been highly criticised as it is going beyond the intent of the statute. This opens up the stage for many other instances like ‘no resistance’ as ‘consent’. It is not known how does a person reacts when put under such circumstances and to give such a wide interpretation puts the victim of such heinous crimes at the mercy of the accused and the judiciary. The judiciary has deviated farther than what has been provided under IPC[3]. It has been unambiguously put that the consent has to be unequivocally voluntary to participate in the specific sexual act. It has been distinctly attributed to the section of the law that merit of sexual consent. There is no need to examine the consent based on the feelings and opinions of a person accused. The merits set by the legislature are more objective in nature and the cases that have gone beyond have opened the floodgates to the victim blaming and scrutinizing the victim’s character when it comes to rape cases.
Indian Judiciary & Consent
The Indian judiciary has played a crucial role in interpreting the concept of consent in rape cases in India. Over the years, the courts have adopted a broad and progressive approach to interpreting consent, taking into account the unique social and cultural context of India. One of the most significant contributions of the judiciary in this regard has been the recognition of affirmative consent as the basis for determining whether sexual activity was consensual. Affirmative consent means that the person engaging in sexual activity must obtain explicit, voluntary, and informed consent from the other person before proceeding with the activity. This approach places the burden of proof on the person initiating sexual activity to ensure that the other person has given their consent freely and voluntarily. The judiciary has also recognized that consent can be non-verbal and can be expressed through gestures, body language, and other non-verbal cues. In addition, the courts have acknowledged that consent can be withdrawn at any point during sexual activity, and that the absence of physical resistance does not necessarily imply consent.
Moreover, the courts have also recognized that consent obtained through coercion, threat, fraud, or deception is not valid and does not constitute consent. The courts have also recognized that a person who is unable to give consent, such as a minor or a person who is intoxicated, cannot give valid consent. Overall, the Indian judiciary has adopted a progressive approach to interpreting consent in rape cases, recognizing the importance of affirmative consent and taking into account the unique social and cultural context of India. These interpretations have been instrumental in strengthening the legal framework for combating sexual violence in India.
Tukaram v/s State of Maharashtra: Rape in Custody
The Mathura rape case[4] was a landmark case in India that brought attention to the issue of custodial rape and the lack of justice for rape victims. The case involved a 16-year-old tribal girl named Mathura who was raped by two police officers in the Desai Ganj police station in Maharashtra in 1972. Mathura had gone to the police station to seek help in finding her brother who had gone missing. However, instead of helping her, the police officers detained her and raped her. Mathura reported the incident to the authorities, but the trial court acquitted the accused on the grounds that the rape could not be established since Mathura did not offer any resistance. The case sparked nationwide outrage, with women’s groups and human rights activists demanding justice for Mathura and reforms in the legal system to protect rape victims. The case was appealed to the Bombay High Court, which overturned the trial court’s decision and convicted the accused. The Mathura rape case was a turning point in the Indian legal system’s approach to rape cases. The case led to several changes in the law, including the introduction of a new provision in the Indian Evidence Act that placed the burden of proof on the accused in cases of custodial rape. Overall, the Mathura rape case played a significant role in raising awareness about the issue of sexual violence in India and the need for reforms in the legal system to protect rape victims. The case is often cited as a landmark case in the history of women’s rights and human rights in India.
Mathura to Nirbhaya[5]
The courts after have given very progressive judgements on rape laws as well as few patriarchal ones. In the case of State of Punjab v. Gurmit Sing & ors[6], that ‘rape is not just a physical assault but is a destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the rape victim.’ Which was definitely a progressive one but on the other hand in the case of Bhanwari Devi, who was worked for the women’s development project and during the same she challenged the practice of child marriage and as a consequence of that she was gang raped, the accused were acquitted on the vague ground that an upper-class man would not have defiled himself by raping a lower caste woman. Devi’s[7] struggle all her life for justice was never heard and it was only after the supreme court prescribed the Vishakha Guidelines, which laid down the norms to protect the women from sexual harassment in workplaces.
