By Bhaskar Kumar
In a recent Canadian case, the Ontario Superior Court of Justice held that non-use of a condom against a participant’s wishes would amount to rape as it robs a partner of his or her liberty to engage in sexual relationship as per the agreed terms and conditions. In this case, the woman met Mr. Rivera online and they further decided to meet at the complainant’s home for a sexual encounter. She texted Mr. Rivera, and laid down two pre-conditions to sex; first that a condom was must and second that ‘no means no’. Mr. Rivera agreed to both these conditions. However during sex, Mr. Rivera proceeded to penetrate her vagina without wearing a condom despite several requests by the victim. While holding Mr. Rivera guilty of sexual assault, the court relied on the principle laid down in R.v. Ewanchuk,[1] which stipulates that a participant can consent to a sexual activity and can revoke it at any time during the sexual activity. In this present case, one of the conditions laid down by the complainant was violated by Mr. Rivera, hence the sex was no longer consensual. The consent to have sex has been revoked at the instant Mr. Rivera proceeded to penetrate without wearing a condom. Hence in this manner the sexual autonomy of the victim has been usurped.
Right to revoke consent during sex: The case of post-penetration rape and law
This case has crucial lessons for Indian rape laws which are ambiguous in situations where sexual activities take place violating the agreed terms between participants. There are certain cases where the other party revokes consents during sex but there has been no judicial precedent to address the issue. Similarly the act of stealthing is unaddressed in the Indian context. Rape has been defined in section 375[2] of IPC as-
“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
(1) against her will.
(2) Without her consent.
(3) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(4) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(5) With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(6) With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]”
Hence, the fundamental premise reflected in the rape legislation is that if sexual intercourse happens against the will of the women or without her consent then it amounts to rape. Now the issue is whether the provision provides for the right of revoking consent during intercourse. There has not been any express position of law on this point. So far the case laws and the Law Commission reports have been silent on the issue. There seems to be an inadequacy of understanding of the term ‘consent’ in legal parlance. The efforts to reform the rape laws in the past thirty years are far too significant to be covered in this space. Interestingly, the marital rape exemption has not been done away with despite efforts towards broadening the definition of consent. The Indian law is substantially influenced by common law notion that once consensual intercourse begins, a man cannot be prosecuted for rape even if the woman withdraws her consent during the act. On the other hand post-penetration rape which has been recognized as rape in a number of legal systems across the globe refers to conditions where the woman revokes her consent during sexual intercourse or states her wish to terminate the sexual intercourse but the man continues to have sex against her wishes.[3] As there has not been any deliberation regarding the post- penetration rape in India, the offenders committing stealthing go scot free due to the legal lacunae.
Now the question is on what grounds post-penetration rape found justification for its criminalization. Post-penetration rape is a violation of bodily integrity of the woman as their right to be free from unwanted invasions is infringed in this case.[4] Criminalizing post-penetration rape acknowledges that consent can be freely given but subsequently taken away. If this were not the case, consent would operate as a transfer of dominion or irrevocable waiver; women would have no control over their own bodies, and men would be free to do as they pleased with previously “consenting” women.[5] Hence criminalization of post–penetration rape recognizes women as responsible, autonomous beings who possesses right to self-determination. Hence criminalization of post-penetration rape is premised upon the principle that women have right to revoke consent whenever she feels it so. In State v. Robinson, the Supreme Judicial Court of Maine convicted a man of post–penetration rape in a case where the woman revoked her during intercourse by holding that the continuation of sex was under compulsion hence not consensual.[6] In State v. Siering[7], the appellate court held initially that consensual sex could become sexual assault if continued by force after the revocation of consent. Initial consent for sexual activity cannot be construed as consent to future sexual activity.[8] The rationale behind criminalizing assault including sexual assault is to protect physical and psychological integrity of every individual. The core of human dignity and autonomy exists in having control over who touches the boy and how. Common law has recognized this principle for a long time.[9]
Any rape is sexual invasion of a woman’s body in which her personal, private and inner space is violated without her consent.[10] Failure to recognize a person’s ability to withdraw consent to sexual intercourse denies that person dignity and autonomy under the law. Recognizing a person’s right to withdraw consent to sexual intercourse at any time exposes adherence to social myths and antiquated attitudes underlying rape laws. One such myth is that of “The Unstoppable Male,” or the idea that “once a man engages in sexual activity, it is physically impossible for him to stop.”[11] A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.[12]
Stealthing as Post-penetration rape
Now let’s try to understand how stealthing, a prominent example of post-penetration rape, works. Stealthing is a non-consensual or covert removal of condom during intercourse which puts women’s sexual autonomy and integrity at stake as it disregards the non-consent of women for sex without a condom. This is post-penetration because women initially consent for sex with a condom but the condom is surreptitiously removed by other partner for which no consent of women was taken.[13] This deception and coercion deprives her of her rights to sexual and bodily autonomy and her right to control her sexual and reproductive choices, all without her knowing. As the consent for sex was given on the pre-condition of use of a condom, the instant the condom is removed, the consent ceases to exist. In this act the autonomy and agency of women is violated without her consent and knowledge.[14]
As consent is the decisive parameter for rape laws across legal systems including India, the act of stealthing must be understood simply in terms of violation of consent to engage in sexual activity in a particular manner. As an act like stealthing is inextricably linked with fraud and deception which vitiates consent and thus violates autonomy, hence it must be considered as rape.[15] In this course the ruling of the Canadian Court sets a directive precedent in the cases of post-penetration rape which must be imbibed by Indian courts when encountered with cases like stealthing in order to make laws on rape more victim oriented and less tainted by patriarchy.
[The author is a second year B.A. L.L.B. (Hons.) student at National Law School of India University, Bangalore.]
[1] R.v. Ewanchuk, 1999 CanLii 711 (SCC).
[2] Section 375, Indian Penal Code, 1860.
[3] Amy McLellan, Comment, Postpenetration Rape—Increasing the Penalty, 31 SANTA CLARA L. REV. 779, 780 (1991).
[4] Susan Estrich, Rape, 95 YALE L.J. 1087, 1088 (1986).
[5] Sherry F. Colb, Withdrawing Consent During Intercourse: California’s Highest Court Clarifies the Definition of Rape, FINDLAW’S WRIT (Jan. 15, 2003), http://writ.news.findlaw.com/colb/20030115.html.
[6] Robinson, 496 A.2d at 1069.
[7] State v. Siering, 644 A.2d 958, 963 (Conn. App. Ct. 1994), appeal denied, 648 A.2d 158 (Conn. 1994).
[8] Davis at 5.
[9] See Blackstone’s Commentaries on the Laws of England (4th ed. 1770) Book III, at p. 120.
[10] Susan Brownmiller, Against Our Will: Men, Women and Rape 376 (Simon & Schuster 1975)
[11] Meg Garvin & Megan McGill, No Means No: The Need for Vigilance in Sexual Assault Law, Nat’l Crime Victim L. Inst. News at Lewis & Clark L. Sch., Spring/Summer 2007, at 6 (citing Amy McLellan, Comment, Post-Penetration Rape – Increasing the Penalty, 31 Santa Clara L. Rev. 779)
[12] 720 Ill. Comp. Stat. 5/12-17(c) (2004 Supp.
[13] Brennan, J. (2017). Stealth breeding: Bareback without consent. Psychology & Sexuality, 8. 318-333. doi:10.1080/19419899.2 017.1393451.
[14] Vidler, J. (2017). Ostensible consent and the limits of sexual autonomy. Macquarie Law Journal, 17, 104-128.
[15] Ibid.
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