"Surrender Can Never Be Construed as Consensual Acts of Sexual Intercourse".: Kerala HC Upholds Conviction Of A Rape Accused [Read Judgment]

The Kerala High Court has observed that only those sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.

The case against the accused was that, on a Sunday in the month of February 2009, and on various subsequent days, he committed rape on the victim girl, a minor aged 14 years belonging to a Scheduled Caste, and impregnated her. The Trial Court held him guilty of the offence punishable under Section 376 of the Indian Penal Code. The Trial court found that the prosecution has not proved the age of the victim girl and failed to establish that the case is one that falls under the sixth description in thed definitionof 'rape' in terms of Section 375 of the IPC as it stood then. 

In appeal, the accused contended that the evidence tendered by the victim girl would show beyond doubt that the sexual intercourse was consensual. It was contended that the victim girl has admitted that she used to go to the house of the accused as and when desired or required by the accused and had sex with him.

While considering this argument, Justice PB Suresh Kumar observed that mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent'. The Court said:

"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 said that the Sexual assaults including rape are therefore crimes of gender inequality. In social reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent cannot make it equal, the judge said. The bench also referred to a decision of the United States Supreme Court in Meritor Savings Bank, FSB v. Mechelle Vinson et al. [477 US. 57 (1986)], in which it was held that welcomeness and not consent, shall be the standard for sex that does not violate the rights of women consistent with gender equality.

"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 observed that the materials on record would indicate that the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse, the judge added.

While dismissing the appeal and upholding the conviction of the accused, the Judge also quoted Judith Lewis Herman, an American Psychiatrist and Researcher Traumatic Stress[from her book, Trauma and Recovery]:

"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-defense 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....."  

Case name: Thankappan P.K vs State Of Kerala
Case no.: CRL.A.No.564 OF 2018
Coram: Justice PB Suresh Kumar 
Counsel: Adv T.K.BIJU and Spl GP AMBIKA DEVI S 

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