Posted by Pooja Ahuja
In an experiment conducted by Worcester Polytechnic Institute, findings revealed that women drinking alcohol are considered to be less human and more “sexually available” as compared to men, which could then increase the willingness of others to be more sexually aggressive towards them. This indicated how women and men drinking alcohol were perceived differently.
The controversial remarks made by the Karnataka High Court in Rakesh B. vs. State of Karnataka case, highlighted how there are certain stereotypical ideas which are associated with sexual assault victims and women who do not conform to such standards are treated not worthy of obtaining justice. Although the latter half of the controversial portion was expunged later, it is important to note that the portion “she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning” appearing in the same paragraph was not removed.
The principle of “affirmative consent” ie. that the consent to engage in sexual activities has to be “unequivocal” and “voluntary”, has been codified in the Indian Penal Code. Further, vide an amendment to the Indian Evidence Act, it has been categorically stated that where the question of consent is an issue, it is not permissible to question the “general immoral character” of a victim for proving such consent or the quality of consent. However, the conduct of the various stakeholders in the criminal justice system right from the police to the judges, reflects that even though archaic notions about victim’s chastity has been removed from the text of the law, it continues to prevail in their perceptions. Keeping aside the conversation around if consuming alcohol can be considered “immoral”, in complete defiance of the spirit of the aforesaid amendment, time and again, voluntary intoxication by the victim has been used against them to demonstrate that they are not the ideal honest, chaste or modest woman of India who deserves the protection of the judiciary.
Prime example being the case of Mahmood Farooqui v. State (Govt. of NCT of Delhi), pertaining to how Mahmood Farooqui, a theatre personality, raped a US scholar. While the court acknowledged the principle of affirmative consent, it adjudged the case on different standards. Notably, the court coined a new principle which puts burden on the victim to not only say “no” but also to make the perpetrator understand that she means “no” as “a feeble no may mean a yes”. It is interesting to note that while summarising the facts before the court, it said “Both the prosecutrix and the appellant have consumed liquor in varying measures”.
In Vikas Garg and Ors. vs. State of Haryana, the Punjab and Haryana High Court noted the following portion from the cross examination of the victim “I had consumed beer after arrival of Hardik. I had consumed only one can of beer. Volunteered after committing forceful sex upon me Hardik had forced me to drink two bottles of beer….I had asked Hardik to bring bottles of beer. Volunteered I had said so since under the influence of alcohol forceful sex little more bearable.”
In Rohit Chauhan vs. State NCT of Delhi, the Delhi High Court observed that “In the facts of the present case, here is a complainant who appears to be quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of men which is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court. She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time.”
The aforesaid pronouncements clearly demonstrate that voluntarily intoxicated victims are treated differently than other victims as they do not fit into the traditional script of being a “victim”. It is not far-fetched that due to the outright conservative and sexist beliefs of those involved in the criminal justice system, sexual assault victims are often afraid to admit that they had voluntarily consumed alcohol. In one of the progressive orders passed by the Bombay High Court in Anand P. Chanar and Ors. vs. The State of Maharashtra, there were discrepancies in the statement of the victim and the waiter of the restaurant as the victim denied consuming alcohol and the accused argued “from the whatsapp messages it is clear that the girl was not averse to drinks”. The court acknowledged the pressure on the victim and said “Considering the social norms and culture of the family, the victim might not have disclosed that she had drinks on that evening and therefore she might have lied to that extent to her father to save herself but it does not mean at this stage that whatever she has stated is a complete lie.”
The Court further said:
“In the case of rape, intoxication cannot be an excuse. If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent. In a case of rape, when a woman says “No” for sexual intercourse, it means she is not willing; similarly when she says “Yes”, it should be free and conscious “Yes”. Not every “Yes” is covered under the valid consent. ….If a woman is under intoxication/influence of liquor or any drug, then even though she gives consent, it is not a consent. On the other hand, act of rape committed under influence of drug or liquor is not covered under the exceptions under the Indian Penal Code and that argument is not available to the accused…”
The affirmative consent standard used in the Indian law is the first step in ensuring convictions in cases where the victims are intoxicated or passed out, however, it is ultimately those interpreting it who need to ensure that it is followed in spirit. Reasonable steps to ascertain consent in sexual assault cases must take intoxication into account to not shame women in order to confine them to the ideal notions of “victimhood” but to determine if there was voluntary agreement after all.
Pooja is a lawyer, and has recently quit her job in corporate law. She is currently trying to found her voice in public policy. When not overthinking about capitalism, aging parents and stray dogs, she enjoys reading anything and everything. She can be found on Instagram and LinkedIn.
Featured Image Source: Arpita Biswas