Law on Sexual Offense- ProLegal

Abstract

This article addresses the evolution of sexual offense and consent laws on a global scale, with a focus on India. It highlights how the legal age of consent differs worldwide, typically from 16 to 18 years, and examines the various forms of consent, including express and implied consent. These distinctions play a crucial role in determining the legality of sexual acts, influencing the classification of offenses such as rape and sexual assault.

In India, sexual offenses are defined under the BHARTIYA NAYA SANGIYATA (BNS), where consent is pivotal in establishing criminal liability for acts like rape (Section 63). The article explores these provisions, comparing India’s legal stance with other countries.

Two susceptible issues [1] marital rape and [2] child marriage—are also discussed. Marital rape, which is not criminalized in India, is a point of contention, as critics argue that a lack of consent within marriage should still be considered rape. Similarly, child marriage, though illegal, often leads to cases of sexual exploitation, raising further questions about the enforcement of consent laws.

The abstract suggests the need for reforms to address gaps in sexual offense laws, especially around marital rape and child marriage, to ensure legal protection and justice for all individuals.

Introduction

In sexual offenses many times confused that this is consensual sex or not, whether consent is given, or whether child marriage is defined as consent according to Indian laws, child marriage is void if a female child is willing to void the marriage but in this cases, sexual intimacy age define in IPC now BNNS, The Protection of Children from Sexual Offences (POSCO) and other laws have been 18 years now the question arises that in this time given consent is a valid consent if valid consent or not.

The same question arises when come to the knowledge of cases of Marital rape in some countries like the United States, United Kingdom, Canada, and several European nations marital rape is an offense and in some countries like Bangla Desh, India marital rape is not an offense.

In many communities are age of marriage is different Muslim marriage age is 12 or the first puberty, and different communities of marriage show how can define consent sex and how can define if girls given consent is valid or not. This article lightens the consent in sexual offenses and legal standards challenge and reforms.

Sexual Offense and Consent Laws

Laws of rape, sexual assault, and other types of sexual violence heavily rely on sexual consent. The alleged perpetrator’s guilt of rape, sexual assault, or other sexual misbehavior can be determined in a court of law based on whether the victim freely gave their consent and whether they were judged competent of doing so.

The normal range of the legal age of consent is 12 to 18 years old, although there are considerable variations. For instance, the national age of consent in Japan is 13, although many prefectures have passed local laws raising the age. Sweden, on the other hand, has set the age at 18, demonstrating a strong commitment to protecting children’s rights and guaranteeing that sexual decisions are made with knowledge. States in the US have diverse laws regarding the age of consent, which makes the legal system complicated and subject to various interpretations and implementations.

Cultural, social, and legal factors heavily influence these variations. Societies with strong patriarchal norms often have lower ages of consent, reflecting traditional views on marriage and familial obligations, while those prioritizing individual rights and protections tend to establish higher ages.

Contemporary status of consent jurisprudence in rape law in India

Before the Criminal Law Amendment Act of 2013, the Indian Penal Code had no explicit definition of consent in rape law. However, Section 90 of the IPC states in general terms that any consent given under fear of injury, a misconception of fact, or given by an insane person, an intoxicated person, or a child is not considered valid consent.[1]

The Indian government set up the JS Verma Committee in 2013 in response to the horrifying Delhi gang rape and murder case (Mukesh and Anr, 2017). The committee’s recommendations for changes to the country’s sexual assault laws included a speedier trial and harsher penalties for those who were accused of sexually assaulting women. This led to the passage of the Criminal Amendment Act, 2013 (JS Verma Committee 2013).[2] The concept of rape legislation, procedural laws, and evidentiary acts were all drastically altered by the act. Additionally, the committee cited the legal position in both English and Canadian law and suggested that the meaning of consent be framed as “an unequivocal voluntary agreement when the woman communicates her willingness to participate in the specific sexual act through words, gestures, or any other verbal or non-verbal communication” (JS Verma Committee 2013, 71–74). As a result, an effort was undertaken to create a progressive standard of consent that mandated that a man get the woman’s clear consent before engaging in sexual activity.

