The case of consent – on women related issues

Source– The post is based on the article “The case of consent” published in The Indian Express on 31th October 2022.

Syllabus: GS2- Mechanism and laws related to vulnerable sections

News- The article explain the issue of women alleging rape when long-term relationships come to an end.

What is the legal position?

Section 375 is related to rape. As per Section 375, a man is said to have committed rape if he has sexual intercourse with a woman “without her consent”.

It should be read with section 90. Section 90 provides that consent given under a misconception is not consent in the eye of the law. Hence, a woman who indulges in sexual intercourse with a man on the promise of marriage argues that her consent was accorded under the “misconception” that the accused was going to marry her.

Supreme Court has ruled that the alleged misconception created to obtain a woman’s consent for sex has to be close to the incident and not stretched over years.

What are the issues involved?

The law is being misused against the male sexual partners. It is being used as an instrument of arm-twisting, blackmail, extortion and disproportionate revenge. It causes immense harassment, including imprisonment, the financial burden of seeking bail to men who had no criminal tendencies.

Risk averse tendency of police in sexual offence related cases further exacerbate the problem.

It also results in an undue burdening of the criminal justice system.

Relationship dynamics are further undergoing a quantum change. Young men and women increasingly engage in casual dating and short-term sexual intercourse through social media apps.

A law that seeks to protect unmarried adult women from being deceived into sexual intercourse also appears patently paternalistic.

The law is also paradoxical to women’s sexual liberation and empowerment. This comes with both the freedom and the responsibility to own up to their choices and desires.

What is the way forward?

There is an urgent need to institute a system of detailed preliminary enquiry for such complaints before registering an FIR  to gauge the veracity of the allegations. This would help protect the genuine victims.