Upholding the conviction of an elderly person in the case of a rape of a minor, the Kerala High Court has held that surrender cannot be construed as consent for sexual intercourse.
In its order, the High Court said in a country like India that is 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.
Justice P B Suresh Kumar gave the order on June 29 in an appeal filed by a man, now 67 years old, challenging his conviction by the Sessions Court, Pathanamthitta, in the rape and impregnation of a minor girl belonging to a scheduled caste in 2009.
In the appeal, the convicted man contended that the evidence tendered by the victim girl would show beyond doubt that the sexual intercourse was consensual. His lawyer also contended that the victim has admitted 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.
Dismissing the appeal, the High Court observed that the victim has given categoric evidence that while she was watching television one day, the accused closed the door of the house, pulled her to the adjacent room and had sex with her.
She was also categoric in her evidence that though she attempted to make a noise, the accused prevented her from doing so by closing her mouth using his hand, the Court observed.
Noting that the accused has no case that the first instance of sexual intercourse was consensual, the Court said the victim girl deposed that she did not disclose the incident to her mother due to fear.
Similarly, she deposed that she did not disclose the incident to anyone as she was afraid that the accused would do something to her mother and sister, the court said.
"In other words, it is clear from the materials on record that the victim was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim 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," the court said.
"It is now settled that mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, 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 court said.
Dismissing the appeal, the court also referred to the observation made on rape survivors by Judith Lewis Herman, an American psychiatrist and researcher on traumatic stress in her book 'Trauma and Recovery' that 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-defence 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.
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