Victim’s Past Sexual Experience Is Not Relevant To Consent, Observes Delhi Court In A Rape Case. We Agree!
I am going to say it. I have a short temper and a low threshold for patience. One of them being extending any sort of generosity towards people who over and over again forget or misconstrue the meaning of consent. Most of the men in the world, for instance. A word that has repeatedly been taken out of context, or simply been overlooked in quite a cases, consent stands to be one of the most ironically difficult concepts to grasp. Especially by men who think it’s a mere suggestion, something that can be entirely ignored, to save their asses after committing a crime as heinous as rape.
This comes after the anticipatory bail of Mumbai-based journalist Varun Hiremath was dismissed by the Delhi Court observing that consent cannot be implied from a victim’s previous sexual experiences with the accused. And what irked us was the fact that this had to be implied by a court of law, and was not already a given fact. Because apparently, if a woman said yes to sexual intercourse once, she is going to be in agreement every time after that.
The order was passed by Additional Sessions Judge Sanjay Khanagwal (fast track courts), Patiala House Court on March 12, where he stated, “Although WhatsApp and Instagram chats has not been specifically denied from the side of the prosecution but despite the fact that accused and prosecutrix were having loving relationship and they were being indulged in sexual explicit talks that also not going to make any difference at this stage in view of section 53-(a) of Indian Evidence Act which provides that evidence of character or previous sexual experiences not relevant in certain cases including the offence under section 376 and this provision specifically shows that previous sexual experiences with any person shall not be relevant on the issue of such consent or quality of consent (sic).”
Past sexual experience does not imply consent, says Delhi court in rape case pic.twitter.com/qO398dOBof
— Times No1 (@no1_times) March 17, 2021
Also Read : A Guy Asked The Pune Police Commissioner To Help Him Convince A Girl. He Got Schooled On Consent
The order passed by Judge Sanjay Khanagwal further observed, “Therefore, from her previous experiences with the accused the consent cannot be implied. This observation is also found support from Section 114 A Indian Evidence Act which deals with the presumption as to the absence of consent of certain cases for the rape and if sexual intercourse by the accused is proved.”
The ruling was followed after a case filed by a woman where in her complainant, she accused journalist Varun Hiremath of having raped her at a five-star hotel in Chanakyapuri on February 20. The accused in the case is a 28 year old journalist working with the ET Now. The woman had informed the court about her friendship and sexual relationship with the accused since 2017. However, the woman said that she was “not willing for any sexual indulgence with the accused” on the day where was invited to the hotel for a wedding. The complainant also stated that she “feared of injury” if she attempted to escape the room.
Past sexual experience not relevant to consent, says Delhi court in rape case https://t.co/IWXiFTbAFi via @IndianExpress
— Brinda Adige (@BrindaAdige) March 17, 2021
Basis the complaint filed by the victim, an FIR under IPC sections 376 (punishment of offence of rape), 342 (punishment for wrongful confinement) and 509 (word, gesture or act intended to insult the modesty of a woman) was registered at Chanakyapuri police station. Meanwhile, the court stayed strong on it’s stance that in context of consent, “the court shall presume that she did not consent,” for the complainant stated in her evidence that she did not say yes.
Finally, the word of a woman has started to take precedence, as the court realises how no matter how many chats two people can engage in, the woman has a right to say no at any point, and if she did not give consent, the previous times when she did would not have an impact on the matter.
