When Consent is ‘Misread’ and ‘Misconstrued’: A Response

The opinion piece titled, ‘When a consensual relationship goes bad’, by Mr. Rajesh Kumar that appeared in The Tribune on 29th June, 2018, brings to the fore, the misconstrued understanding of consent in a mutual relationship. While the article seems to be driven by the author’s moralistic ethos, it is also fundamentally flawed at its conceptual roots. In fact, it has only succeeded in exposing the author’s deep-seated prejudice and inadequacy in conceiving, comprehending and articulating the importance of ‘consent’, which the feminist movement took years to build. The article is not only misogynist in its approach, but also highly belittles the historic struggles of the feminist movement that laid the foundation of a gender-just society. The article at best seems to underscore two important points: while on the one hand, the author tells that no woman subjected to sexual violence should be denied justice under law, on the other hand, he succinctly creates a feel-good factor for all ‘innocent’ men, who according to him, are maligned under false charges of rape. It is quite interesting to note how the author positions himself in a manner that allows him to play safe by equally balancing both sides of the same coin!

At the outset, the argument that physical union and emotional connect are two intrinsic elements of sexual intimacy, and that the latter is the driving force that leads to the former, might not always be true. In any consensual adult relationship, there are possibilities that one of the elements could exist independent of the other, without any necessary link between the two. Since language is a political tool, it is important for us to understand how significant language becomes, when we talk about, and define something as sensitive as sexual violence. It is in this context that the author completely misses the point. For him, ‘rape’ is nothing but an act that is devoid of emotional connect. Such articulation of a criminal offence like rape not only trivializes the act of violence, but also reflects how our vocabulary for this kind of violence is increasingly becoming impoverished. The complicated and the inadequate language to define sexual violence is not a harmless coincidence. Instead, this language is reflective of our culture that legitimizes and perpetuates the existing social structures of power and control.

It is important to reiterate that the law protecting women against sexual violence is governed by a woman’s perceptions, rather than a man’s intentions. The act of rape cannot be simply understood in black and white; there are multiple contours to understanding and defining rape. The author’s argument that it should be the ‘emotional state’ of the female partner during the commission of the act, that should define rape and not the ‘physical union’, is completely unfounded and misplaced. How do we know that our partner has consented or will consent to sex? Do we directly ask or do we assume silence as consent? Do we look for her body language that may give a signal? When all other means fail, instead of seeking consent, do we try and ‘manufacture’ it? These are some of the pertinent questions that demystify the rather simplistic understanding and way of defining the idea of ‘consent’ as mentioned in Rajesh Kumar’s article. Contrary to what the author suggests, it is not simply the physical act of forced imposition that results in rape, but also the context in which consent was coerced or manufactured, also becomes extremely significant. Violence against women is the product of patriarchal social arrangements and ideologies that treat sexual assault as using only physical force, completely undermining how sexual assault also involves the use of verbal and emotional force.

While the author touches upon the complexity of the situation when rape is reported after many years of its occurrence, he misses on two very important points. Firstly, his allegation that women might victimize men under false charges of rape when reported at a later date, is highly unsubstantial and unconvincing. Moreover, he fails to acknowledge that societal obligations and social stigma attached to rape or any form of sexual violence play an instrumental role in deterring women from reporting or even confiding to the closest of their people. Since rape is a criminal offence, reporting it cannot be barred by time limit. However, if some time elapses, proving a case of rape in the court might become difficult for the victim/survivor, rather than the accused, as the author argues in the article. This is because late reporting of rape is generally conceived as a revenge of a jilted partner, rather than a bonafide rape case. In addition, destruction of evidence by the accused, witnesses’ withdrawal from participating in the legal processes due to various reasons, and police apathy are some of the other crucial factors that vitiate court proceedings, thereby creating a situation of vulnerability and disadvantage for the victim/survivor. With incidents of rape and sexual assault increasing in the country at an alarming rate, calling it propaganda against innocent men is highly unreasonable.

The author then goes on to examine the debate of consent vs rape under three different circumstances: within marriage, within live-in relationships, and outside marriage and live-in relationships.

While in marriage and in live-in relationships

The first point of contention is the author’s assumption that marriage equals procreation, where the sexual act is an integral part. Besides the glorification of marriage as a sacred institution, the author also reminds women to not shy away from their marital and social responsibility of motherhood, even if that means forced imposition. He completely overlooks that the institution of marriage has always been deeply rooted in patriarchy and gender inequality. The manner in which the arguments in the article have been framed only points to an understanding that nothing called ‘marital rape’exists, and within marriage, women are supposed to give in to the sexual demands of their husbands. It is high time we recognize marriage and motherhood, not as enforced social necessities, but as matters of choice. My argument is not that all women think marriage is disadvantageous for them. While marriage can be oppressive for some, it can also be extremely liberating for others. However, sacrifice, mutual trust, and dedication are not the only distinctive attributes that defines a marriage, as the author argues in his article. It is the social relations of production and reproduction that constitutes the defining feature of marriage and household relationships.

Walby (1989) rightly argues that women’s labour is expropriated by men within marriage and household relationships. Domestic division of labour is a major form of differentiation between men and women which has significant effects on other aspects of social relations. Hence, this in itself is a form of social inequality (p. 221).These vivid nuances that define the institution of marriage have been completely overlooked by the author, by simplistically viewing marriage as a means of procreation for women. For him, sexual union under obligatory circumstances is not tantamount to coercion. According to him, in order to preserve the sanctity of marriage, women should not abstain from indulging in it. Here, once again the idea of consent is defied and conveniently debunked. In such situations, the woman’s body is used as a battleground to assert power. Concomitantly, women’s rights and emotions are made subservient to their men, and reproduction is firmly kept within the sphere of male control.

It may be noted that in the article, even his view of live-in relationships is similar to his understanding of marriage. While attitudes towards non-marital relations are gradually changing, nevertheless, such kinds of relationships are highly tabooed in our society, despite the ruling of the Supreme Court to protect women against domestic violence. The ruling recognises the existence of such relationships, but does not confer any legal status upon live-in partners. The article does not adequately discuss the complexities involved in defining consent and rape within live-in relationships. Instead, the author feels that defining rape within ‘marriage’ is a much more difficult proposition than outside marriage and live-in relationships because of the legitimacy that the former carries over the latter.

The article seems more like a prescriptive piece that tells us what should be done when consensual relationships go wrong, rather than rightly explaining what ‘consent’ is, in the first place. The frightening regularity, with which women and young girls are subjected to various forms of violence in different parts of the country, makes the idea of consent even more relevant and significant. The article stresses more on the time-bound reportage of crime, rather than the certainty of it. It refuses to acknowledge the multiple layers of power and control that influences the manufacturing of consent in different social contexts. Finally, the article only succeeds in choosing the social sphere where rape can be best defined, but fails to unravel the complexities involved therein.

The author is a PhD scholar at the Tata Institute of Social Sciences, Mumbai. Email: [email protected]