Surrender cannot be construed as consent for sexual intercourse: Kerala HC upholds conviction of 67-year-old for rape of minor

The Kerala High Court recently held that a woman’s resignation to sexual intercourse when caused by fear or duress cannot be termed as “consent” as understood in law (Thankappan v. State of Kerala).

Justice PB Suresh Kumar was hearing an appeal by a 67-year-old man convicted of having sexually assaulted and impregnated a minor from a scheduled caste.

The complainant, who was around 14 years of age when the act was committed, used to regularly visit the home of the accused to watch television. The man had a granddaughter who was around the same age as the complainant. One day, when the complainant was at the home of the accused, he forcibly had sexual intercourse with her. Just before the act, he had sent his granddaughter out to do some “shopping”.

Despite the complainant’s attempts to yell, the accused continued, warning her against revealing his actions to anyone. The accused continued to have intercourse with her on other occasions as well, which the complainant did not disclose to anyone for fear of her mother and sister being brought to harm.

While the complainant averred that his act was without her volition, the man through his counsel argued that the act was consensual because “she used to go to the house of the accused as and when desired or required by the accused and had sex with him.”

The Court, however, observed, "In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse."

Since the case arose prior to the amendments to Criminal Law made in 2013 and amendments to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, the laws in question were the unamended Section 375 of the Indian Penal Code (Rape) and the pre-2015 Scheduled Castes and Tribes (Prevention of Atrocities) Act.

In deciding the appeal, Justice Kumar held that consent in the face of fear, duress, or compulsion could not be termed as 'lawful consent.' He said:

The judgment further states,

Quoting from the Convention on the Elimination of Violence against Women, the Judge notes that sexual assault has historically been manifestations of unequal power relations between men and women, which has led to the former’s domination of the latter. Thus, sexual assaults are crimes of gender inequality, the Judge rules.

The Court cited the American case, Meritor Savings Bank, FSB v. Mechelle Vinson, to state that that ‘welcomeness’ and not consent is the standard that sex is required to meet so as not to violate the rights of women consistent with gender equality.

From the facts of the case, the Court concluded that there was nothing on record to prove the existence of “consent” as argued by the accused. The complainant had categorically stated that the accused had forced himself upon her in the first instance, the judgment records.

Rebutting the accused’s contention of his subsequent acts of intercourse being consensual, Court stated:

Since the accused was older and able to dominate the will of the complainant by reason of his being a “fatherly figure”, the Court observed,

Referring to American Psychiatrist Judith Lewis Herman’s observations on rape survivors, Justice Kumar ends his judgment with a quote from her book “Trauma and Recovery”, where she writes,

The appeal was, therefore, dismissed.

Read the Judgment: