Consent to Rape: Judicial Approach in Indian

Topics: Rape, Sexual intercourse, Human sexual behavior Pages: 13 (4819 words) Published: January 25, 2010
The word rape itself originates from the Latin verb rapere, which means “to seize or take by force”. The word originally had no sexual connotation and is still used in a very generic sense in the English language. Legally speaking, the word “rape” means “A criminal offense defined in most states as forcible sexual relations with a person against that person's will . As of the early 2000s, all states defined rape without any sort of reference to the sex of the victim or the perpetrator. Though the overwhelming majority of rape victims are women, (1) a woman may be convicted of raping a man, (2) a man may be convicted of raping a man,

(3) a woman may be convicted of raping another woman.
Furthermore, a spouse too, irrespective of the sex, may be convicted of rape if the perpetrator forces the other spouse to have non-consensual sex.(without her consent) But, many states do not punish the perpetrators in the cases of the rape of a spouse as severely as the crime of rape in cases of a non-spouse.(also no consent) Lack of consent is a necessary element in every rape case. But this does not qualify a person to make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or an incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex. The act of rape against a person who is below the statutory age of consent is known as “statutory rape”. Generally, When a man rapes a woman, it is assumed that he insults the victim and her family physically and emotionally. It is also commonly assumed that a man rapes a woman because he is driven to do so by his natural sexual desire. In other word, men strike and sexually attack women under uncontrollable impulses or a sudden urge to seek sexual gratification for themselves. Rape is a terrible act of violence. The act of rape is the absolute responsibility of the rapist for which he should be punished. This can be in the form of imprisonment or fine or both of these. Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were: (1)sexual penetration,

(2)force, and
(3)lack of consent. Women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. Beginning in the 1970s, state legislatures and courts expanded and redefined the crime of rape to reflect modern notions of equality and legal propriety. Now, in any allegation of rape consent is an important criterion on which this paper of mine is based on and this consent need not necessarily be expressed but also implied taking into consideration the relationship of the two parties involved i.e., a married couple. But however, the absence of objection to sexual intercourse itself does not constitute consent.

2.1 The Indian legal viewpoint of consent in rape:
Section 375 of the Indian Penal Code says that “ a man is said to commit “rape” who, except in the case hereafter expected, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (shortened) 1.Against her will.

2.Without her consent.
3.With her consent, but the consent is attained by threat of force or harm to her or someone she cares about. 4.With her consent, but the woman believes him to be her lawfully wedded husband when he actually is not, and her consent is given under such an assumption or belief. 5.With her consent, but due to unsoundness of mind or intoxication of her mind by any substance administered to her by the perpetrator...
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