FYI 25th July, 2021

Post-Penetration Withdrawal Of Consent: A Law-Based Perspective.

Human beings are considered the most evolved creatures on this planet because of the survival skills that keep them alive and multiply their own numbers with great exponents every year. Not only do they use this to survive but also build social relations with other humans and thus form societies. People come together and form their own society, state or country because they want to be part of it willingly and give their agency/consent to be a member of that group. When consent is such an important aspect of human society then it becomes very important to discuss why grave acts like rape are done in the first place in the name of notions such as “men can’t stop” or “no point of return once sexually aroused”.

While rape is considered an offensive act in almost all jurisdictions and is highly condemned (though the numbers are still not going down) in most places, we still cannot say with the same conviction that consent taken back by one partner to not continue a sexual act can be a valid withdrawal of consent. The issue of post penetration withdrawal (PPW) of consent thus becomes quite an essential topic to ponder upon – as it deviates from the conventional notion of what we consider as rape.

What is Post Penetration Withdrawal of Consent?

To define it briefly, post penetration withdrawal of consent is when the person initially consents for intercourse, but subsequently or during intercourse the person takes back their consent and thus wishes to terminate sexual intercourse. The debate which surrounds this issue is that what is the period under which consensual intercourse could become non-consensual intercourse. Is it just after the partner says “no” or can there be a short time period under which the partner has to stop? 

Furthermore, the issue of communication of withdrawal of consent during intercourse becomes important for discussion as most times the defense used by the accused is that their partner failed to communicate or he couldn’t understand what the partner was trying to convey. Due to these complexities, the issue becomes a lot more difficult to resolve. Another problem faced under this issue is the inconsistent definition of rape which, even today, doesn’t include PPW under its definition in most countries. Though some areas like California, Maryland have provided a vast definition of rape and include PPW in it – but in many jurisdictions, the traditional definition of rape is still being used, including India.

What we would be discussing comprises different case laws with regards to post penetration withdrawal of consent – starting off with the first-ever case of PPW, what were the earlier views on it, and how it has changed with time and try to look at PPW in marital cases. Since this sub-topic would be discussed from the perspective of Indian laws and provisions, we should first try to understand the problem of no legal provisions of marital rape and we should try to understand whether provisions for marital rape and PPW can be made while being mindful of all the backdrops that may be created while making laws for these issues.

As it’s seen that the defenses taken by the accused when faced with the accusation of not stopping during sexual intercourse when they were told to are nothing but excuses or an “urge” to not stop and “enjoy the flow”. Some of these ‘defenses’ include (not exhaustively) – “you need to be more assertive”, “we were drunk”, “she was asking for it because of what she was wearing”, and so on. These lines are used to generally blur the lines of consent during sexual intercourse.

What is Consent, then?

What we need to understand is that though these excuses are used by perpetrators in the name of “consensual sex” they are just lying under this veil of excuses. It should be made very clear that consent within itself carries a very crystal clear definition and there’s no place of morphing it with any kind of excuse or mal-intention. So the question that comes to mind now is what does a crystal clear definition of consent consist of? Will a mere “yes” to the sexual act be sufficient or does something more need to be explained? Will whispering do or do you have to shout it? What does consent look or sound like?

Consent to sexual intercourse would be enthusiastic i.e., a clear yes. If the partner is unsure or worried about it –  then it’s NOT consent. The affirmation needs to be enthusiastic – silence or an “I don’t know” doesn’t mean yes. Consent needs to be given freely i.e., without any coercion, manipulation or pressure. Affirmation to only informed facts would be consent – like if a partner says they will use protection during sex, but they don’t – that is not consensual sex. Consent could be specific i.e., you can affirm on something and deny other aspects, and consent could be reversible – if you have given consent first then you can also take it back any time you want.

Examining some legal battles

Let’s now look into the first-ever case of post penetration withdrawal of consent from the late 1970s in the United States. Under this case, we see what the previous conception of post penetration was and whether the court decided in favor of the survivor and what was the court’s observance on the withdrawal of consent. In the case titled State v. Way, in the North Carolina Supreme Court in 1979, a man named Donnie Leon Way appealed in the Supreme Court against his conviction of second-degree rape in the trial court. He was convicted of rape and oral sex using extreme violence and force.

