Law

On Consent, the Bombay High Court Has Done Well to Pin Responsibility for Rape on Where it Belongs

The court’s verdict is a welcome corrective to misogynistic rhetoric and helps make space for a truly cosmopolitan attitude in India

A couple in Mumbai. Credit: Reuters

A couple in Mumbai. Credit: Reuters

Consent laws in India have a long way to go, not to speak of public attitudes towards a woman’s right to say no. Despite experiencing rapid economic growth in recent years, India has had significant trouble shedding, or attempting to shed, the trappings of patriarchy. The fact that politicians and the police freely blame rape victims, that marital rape is not considered a crime and that scarcely any legal redress exists for male victims of sexual assault demonstrate that we as a society are very much in need of improvement.

The Bombay high court’s ruling last week rejecting the bail application of three men accused of raping a woman happened to be intoxicated comes as a necessary injection of sensitivity. The court denied bail to the main accused on the grounds that “If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent”. However, many people on social media have reacted negatively to the verdict, criticising what they claim is the victimisation of the accused. Looking at the comments on Facebook and online versions of opinion and news articles on the subject makes it clear that a lot of people think the judge was wrong. Thankfully, there are also those who support the decision and try to engage the dissenters in a debate. Also, thankfully, the court does not care about popular opinion. India has a growing men’s rights movement. It is partly a response to the increasing challenged posed by feminist attitudes to entrenched notions of gender roles in society.

So what are these arguments against the verdict, and is there any logic to them? I found three common themes running through the comments, and, no, there wasn’t much logic to any of them. I’ll break them down for you:

  1. Going by this judgment, now murder should be forgiven when committed by someone under the influence.
    • No, it should not be. The court is specifically saying that rape cannot be dismissed because consent was obtained, if at all, under the significant influence of alcohol. The argument does not hold up because the crime committed is by the murderer and the rapist, thereby making the comparison between the murderer and the rape survivor non-analogous.
  2. Women need to take responsibility for their actions, hence this verdict is wrong.
    • Yes, women do need to be responsible. If an inebriated woman steals your wallet, then she should be reprimanded for the crime in accordance with the severity of it. However, when someone takes advantage of an intoxicated human being then the perpetrator is performing an action that he or she must be held responsible for; in this case, the woman is actually not making any action at all.
    • But this breakdown doesn’t matter because what this logically unsound statement is really saying is: if you get drunk, men will attack you. We see the ‘boys will be boys’ mentality over and over again. And here it is once more.
  3. Since some women will misuse this precedent, it shouldn’t have been set in the first place.
    • Murder and arson claims could be false and the laws protecting victims could be misused too. Does not mean we do away with safeguards for legitimate victims.

You and I may sit here all day and bust these illogical statements for what they are. But what really drives them? Why are so many people overwhelmingly opposed to the precedent being set in this specific case? While lots of young people mix alcohol and social mingling, it is still not a popular practice across the country. In the past, these types of gatherings were reserved for the very rich and the very liberal. Now, they are seeping into our daily lives. When you combine the novelty of alcohol-infused revelry with the traditional mindset we are only now beginning to shed, you get attitudes that simply don’t understand the importance of women’s autonomy and bodily integrity. It is on this shaky new ground that questions about women’s morality and ‘inappropriateness’ surface. For now, it seems, society believes alcohol and loosened inhibitions are only for men. And that when women indulge, they call calamities upon themselves, and let down family honour.

It isn’t just that fun is the prerogative of men. In the arguments I noted above, the common thread was of assuming this verdict would lead to the forgiving of murders committed under the influence. It wasn’t just an inadvertent logical fallacy at play; it was also the thought that premarital sex is a crime, or wrong enough to be close to it. It is common knowledge that many people still want to marry virgins, prize “purity” in their brides, and consider sexual activity before marriage horrible to stomach. When women have sex, with or without consent, outside of marriage, they taint themselves. Consent does not matter, the fact that they had premarital sex does.

And, finally, there is the entitlement that so many, including the perpetrators, exhibit. The right to say no, to be free from unwanted or unrecognisable sexual advances, does not fit in with their agenda of retaining control over women’s bodies. These entitled people want to have fun, and they want to avoid any repercussions of pushing past boundaries. The fact that a court may decide that taking advantage of an inebriated woman cannot go unpunished is unsettling. After all, if boys will be boys, then how will they continue having fun at the expense of others if we put these safeguards in place?

However, despite what some may want or believe, women’s entry into the workforce, access to autonomous sources of finances and increased interactions with different kinds of people will lead to social changes and the broadening of their minds and experiences. Given that women are not only better informed of their rights but are willing to be more assertive in defending them, they will continue to demand equal treatment, which entails the right to safety and leisure.

Thankfully, there are many men and women out there who recognise the need to have a clear definition of consent in place. There are people who are trying to create an environment that is safe and welcoming for everyone, opening up a world of fun and camaraderie to both sexes. The Bombay high court’s verdict is a welcome corrective to misogynistic rhetoric and helps make space for a truly cosmopolitan attitude in India. After all, everyone should feel safe trusting and letting go a little bit around friends. Men as well as women.

Divaynka Sharma is a systems economist at Locus Analytics, an economic think tank and data analytics firm based in New York City. 

  • Derick Martis

    What if both of them are drunk? And the girl files a complaint?