A victim’s submission to sexual assault does not mean consent: SC

August 04, 2015 02:38 am | Updated April 01, 2016 10:59 am IST - NEW DELHI:

Noting that rape is basically an assault on human rights, the Supreme Court on Monday said submission to sexual assault should not be construed as consent by the victim, but immobility caused by sheer terror.

Quoting judicial precedents, a Bench led by Justice Dipak Misra said in a judgment that ‘consent’ for sexual act required “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 fully exercised the choice between resistance and assent.”

The Bench said whether there was consent or not should only be decided by courts after careful study of the relevant circumstances in individual cases.

‘No watertight formula’

The apex court referred past rulings to reiterate that there was no straitjacket formula for determining whether “consent given by a victim to sexual intercourse is voluntary, or whether it is given under a misconception of fact.”

It said that tests laid down by courts in the past were best general guiding factors for the judge. The truth could be unravelled by a court only after considering the evidence carefully, all the while keeping in mind that the benefit of doubt favoured the suspect.

The court was looking into the case of rape of a 16-year-old girl by her uncle and a relative. Dismissing the appeals against their conviction, the court said, in this case, the victim being a 16-year-old, whether she gave consent or not was not relevant, and the offence was rape.

“It needs no special emphasis to state that once it is held that the prosecutrix [victim] is below 16 years of age, consent is absolutely irrelevant and totally meaningless,” Justice Misra wrote in the judgment.

She was helpless: court

The court said she was in a totally helpless situation and despite her resistance, she was sexually abused.

Rejecting a plea for a reduced jail term, Justice Misra observed in the judgment that the gravity of the offence did not deserve this consideration from the court.

“Regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual,” the judgment held.

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