No Doesn’t Mean Yes!
During rape trials it is not surprising that defendant often argues that – ‘she though said no but it can be deemed as yes’. According to explanation 2 of section 375 IPC, “consent means an unequivocal voluntary agreement”. In 2017, the Supreme Court gave a flawed reasoning while deciding the infamous Farooqui case[8]. The facts are as follows –
“The prosecutrix, a US research scholar got introduced to the appellant, through one of her friends. On the day of the occurrence of the unfortunate event, she had called the appellant requesting him to arrange for tickets for one of the performances of the appellant. The appellant invited her to his house, but later on, the appellant informed her that he would be going to a wedding. When the prosecutrix finally went to meet the appellant, she found him in an intoxicated and lachrymose state. The prosecutrix hugged the appellant, asked him about the reason for his sadness. This was followed by a brief exchange of kisses. The prosecutrix was vocal about her unwillingness to go any further but the appellant forced oral sex up on her”[9].
The question arises – Whether a party can safely assume to consent of other? Or to rephrase it – does “no” means “yes”?
The court agreed with the argument presented by the counsel that a weak “no” from a woman might actually mean “yes.” Similar reasoning has been used by courts in other countries as well. For example, Judge Bland commented in April 1993 in the Victorian County Court that sometimes a woman might say “no” but mean “yes.” It has been shown in surveys and interviews that in some cases, women may say “no” when they actually mean “maybe” or “yes.” However, this cannot be considered as a general rule that applies in every case. This position is critical and can be termed as male chauvinistic.
The Unequivocal Definition & Reform of The Section
Explanation 2 in Section 375 of the IPC defines “unequivocal” as something that is clear and unambiguous. However, the question remains whether communication of consent that is unequivocal is equivalent to the affirmative model of consent, which states that a “yes” always means “yes” and a “no” always means “no”. Although Explanation 2 may appear to be similar to the affirmative model at first glance, this is not actually the case. The Justice Verma Committee recommended the insertion of Explanation 2 into the IPC based on the Canadian rape law, which requires the accused to prove that they took reasonable measures to ensure unequivocal consent for the specific sexual activity. However, the Mahmood Farooqui case demonstrates that Explanation 2 is prone to non-compliance and contravention unless an affirmative model of consent is adopted and implemented strictly. An affirmative model of consent would establish that consent has been granted objectively, emphasizing that the victim’s consent is specific and particular, rather than assumed wholesale. In R. v. Ewanchuk[10], the Supreme Court of Canada established that only a clear “yes” means “yes” and rejected the concept of implied consent in sexual activity. India’s rape laws do not currently incorporate an affirmative model of consent, but doing so would help ensure women’s right to control their bodies and promote gender equality.
What Steps Indian Courts Must Take?
India has attempted to adopt the affirmative model of consent, similar to the Canadian rape law, by defining “consent” as a “voluntary unequivocal agreement” in Explanation 2 of Section 375 IPC. However, this adoption has been done half-heartedly and could result in various loopholes. It is crucial that the accused not only take reasonable measures to determine whether the complainant was saying “no,” but also whether the complainant was not saying “yes.” In Canadian law, the accused cannot claim mistaken belief of consent if they did not take reasonable steps to ensure consent for the specific sexual activity. The accused must not only subjectively believe there was consent, but also ensure that they took reasonable measures to ascertain it. The concept of “taking reasonable steps” has also been reiterated in the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.
The Colorado rape law[11] mandates that consent must involve an act of cooperation, exercised freely and with knowledge of the act. By defining consent as “cooperation,” it ensures that it is an ongoing process throughout the sexual act rather than a one-time agreement that cannot be changed or revoked. This ongoing cooperation ensures that if a woman withdraws her consent during sexual activity due to excessive force or violence beyond her tolerance, she should be able to revoke her consent freely, even after penetration has occurred. If a woman withdraws her consent under duress or compulsion, any further penetration shall be deemed as rape. The landmark case of State v. Robinson in the State of Maine[12] upheld a post-penetration rape conviction by giving a liberal interpretation to Section 253 of the Maine Criminal Code. The court held that rape occurs the moment a person submits to sexual intercourse as a result of compulsion applied by the defendant.