The survivor testified that she went on a date with Way and went to his house. The survivor further testified that Way threatened to kill her if she didn’t participate in the sexual activities he demanded. During sexual intercourse, the survivor said that she suffered from severe stomach pain which led Way to stop, while Way testified that the intercourse was consensual and when the survivor suffered from stomach ache and started screaming, he stopped and called her friend to get help. What the Supreme Court observed and decided in the appeal was that the trial court’s decision to convict Way was erroneous because the trial court observed that if consent is taken by the partner and if intercourse happens after the revocation, then the intercourse would be considered rape.

While according to the Supreme Court, the act would only be considered rape if she has not given consent for other acts of intercourse. Meaning that although the survivor may revoke consent to sexual intercourse, she may do so only when there is more than one act of intercourse but the defendant and survivor engaged in sexual intercourse only once. So the defendant cannot be convicted for the sexual act for which in the beginning, the survivor has given consent and if she takes it away later, it won’t be considered rape. Supreme Court stated that “this is not the law” according to the rules back then, and without stating any precedent or authority, the act of the defendant can’t be considered rape. To date, this case law hasn’t been overruled though this might have become dormant because of changes in laws in that jurisdiction. 

After this, certain cases happened which gave convictions on post penetration rape. In 1985, in a case before Maine’s Supreme Judicial Court – the survivor testified that the defendant came into her house as he ran out of gasoline and wanted to make a phone call. She allowed him to enter the house but as he entered the house, rather than use the phone he went to where the survivor was watching a movie and after some time he started a struggle with her, forcing her to have sexual intercourse. While the defendant had a different story which he testified to saying that the sexual intercourse was consensual and during intercourse when she conveyed that “I guess I don’t want to do this anymore”, he stopped and left.

The court’s response on the question of ‘whether the sexual intercourse would be considered rape if two people consented to the act initially but later on one of the partners says no and the other still continues?’ was that if the partner communicates its revocation to the other partner and the other one still continues intercourse by compulsion of the party who changed his or her mind, then it WOULD be rape. The critical element here is the continuation under compulsion. The court further explained that if we assume that intercourse initiated by the survivor’s consent won’t become rape just because consent has been revoked – there has to be assault or compulsion involved or when the survivor submits to the defendant’s sexual assault only because of physical force, a threat of physical force or a combination thereof made her unable to physically repel the defendant or produced in her a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon her.

Under this case, the defendant was found guilty because the survivor’s testimony was believed by the court where she said that she didn’t consent to sexual intercourse at all. So in this case, it was observed by the court that in post penetration rape cases, mere revocation of consent by the partner won’t make the act rape unless the element of compulsion is present after revocation of consent. 

Then in another case before the Supreme Court of California, a 17-year-old girl charged the defendant with having sexual intercourse with her even when she didn’t consent. The defendant testified that he did have sexual intercourse with the girl but with her consent and claimed that he stopped and discontinued as soon as she told him that she wants to go home. Again, in this case, the court was facing the same question of whether continued sexual intercourse would nullify previously given consent if the partner revokes it later.

The court decided that affirmation relied upon the judgment of the Roundtree case in which the court decided that “withdrawal of consent effectively nullifies any earlier consent and subjects the defendant to forcible rape charges if he persists in what has become non-consensual intercourse”. In this case, it wasn’t certain to the court whether initially the consent was given by the girl so the court assumed initial consent on the basis of the facts of the case.

During intercourse, the girl asked the defendant to let her go but the defendant stopped about sixty to ninety seconds after her final request (requests had been made more than once). The court decided that denial of consent was communicated physically and verbally to the defendant and that “no reasonable person in the defendant’s position would have believed that the survivor continued to consent to the act”.

