Standard of Consent in Rape Law in India: Towards an Affirmative Standard

Abstract

This Article examines how rape law’s conceptualization of consent provides an objective standard to define the subjective experiences of rape survivors. It argues that because “consent” as currently conceptualized by the Indian legal system is often not a potent enough instrument to articulate the free choice of women in patriarchal societies, at the very least the standard of consent must be victim friendly to better preserve women’s sexual autonomy. The Article first provides a brief descriptive survey of the existing standard of consent in Indian rape law and its evolution from previous standards. It then contextualizes consent within Indian law and culture to argue that the current standard especially burdens victims and exonerates perpetrators of responsibility in sexual interactions. To provide such context, the Article analyzes a series of judgments, mythology, politics, penal statutes, and media representation to establish the prevalence of rape culture in India. It highlights a continuing system of misogyny where the same patriarchal institutions that make it acceptable for perpetrators to deprive women of choice during sexual intercourse further deprive them of agency during rape trials. Specifically, this Article reveals how rape adjudication, alleged rapists’ defense tactics during trial, and conversations surrounding rape in Indian courtrooms are replete with cultural rape myths and stereotypes. Having explained this context, the Article examines recent reforms in rape law to prove their inadequacy in realizing the rights of the victim. It concludes that the affirmative standard is a much-needed normative change to reduce legal ambiguity (almost always used to the detriment of the oppressed) with a more specific standard that discourages the implication, rationalization, and generalization of consent into existence when absent. Finally, the Article places this proposed reform within the context of a series of statutory reforms in rape law so far and concludes that it will further the feminist movement by extending rights to a target group of victims that the existing standard within Indian law excludes.