The Juvenile Romeo & Juliet & Age of Consent
The section 375(d)(6) states that, if a woman is under the age of 18 and someone has sexual intercourse with her, no matter with or without her consent is deemed to have committed the offence of rape. Currently, the law in India would deem two consenting children under the age of sixteen guilty of sexual assault if they engaged in consensual sexual activity, as their consent is automatically invalidated by law. This provision has been criticized as hypocritical[13], as Indian criminal law recognizes that children aged seven to twelve can commit a criminal offense if they understand the nature and consequences of their conduct, while children aged thirteen and above are treated as adults regarding their ability to commit a crime. This suggests that Indian lawmakers believe that a fourteen-year-old child is mature enough to understand the gravity of a crime but cannot give valid consent for sexual intercourse. This prudish policy stance can also lead to the absurd scenario of one teenager being charged with rape even if the age difference between the two consenting teenagers is negligible, resulting in a minimum imprisonment term of seven years, despite the fact that they were friends, had safe sex, and were mature enough to consent to sexual activity. To avoid legal inconsistencies, it is suggested that the age of consent for minors should be revised. The Swiss Law provides an exception for cases where the age difference between the parties involved is three years or less, even though the legal age of consent is sixteen. Israel also has a similar provision where consensual sexual intercourse is legal if the child is between fourteen and sixteen years old and the age gap is less than two years. This approach ensures that children below the age of consent are not punished while still prohibiting sexual activity between adults and children. However, there may be borderline cases where the age difference exceeds the permissible level, and in such cases, judges must recommend counselling on safe sex for the children involved. Considering this, the apex court has held that it will be a gross miscarriage of justice, if a teenager is made to suffer for “indulging into intercourse with the consent”.
Marital Rape
The issue of criminalising marital rape has been a moot problem ever since the judgement of the Puttaswamy on privacy and upholding the bodily autonomy of a person. At present, if a husband has forceful sexual intercourse with his wife without her consent is not a crime under any statutory laws of the country. It is moreover an exception under IPC section 375, that if a husband has sexual intercourse with his wife above the age of 15 years, would not be considered as rape. Here the important thing to be considered is that it no where considers the ‘consent’ of the wife, it is immaterial if they are married. This is definitely against the bodily autonomy of the woman. The judgement of the courts in decriminalising adultery in Joseph Shine v. Union of India, has held that ‘sexual autonomy’ of a person is to be put at the highest pedestal than the institution of ‘marriage’. It also held that marriage should not be considered as license to have sex with the wife[14]. This is mere objectification of woman, which is totally against the privacy and dignity of a woman. The need to remove the marital rape exception was not taken up by the law commission of India in 2000. The basic issue with the marital rape is ‘consent’ is made immaterial which affects the fundamental right to equality, freedom of speech and expression and most of all the right to life and liberty. It outrightly denies the agency over their own bodies to woman. This is based on the old aged doctrine ‘Coverture’, which puts that no woman has individual legal identity after marriage, this same doctrine had been the basis of adultery, which the Supreme court has struck down. Section 497 of IPC based on doctrine of coverture, similarly the case of marital rape. The need of the hour is to afford the husband and wife separate and independent legal identities. ‘Consent’ be given the importance as it is given in case of rape cases.
Sex by abuse of authority
Section 376C of IPC provides that when the accused is the “superintendent or manager of jail, remand home or other place of custody established by or under any law for the time being in force or a woman’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such custody to have intercourse with him, it will not amount to the offence of rape, shall be punished with imprisonment of either description for a term which may extent to five years and shall also be liable to fine.” This outrightly rejects the offence to classify as a rape[15]. The rationale behind this offence ‘not amounting to rape’ is that the victim has no choice but to unwillingly consent to intercourse, due to the inherent power imbalance. This is sex by abuse of authority (SAA). The consent of the victim in such cases is ‘supposed’ to be given, and since that consent was not free of her will, the accused will be punished. This reasoning is based on a vague premise of interpretation of ‘consent’ as provided under IPC. It has been clearly provided that the consent has to be voluntary and should not be the result of force of fear. This ‘unwillingly consented’ is a judicial fiction. The provision of section 376C is vaguely worded and has no legal justification. This is a colonial provision with the theoretical backing that reinforces rape myths.
