"Yes means Yes" - Arguing for an Affirmative Standard of Consent
- Kartik Hede
Consent is an integral part of a free society, where a person’s right to exercise control over their own body is respected and valued. This reverence, however, does not permeate our laws about rape and sexual assault. Consent in rape law is viewed through an objective lens that strips it of all emotion and context. Such an empirical gaze might find favour in ordinary law, which for the most part is impassive. But to use it in a highly individualized frame of reference, where facts make all the difference, is choosing to be oblivious to the lopsided dynamics of power that preside over such heinous crimes. The Indian Penal Code, 1860, lays down a negative definition of consent, which translates to the victim denying consent instead of the accused obtaining it. Introducing an affirmative standard of consent would deny many rape-accused the opportunity to wrongly take up the defence of consent. Furthermore, it ensures that women are not required to present their dissent in quantifiable terms in a situation where fear and violence often dissuade real resistance.
The prevalent standard of consent in India
§ 90 of the Indian Penal Code, 1860 (“IPC”) negatively defines consent. It states, that the determinations of IPC, what consent is not; it does not tell us what consent is. § 375 of the IPC entails a positive description of consent in cases of rape. To contextualize these provisions, it is essential to understand socially entrenched norms in India. Rape is not a crime of violence; it is an assertion of male dominance. Rape law in India is squarely set within the broader structures of power that enable men to use force over women and encourage women to “voluntarily” comply with patriarchal norms. The framing of rape law conveys the primitive impression that a woman is a passive object that merely “consents” to sex, rather than an active participant who engages in it.
By contextualising rape in the broader power differential, it is evident that often women proffer “consent” due to a lack of compelling alternatives, and the fact that such consent is safer in the face of potential violence. However, in adhering to an expressive view of consent, Indian law disregards the subjective aspect of such ordeals. And although the Supreme Court of India has held that a victim’s testimony is material enough to merit a conviction, subject to the satisfaction of the court, this benefit of the doubt does not percolate down to the lower courts, where victims are often subjected to harrowing cross-examinations and moralistic judgement.
Case in Point
In Mahmood Farooqui v. State (Govt. of NCT of Delhi), we have a perfect example of how the law chooses to place importance on denial of consent. In this case, the accused forced himself on the victim, who resisted his advances physically and verbally. Eventually, giving in to brute strength and her fears, she submitted to the attack. The trial court convicted the accused, but on appeal, a single-judge bench of the Delhi High Court overturned the judgement. Overlooking the contradictory defences put forth by the accused, the judge focused instead on whether the accused could reasonably infer that the victim’s actions meant a coherent ‘no’.
The law demands an unequivocal and voluntary agreement, which should have served as reason enough to uphold the conviction. However, the judge held that her lack of resistance and “feeble ‘no’” would not amount to a denial of consent. Furthermore, he created a separate standard of consent for “intellectual persons” and commented that in such cases mere reluctance would not amount to negation of consent. This judgement created a defence of mistake of fact, which is potentially devastating as it gives every rape-accused the chance to say that he interpreted the ‘no’ to mean a ‘yes’. This case serves to highlight the fact that a negative standard of consent presumes consent until it is denied, while an affirmative standard infers that there is no consent until it is given freely and in explicit terms.
An Affirmative Standard
The need for an affirmative standard of consent stems from the fact that to view a permissive sexual act as lawful, it is vital to identify that the permission has not been given out of fear or the power differential between the attacker and victim. This assertion assumes greater importance in a gendered society like India. An affirmative consent standard functions as a safeguard against the presumption that consent exists until denied. It also acts as a mental deterrent, forcing men to realize the gravity of their actions. Moreover, it interprets consensual sexual acts as both parties giving unambiguous and voluntary consent to their sexual relationship.
By introducing an affirmative consent standard, the law would rightly shift the burden of proof from the victim to the accused. Rather than having to show beyond reasonable doubt that there was vigorous resistance and denial, the focus will be on whether consent was obtained before engaging in sexual acts. In this manner, we account for the gross power imbalance that exists in such situations. Moreover, the “yes means yes” model of consent affirms a woman’s right to sexual autonomy and self-determination and behaves as a robust platform against defences that regard passive consent and weak resistance as a form of consent.
An affirmative consent standard is simply a means to an end; it is not the desired result. Rape is a crime of gender inequality. Placing emphasis solely on consent does not serve the larger purpose as consent operates within the broader structures of gendered power relations. We need a radical change in rape law that contextualises patriarchal norms entrenched in our society. The late Justice Ruth Bader Ginsburg said, “real change, enduring change, happens one step at a time”; an affirmative consent standard is one such step towards a more robust and encompassing rape law in India.
Kartik Hede is a third year student at Pravin Gandhi College of Law, Mumbai.
 The Indian Penal Code, 1860, Act No. 45, Acts of Parliament, § 90 (India).  Id, § 375.  Anupriya Dhonchak, Standard of Consent in Rape Law in India: Towards an Affirmative Standard, 34 Berkley J. Gender L. & Just. 29-68 (2019).  Martha Drakopoulou, Feminism and Consent: A Genealogical Inquiry in Choice and Consent: Feminist Engagements with Law and Subjectivity, (1st ed., 2007).  Louise Du Toit, The Conditions of Consent in Choice and Consent: Feminist Engagements with Law and Subjectivity, (1st ed., 2007).  Aparajito Sen, Consent In Indian Rape Law: A Case For An Objective Standard Of Determining Consent, Oxford Human Rights Hub, https://ohrh.law.ox.ac.uk/consent-in-indian-rape-law-a-case-for-an-objective-standard-of-determining-consent/. The State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.  Mahmood Farooqui v. State (Govt. of NCT of Delhi), 2017 SCC OnLine Del 6378.  The Indian Penal Code, 1860, § 375 (India).  Supra note 8 at p. 78.  Indira Jaising, Mahmood Farooqui's Acquittal Will Have Devastating Consequences for Rape Victims, Hindustan Times, Sept. 29, 2017.  Supra note 3 at p. 60.  Rosa Gavey, Affirmative Consent to Sex: Is It Enough, 3 NZWLJ 35-47 (2019). Lucinda Vandervort "Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory" (2012) 23 Colum J Gender & L 395 at 398.  Supra note 13 at 41. Catharine A. MacKinnon, Rape Redefined, 10 HARV. L. & POL'y REV. 431 (2016).  Supra note 13 at 44.