SURRENDERING TO A SEXUAL ACT IS VIOLATIVE OF THE RIGHTS OF THE VICTIM, AND CANNOT BE ACCEPTED AS CONSENSUAL- KERALA HC

Facts-
In the month of February 2009, on various days, the accused committed rape on a Scheduled Caste girl, who was 14 years. As a result of which she got pregnant.

Trial Court’s decision-
The Trial Court held him guilty under Section 376 of the Indian Penal Code. However, the prosecution failed to prove the age of the victim and has not established that the case falls under the sixth description in the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then.

Appeal-
In appeal, the accused contended that since 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 sexual intercourse with him, it is beyond doubt that the sexual intercourse was consensual.

Kerala HC observations-
Justice PB Suresh Kuma observed that “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.”

In other words the consent, on the part of a woman as a defence to an allegation of rape, involves voluntary participation, which should not only be based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

The Court while referring to FSB v. Mechelle Vinson et al. [477 US. 57 (1986)] said that “the Sexual assaults including rape are 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”.

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…..”- the judge observed while quoting Judith Lewis Herman, an American Psychiatrist and Researcher Traumatic Stress

Held-
The Court held that since girl was under a social and psychological hierarchical threat, the conduct on the part of the victim in surrendering before the accused as and when desired by him cannot be said to be consensual.

Case name: Thankappan P.K vs State of Kerala

Case no.: CRL.A.No.564 OF 2018

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