Section 376C: A statutory Conundrum
This section specifically deals with the “fiduciary relationship”, will be criminally liable if they abuse the trust reposed upon them to ‘induce or seduce’ the women under his influence to have sexual intercourse. The contention in this section is the ‘Not amounting to rape’ part. The punishment provided under this section is less than that of rape.
Catharine MacKinnon stated “Rape expresses social inequalities motivated by hierarchies, and it is the case in fiduciary relationships, with significant trust and respect placed in the influencing figure. Thus, the fiduciary has to act in the best interest of the weaker party, who is emotionally vulnerable.” The power relation in these cases is “illegitimate pressure” to compel the women to consent. Given the subordinate position, the victim is wary about refusing the offer would be extremely costly for her, thus she warps her opinion and stupefies. She losses her agency and reluctantly gives into the fear of retaliation. It is to be noted that such sexual acts are often as painful and mentally disturbing as rape, and both include the violation of sexual autonomy of a person. On the recommendations by the Justice Verma committee report[16], Section 376C was inserted to deal extensively with the issue of SAA[17].
What the judgements fails to understand is that the refusal to engage in sex is a vulnerable individual, which is followed by abuse of authority and finally concludes with the unfortunate and involuntary submission to sexual intercourse. Yet, the one was considered to be rape and the other as not. There exist no proper guidelines as to when to refer to Section 376C, sex by abuse of authority not amounting to rape and Section 376(2)(f) which is for rape by a fiduciary[18]. This puts a huge burden on the victim, as in rape cases over the precedents, the consent is assumed to be not given and it is upon the accused the burden to prove that there was consent. But when a case is registered as a non-rape case under Section 376C, it puts invariable burden on the victim to prove the non-consent to the sexual intercourse[19].
This raises question for the insertion of section 376C and the justification for the same is not provided. Lack of any guidelines, puts the case into the discretion of the judiciary and the victim is at mercy of it. It is important to highlight that the usage of ‘consent’ under section 376C is very different from that of ‘rape’. It is necessary here that the consent is withholding and revoking, if there is submission even in absence of consent, it would be considered as a consensual sex not amounting to rape[20].
It thus becomes crucial to look into the necessities of the rape under Section 375 of IPC. It is crystal clear that it provides for ‘Both’ will and consent to consider it to be a consensual sex. In cases as previously discussed, there is no willingness of the victim to have sex, and moreover consent is taken under the due influence. It is in total contravention to the provision and there is no reason to deviate from section 375 of IPC. It further provides that the ‘consent’ how to be made. It is volitional on the part of the victim, active will and voluntary participation, which are clearly not the case under section 376C of IPC[21].
The wording of the section itself tries to put the other party at a weaker position. Instead of using ‘consent’ it has used ‘induce’ or ‘seduce’, this rules out any possibilities of ‘rape’ as the provision does not require it. It is very distressing to learn that the same act can be put either under section 375 or under section 376C, solely on the whims and fancies of the judiciary and the victim is put at its mercy[22].
This section also perpetuates the old rape myths. Many rape cases have shown that the act of rape, puts the victim in a dire situation which is followed by ‘frozen fight’ or non-response, leading to no active resentment. This lack of active resisting is enough to consider as a consent. Observations like ‘No’ when is not accompanied with active resistance is considered a ‘Yes’. It fails to accommodate cases where the physical resistance becomes impossible either due to the authority of the accused or due to the fear. There exists no legal justification for having lesser punishments for SAA and not same as rape cases[23].
The intent of the provision might be to deter the fiduciary having the responsibility to desist from sexual relationships with his subordinate. But it rarely seen to be the case[24].
