February 20th, 2017
The Bombay High Court on Friday observed that consent by a woman when she is intoxicated, will not be considered valid or ‘an excuse to commit rape’.
The court observed, “a woman, when intoxicated, is incapable of giving a free and conscious consent to a sexual relationship.”
“Not every ‘yes’ is covered as valid consent defined under section 375 of the Indian Penal Code. The term ‘without a woman’s consent’ has a wider meaning and includes a broader area of her wish to have sexual intercourse,” Justice Mridula Bhatkar was quoted as saying. She added that if a woman says “no” even once, it implies that she is unwilling. Likewise, if she says “yes”, then it must be free and unambiguous, for the incident to not amount to rape.
Justice Mridula Bhatkar was hearing the bail petitions of three youngsters from Pune, who have been accused of gang rape, kidnapping and abduction of a 24-year-old woman. One of the petitioners argued that on the night of the incident, the woman had four servings of alcohol after which he took her to his friend’s flat.
However, the woman had denied that she consumed alcohol knowingly. She accused that the petitioner had spiked her drinks and she had lost consciousness. Regaining her consciousness, she found herself in an apartment and saw the four accused laughing. She experienced severe pain and asked one of the accused if he had sexually assaulted her, to which he replied that she was gang raped.
Justice Bhatkar also observed that based on statements of the waiter at a restaurant and other witnesses, it was clear there were some discrepancies in the survivor’s statements, but the petitioner could not be granted any benefits owing to the same.
She said, “Considering the social norms and culture of the family, the victim might not have disclosed that she had drinks on that evening and therefore, she might have lied to that extent to her father to save herself, but it does not mean at this stage that whatever she has stated is a complete lie. Prima facie considering her post-rape conduct and physical condition, it appears that she did not want to have sexual intercourse and if at all she had consented to it, the said consent was not valid.”
Although the court rejected the main accused’s bail application, it was held that there is no prima facie evidence against the other two accused, only a statement by the victim that the main accused had stated that others were also involved. Hence, bail was granted to the other two people.
The Logical Indian appreciates the verdict of the Bombay High Court. While consuming alcohol is a choice, sex is also a choice; it cannot be forced upon anyone unless it is entirely consensual and unambiguous.