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Posted by Gugush Chopra

The National Crime Record Bureau statistics for 2015 revealed horrifying statistics on rape cases in India. According to it, 95% of reported cases of rapes that year were acquaintance rapes. An acquaintance is any person who the woman is dating, a live-in partner, co-worker, professional associate, friend, neighbour, therapist, or a man known to the woman in any other capacity.  

Whether committed by a stranger or an acquaintance, what lies central to the definition of rape is ‘consent’ of the victim (see definition of rape under Section 375 IPC). The scale of this crime, therefore, suggests that there is a problem with the collective understanding of consensual sex.  

Whilst lack of sexual consent remains largely uncontested in cases of stranger rape, the issue of consent is brutally contested in acquaintance rape trials. One of the common defence arguments in rape trials being “I thought she wanted it too or I thought she consented to it”, legally referred to as (honest but) ‘mistaken belief in consent’.

On the face of it, these incidents seem like missteps arising from communication gaps or miscommunication between the man and woman that somehow slid into rape. However, as I discussed in What Is Intimate Partner Rape And Does Our Society Foster It?, deeper dynamics surrounding acquaintance rape are sometimes more serious than that.

enthusiastic consent model can offer us a way to prevent acquaintance rapes especially, date/intimate relation rapes.

Whilst, there are situations where a man genuinely believes the woman to have consented (when in fact she had not) owing to an ambiguous response, or the dissonance between her verbal and body language -a case of miscommunication; there are also situations where a man recklessly overlooks woman’s refusal, (verbal or nonverbal) because he is dead set on having sex that day; or, a man, who finds arousal in exerting his power and domination by having sex with a woman who resists it, rather than one who is equally interested, since he is not keen on an experience that involves mutual pleasure any more than his own- a case of toxic masculinity playing out as sexual violence against women.

Also read: Why Aren’t We Talking About Sexual Consent In India?

To the extent that (mis)communication is causing rape, the enthusiastic consent model can offer us a way to prevent acquaintance rapes especially, date/intimate relation rapes. However, intentional acts of sexual violence will require more robust steps calling for sweeping change in mental attitudes through consent education for adults and teenagers alike, and strict enforcement of rape laws to create deterrence.

Enthusiastic Consent Model

This model was adopted by State-funded educational institutions in California, US, to prevent the ever-increasing incidents of date rape cases in college campuses.

Enthusiastic consent model is based on the idea that if a man and a woman unequivocally want sex and engage in it out of their own free will, they are unmistakably happy, excited and enthusiastic about their sexual encounter. Therefore, when the instigator (usually the man) makes a sexual advance, he needs to look for consent that is affirmative, unambiguous and clearly upbeat in sentiment as well as in expression. Making a sexual move when the woman’s response falls short of this standard could make him liable for prosecution for rape. The model is based on respect for sexual autonomy of both parties, and emphasises that if the woman’s response is anything other than an ‘enthusiastic yes’, it should be regarded as a ‘no’.

Since sex is not a chore that a woman ‘has’ to do, rather, sexual intimacy is something to be shared between two people for mutual pleasure. Therefore, no matter how close a relationship between man and woman is; no matter when was the last time they had consensual sex-whether that was last year, last week or last night; and no matter what the couple’s sexual history is- whether he has had sex with her several times before, or never at all and whether she had consented to certain sexual acts in the past, the man needs to seek woman’s consent before initiating sex, and before each progressive step that involves gearing up to a higher level of intimacy (including specific sex acts).

This ensures they both are in synchronisation about what they are indulging in and that the proposed sex act/(s) is enjoyable for both. However, at any time when the woman gets uncomfortable and does not wish to continue, she is free to revoke her consent.

Consider this- when in response to man’s sexual advance, the woman says “yes, of course” or “yes, absolutely” and follows it with smiles, chuckles or giggles and/or makes any other welcoming gesture, adorns a seductive outfit, or actively participates by showing off her playful or romantic side, it constitutes enthusiastic consent for the forthcoming sexual encounter.

Compare this with a ‘half-hearted yes’, ‘ya, maybe’ or a yes that lacks enthusiasm, or she says ‘yes’ in a state of intoxication or when she is half asleep. With a ‘yes’ like this, how would a typical woman behave during sex – lean in or push back, smile or get uncomfortable, kiss back or stay still, give a fuller embrace or just wrap her arms around him, enjoy it or just ‘get over with it’? You have the answer.

Conclusion

Sex is about pleasure. It’s should not be treated like a transaction or an act of extortion. If a man cannot make space for a woman, who he claims to be his girlfriend or partner, to say ‘no’ when she does not desire sex, she is no more than an object, a collection of sexual parts or at best, a facilitator of phallic spasm for him.

A healthy sexual relationship is one where a person wants his/her sexual partner to be as interested in sex as he/she is and strives to make that experience mutually, rather than singularly, satisfying.

The essence of enthusiastic consent is about respecting signs of disagreement/dissent, to pause and revalidate when there is an ambiguous response, silence or even a ‘yes’ that lacks zest and consider it as ‘no’, rather than assuming it as ‘yes’.

Also read: Understanding Consent Beyond A ‘Yes’ Or A ‘No’

To all women out there- Embrace Your Sexuality. Learn to give enthusiastic response to convey positive consent, and a clear and unambiguous refusal to ensure he doesn’t think that you “consented to it too” if in reality, you did not.


Gugush Chopra holds a Master’s degree in Human Rights Law (with specialism in women’s rights) from the University of Nottingham and has formerly worked in the violence against women sector in the UK. She is passionate about the rights of women, children and transgender people to live a life free of sexual violence and exploitation.

Featured Image Source: The Australian

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