Law Commission Report on Rape
The 172nd law commission report suggested many things to be inculcated into the IPC. One such suggestion was the insertion of section 376E, which read as:
‘Unlawful sexual contact (1) whosoever with sexual intent and without the consent of such person touches any part of the body with any body part or any object shall be punished with a term of imprisonment extending to two years or fine or both.’
(3) of the section provides that when ‘whoever’ is in a position of trust or authority towards a young person, who is in fiduciary relation of dependency, does the act will be punished with imprisonment of either seven years and fine.’
This flows from the reasoning that when an act is done by a person in fiduciary relation should attract more severe punishment than the act done by any stranger, as in the fiduciary relation, a person’s sexual autonomy isn’t the only things violated by also the trust reposed on him. The commission put forth the dire need to address the clear definition of ‘consent’ in rape cases[25].
Its one of the most significant contribution is the emphasis on shifting of the burden of proof from victim to the accused in case of sexual assault, that would mean that the ‘consent’ of the victim would be considered to be not present or if present it is vitiated due to other factors. It should also include the non-consensual sexual act, includes any oral sex, penetration or any such sexual activity performed without the victim’s consent[26].
Further recommendation to expand the definition of ‘consent’ to include the affirmative consent, clear and unambiguous expression of the willingness to engage in the sexual activity, highlights the importance of ‘consent’ in sexual activities. But it fails to address the issue of marital rape and the power dynamics in sexual relationships.
FINDINGS
Under Indian law, consensual sexual activity with a person under the age of 18 is considered a criminal offence. However, there have been several debates and discussions about the need to reform these laws, particularly in cases where the sexual activity is between two juveniles who are close in age.
In 2015, the Justice J.S. Verma Committee, which was formed to review and recommend changes to laws related to sexual offences, recommended that consensual sexual activity between two individuals below the age of 18 should not be considered a criminal offence, unless one of the parties is significantly older or in a position of authority or trust over the other. Despite these recommendations, the law remains unchanged, and consensual sexual activity between two juveniles under the age of 18 is still considered a criminal offence under Indian law. Marital rape is a violation of a woman’s fundamental right to bodily integrity and autonomy, and denying women legal protection against it perpetuates discrimination and inequality. Marital rape is a form of domestic violence, and denying women legal protection against it sends the message that violence within marriage is acceptable. The exemption for marital rape perpetuates the myth that women’s bodies are the property of their husbands and that they are obligated to have sex with their husbands regardless of their own wishes. Criminalizing marital rape would bring India in line with international human rights standards, such as the Convention on the Elimination of All Forms of Discrimination against Women, which recognizes marital rape as a form of violence against women.
CONCLUSION
Based on the research conducted in this report, it is clear that the issue of consent under Section 375 of the Indian Penal Code is a complex and multifaceted issue. While the law recognises the importance of consent in sexual offences, there are still significant challenges and limitations that need to be addressed. One of the main findings of this report is that the current legal framework in India does not fully reflect the principles of consent-based approach to sexual offences. For instance, the requirement of physical resistance or the failure to offer physical resistance in cases of sexual assault is problematic and not in line with international human rights standards. Furthermore, the absence of explicit recognition of affirmative consent and the inadequate definitions of consent in the law create ambiguity and confusion. Moreover, the report highlights the need for more comprehensive and accessible education on consent, particularly for young people, in order to promote a culture of consent and respect. Additionally, the report identifies the need for better support and services for survivors of sexual violence, including legal aid, medical care, and counselling. Overall, the findings of this report suggest that there is a pressing need for reform of the legal framework around consent under Section 375 of the Indian Penal Code. Specifically, there is a need to shift towards a consent-based approach that recognises the importance of affirmative and ongoing consent, as well as the need for greater support for survivors of sexual violence. It is hoped that the recommendations and insights provided by this report can inform ongoing efforts to reform the law and promote a culture of consent and respect in India.
RECOMMENDATIONS
Based on the research conducted the following recommendations can be made:-
- Re-evaluation of Section 375 of IPC: The existing legal provisions regarding rape and sexual assault need to be re-evaluated to include consent-based definitions. The current provision of Section 375 of IPC needs to be amended to reflect this change.
