Surrender Can Never Be Construed As Consensual Acts Of Sexual Intercourse: Kerala HC [Read Order]

“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…..” these observation were made on rape survivors by Judith Lewis Herman, an American Psychiatrist and Researcher on Traumatic Stress in her book, Trauma and Recovery.

Facts of the case:-

The accused was aged 59 at the time of incident and victim girl was a minor aged 14 years belonging to a Scheduled Caste. On a Sunday in the month of February 2009, and on various subsequent days, the accused 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 the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then. Sixth Description states rape of a woman with or without her consent, when she is under sixteen years of age.

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 deposed before the trial court 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.

Kerala High Court Judgment:-

While delivering the Judgment, the Kerala HC studied the concept of consent in the context of rape.

The Kerala HC said 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.

“The 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’ as understood in law and 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.”

The Kerala HC also referred to the US Supreme Court Judgment to define meaning of Consent, In Meritor Savings Bank, FSB v. Mechelle Vinson et al. [477 US. 57 (1986)], the United States Supreme Court held that welcomeness and not consent, shall be the standard for sex that does not violate the rights of women consistent with gender equality.

The Court while referring to above said 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.

Further, the Court observed that victim girl was under a social and psychological hierarchical threat since the victim girl deposed that she did not disclose the incidents to her mother due to fear and she also deposed that she did not disclose the incidents to anyone as she was afraid that the accused would do something to her mother and sister.

Finally, Justice P.B.Suresh Kumar dismissed the criminal appeal of the appellant & confirmed the conviction of the of the Rape accused. Also, he made the following important observations that:-

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.“

Case Name: Thankappan P.K. vs. State of Kerala

Read Judgment: Click Here

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