[1] Indian Penal Code. (1860). Section 90. Consent given under fear or misconception.

[2] JS Verma Committee. (2013). Report of the Committee on Amendments to Criminal Law. Government of India.

Relevance of extraneous circumstances in the determination of consent by courts in India

The Farooqui case is a prime illustration of how the court’s assessment of the complainant’s trustworthiness and her consent to the conduct is influenced by prior fondness and external variables. Courts prefer to assess a complainant’s credibility before convicting an accused person in the absence of independent supporting evidence, particularly if the complaint is the only source of testimony. This credibility is moral rather than legal. Adrian Zuckerman clarified this concept by stating that moral credibility refers to a person’s social position, which would transfer into the veracity of their testimony, whereas legal credibility is about the truth value of testimony (Zuckerman 1989, 248–249).[1]

The argument used to undermine the complainant’s moral credibility is that it would be unjust to penalize the accused based only on the testimony of someone who lacks moral integrity, particularly when there is no independent confirmation of their story (McColgan 1996, 283).[2] The accused is subsequently cleared based on the benefit of the doubt or implied consent to the act is implied by this lack of morality (Brown et al. 1993, 85).[3]

The relevance of extraneous circumstances in the determination of consent can be traced to the decision of the Supreme Court of India in Bharwada BhoginbhaiHirjibhai v State of Gujarat in 1983.[4] In this case, the court settled the legal position on conviction in rape cases based on the sole testimony of the victim. The court held that in Indian society considering the value placed on a woman’s chastity, it is difficult to fathom a woman who would lie about the offense of rape. Moreover, unlike in cases of physical assault, it is not reasonable to expect eyewitnesses in rape cases, which occur in private spheres. Therefore, there is no need for corroborating a victim’s testimony in a rape case unless it suffers from basic infirmity, and the probability factor renders her testimony unworthy of credence. The Bharwada decision was a positive development for rape victims as convictions could now be based on their sole testimonies. However, the court did not offer any guidance on what kind of infirmity or probability factor would render a rape victim’s testimony unreliable without corroboration. This glaring lacuna in the decision effectively allows judges to determine the credibility of complainants and their testimonies regarding consent based on patriarchal notions prevailing in Indian society. This also paves the way for judges to incorporate their moral convictions and assumptions about gender behavior in determining consent. These are also used to determine whether the accused’s belief in consent can be attributed in any way to the conduct of the victim. Such extraneous circumstances may be any form of past or present behavior or sexual history of the complainant, thereby relying on traditional rules of evidence, which are inherently misleading, and reliance on these often leads to a miscarriage of justice. Let us analyze some of these considerations and their potential impact on issues of determination of consent.

The BHARTIYA NAYA SANGIYATA (BNS) serves as India’s legal framework for sexual offense laws, with Section 63 focusing on the definition of rape. This law emphasizes the importance of consent in determining criminal liability, highlighting the need for a clear understanding of consent in the context of sexual offenses.

Role of Consent in Indian Law

Under Indian law, consent is central to establishing the legality of sexual acts. The definition of consent has evolved but still faces challenges rooted in societal attitudes and interpretations within the legal system. The need for reforms to ensure that consent is adequately recognized in all contexts remains a pressing concern.

Conclusion

The study of consent laws and sexual offenses exposes complex ethical, cultural, and legal issues that have an effect on cultures all over the world. Despite their universal significance, consent laws differ significantly between places due to a variety of social norms, cultural beliefs, and legal traditions, as this article highlights. In nations such as India, the changing interpretation of legislation about age, consent, and marital rights illustrates the difficulties and advancements in defending individual rights within a conventional framework.

“Written by Abhishek Kumar, student of LL.M 2nd Semester at National Forensic Science University, Delhi Campus, readers can send their feedback and questions on aryaabhi2811@gmail.com”

Sexual Offence and Consent Law: Legal Standards, Challenges, and Reforms