After the tragedy of the gang rape in Delhi on December 16, 2012, the Committee on Amendments to Criminal Law (The Verma Report) has submitted recommendations to the Prime Minister of India on reforming the laws on rape. The definition of legal consent to rape and sexual assault raises many challenging issues on the roles of men and women with respect to sexual activity.
The Verma Report provides a useful summary of the current state of Indian law on consent and draws on the comparative analysis contributed by Professor Sandra Fredman, Oxford University and Oxford Pro Bono Publico to make its recommendations on how to reform this challenging area of criminal law.
To make out the offense of rape under section 375 of the Indian Penal Code, rape must either be (i) against her will or (ii) without her consent. The courts have clarified that these are two separate tracks to proving rape: ‘against her will’ means the woman has resisted and there was opposition while ‘without her consent’ would comprehend an act of reason accompanied by deliberation (State of UP v Chottey Lal (2011) 2 SCC 550). The Indian Penal Code then elaborates on circumstances where it is deemed there is no consent: when it is obtained by threats to the safety of a third party, where the victim is mistaken as to the identity of her husband, there is a lack of a conscious mind or the victim is under 16 years old.
The Commission then examines the law of consent in Canada and England & Wales. Under Canadian law, the accused when charged with sexual assault cannot argue he subjectively believed there was consent. Rather, he must demonstrate that he believed there was consent because he took reasonable steps to ascertain consent to the specific sexual activity. In England & Wales, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. The law in England & Wales statutorily deems, in almost identical circumstances to India, where consent does not exist.
In Appendix 4, the Verma Committee sets out draft amendments to the Indian Penal Code which clarify the nature of consent. First, penetrative sexual activity is rape when a man induces the victim to consent by impersonating another. This expands the previous definition which only confined mistaken identity to marital relationships. Second, consent cannot be presumed because of any existing marital relationship between the parties. Third, the Committee adopts the Canadian reasoning and recommends the law require unequivocal voluntary agreement, verbal or non-verbal, to participate in the specific act. Finally, consent cannot be presumed because the victim does not offer actual physical resistance to the act of penetration.
The Verma Report’s recommendations substantially improve the legal position on consent. However, there are two remaining anachronisms which should be modified when the Indian government reforms the law. The pronoun ‘her’ should be replaced with gender neutral language in recognition that men can be victims of rape and sexual assault. Similarly references to ‘man’ in mistaken identity should be reframed in gender neutral terms. The Report continues with the two track approach to consent (i) against her will and (ii) without her consent. In spite of the specific recommendation that consent does not require physical resistance, also defining rape as ‘against her will’ continues to reflect ideas that victims of rape must behave in a certain manner for the offence to be made out. This should be removed in recognition that respect for sexual integrity and autonomy does not require the victim to fit into any stereotypes on how he or she should behave. The inconsistency in these two positions could create confusion and undermine the strong position the Verma Report takes on requiring positive consent to penetrative sexual activity.
The Verma Report makes some very important recommendations to reform the law and cultural attitudes regarding rape and sexual assault which hopefully will guide the Indian legislature when reforming the definition of consent.
Meghan Campbell is a DPhil in Law Candidate at the University of Oxford and contributed to OPBP’s submission to the Verma Committee.