- Clear Guidelines for Consent: The government should develop clear guidelines for obtaining and establishing consent in sexual encounters. These guidelines should be made easily accessible and disseminated widely to ensure that everyone is aware of the legal implications of sexual assault and rape.
- Comprehensive Sex Education: Comprehensive sex education should be made mandatory in schools, colleges, and universities to ensure that young people are aware of their rights and responsibilities with regards to sexual consent. This education should include topics such as sexual health, reproductive rights, and consent.
- Decriminalization of Consensual Sex of Minors: The criminalization of consensual sexual activity between minors should be re-evaluated, and the law should be amended to reflect the age of consent. This will ensure that young people are not punished for engaging in consensual sexual activity with peers of a similar age.
- Marital Rape should be criminalized: The law should be amended to include marital rape as a criminal offense. This will ensure that women are protected from sexual violence, and perpetrators of such crimes are punished.
[1] Indian Penal Code, 1860, Act No. 45, Acts of Parliament, 1860 (India).
[2] Mahmood Farooqui v. State of NCT Delhi, 2017 SCC Online Del 6378.
[3] Indian Penal Code, 1860, Act No. 45, Acts of Parliament, 1860 (India), §. 375.
[4] Tukaram and others Vs. State of Maharashtra, AIR 1979 SC 185
[5] State vs. Mukesh & Ors., 2017 SCC OnLine SC 22
[6] State of Punjab v. Gurmit Sing & Ors, 1996 AIR 1393
[7] Vishaka and others v. State of Rajasthan and others, AIR 1997 SC 3011
[8] Mahmood Farooqui v. State of NCT Delhi, 2017 SCC Online Del 6378.
[9] Ibid.
[10] R. v. Ewanchuk (1998), 13 C.R. (5th) 330.
[11] Colorado statute, §CRS 18-3-402.
[12] State v. Robinson, 72 A.2d 260.
[13] Geeta Pandey, Age of Consent: Why is consensual teen Sex is Punishable in India (BBC, Dec 14, 2022), Age of consent: Why is consensual teen sex a crime in India? – BBC News.
[14] Michal Buchhandler-Raphael, The failure of consent, (2011) 18 Mich J. Gender&L, 147-150.
[15] Stephen Schulhofer, Taaking sexual autonomy seriously, (1992) Law and Philosophy 35-36.
[16] Js Verma Committee Report, Amendments to criminal law (2013) 75.
[17] Catharine MacKinnon, Rape: on coercion and consent, (1996) Application of feminist legal theory 471.
[18] Linda Jorgenson, Sexual contact in Fiduciary relaitionships, John Gownsiorek, 239-240.
[19] Andrew Ashworth, Interpreting Criminal Statute, (1991) 107 LQR 419-420.
[20] Apoorva Mandhani, What is sexual intercourse not amounting to rape that Chinmayanand is accused of, ThePrint (Mat. 15,2023) https://theprint.in/india/what-is-sexual-intercourse-not-amounting-to-rape-that-chinmayanand-is-accused-of/294762/.
[21] Michal Buchhandler Raphael, Sexual abuse of power, (2010) 21 U.Fla JL & Pol’y, 117-120.
[22] Swami Chinmayananda v. State of Uttar Pradesh, (2018) SCC OnLine AII 888.
[23] Phyllis Coleman, Sex is power Dependency Relationships, (1988) 53 Alb. L. Rev. 95-96.
[24]Ashwaq Masoodi, Acquaintance Rape: When Trust Turns to Torment, (Mar. 15 2023) https://www.livemint.com/Politics/D6RcYtPEqPcNBA8nnHck5J/Acquaintance-rape–When-trust-turns-to-torment.html.
[25] Rukmini Sen, Law Commission Reports on Rape, 45 JSTOR 81, (2010), https://www.jstor.org/stable/20787533.
[26] ‘Review of Raps laws’, (2020) 172nd Law commission of India.