The court further answered the contention made by the defendant that males should be permitted a reasonable amount of time to withdraw. The defendant gave his reasoning that during sexual intercourse, a male’s primal urge to reproduce is aroused and reasonable time should be given to pacify this urge. The court rejected this contention saying that this defense lacks legal authority and the provision under California’s penal code makes it quite clear that revocation of consent at a later stage would be a strict ‘No’ to continuing sexual intercourse even if it was given initially. Further, the court stated that the sixty to ninety seconds after the survivor revoked consent was sufficient to discontinue intercourse and the defendant took at least 4-5 minutes to stop. Thus he was convicted. 

So the evolution of the notions in the issue of post penetration can be traced through these case laws which showcased how the issue is being handled in only one part of the world and what all changes took place in policy and legislation leading to present laws being followed there.

Why the Lack of Legal Provisions on Marital Rape makes everything worse

Another problem regarding our issue at hand is marital rape. It’s not an uncommon situation where a spouse is being forced to fulfill the sexual demands of the partner and it is called a legitimate act under the cover of marriage – which according to ‘societal norms’ grants permission to force sex on a spouse. The problem becomes a lot bigger in those countries which do not recognize marital rape as rape and thus it becomes a lot more difficult to bring the issue of post penetration withdrawal of consent into those cases.

India is one of those countries where marital rape is not recognized by the laws of the land with the exception being that the age of the bride should be above 14 years. This tells us that how far we are from being civilized and how the traditional definition of rape is still working in the country. So the issue of PPW of consent in the marital life of the spouse would not be understood properly without understanding legal provisions for marital rape and before that – it would be important to discuss whether any recommendations were made as to criminalize marital rape and consider this crime not less than rape.

If we take a look at section 375 of the Indian Penal Code, it presumes consent i.e., if husband and wife are living together it presumes that consent for sexual intercourse is anyway given. Therefore under section 376 B, sexual intercourse by the husband without the wife’s consent when they are living separately under a decree of separation is punishable. So marriage itself provides for consent and this can somehow be understood from the language of provision with the exception in section 376 B.

Certain Law Commission reports provided reasoning as to why marital rape can’t be decriminalized. The 172nd Law Commission report, when in the consultation rounds, faced the question of the validity of the exception under the section (i.e., exception 2 of section 375). It was argued that how the exception is given any legal validity when any kind of violence by the husband towards his wife is criminalized. Exactly what the exception states is – “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Thus it was questioned why rape is being covered under the veil of marriage and is being shielded by the operation of law.

The Law Commission didn’t take this suggestion and rejected it on the grounds that criminalization of marital rape would lead to “excessive interference with the institution of marriage”. Then in 2012, a committee was formed headed by Justice J. S. Verma, in the light of the nationwide agitation seeking to make criminal law more efficient to deal with cases of sexual assault against women. This commission was made to give its report to the Law Commission.

The suggestions made by the Verma Report regarding marital rape were that marital rape ought to be criminalized and recommended deleting the exception clause under the section and law must specify that the accused can’t take the defense of his marriage while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing. Giving the reasoning for its recommendation, the report mentioned that this outdated notion of women being the property of men and irrevocably consenting to the sexual needs of their husband have been revoked by many jurisdictions and it’s high time that this notion is exterminated from our laws as well

When the Criminal Law Amendment Bill 2012 was introduced, it was seen that the recommendations of the Verma report on marital rape weren’t taken and when the bill was taken for public consultation, again it was suggested that the exception in the section be deleted. It was again refused by the report of the standing committee and mentioned that the “entire family system will be under greater stress and the committee may perhaps be doing more injustice” if they accept this suggestion and further clarified that remedies have been given under other provisions like under section 498 A of Indian Penal Code which defines cruelty.

Now what needs to be noted here is that the punishment for cruelty is lesser than that provided for rape. So what could be understood here is that how the graveness of the act of marital rape is decreased by making the provision of cruelty be the remedy for it. By doing this not only do the authorities make it seem like a lesser act but also forcing injustice on those whose physical and mental integrity is being destroyed by the very same person to whom the spouse is expected to trust the most.

Then again in 2015, the bill to criminalize marital rape was proposed by a Member of Parliament, which the Ministry of Home Affairs disaffirmed again – giving the reasoning that marriage in India is treated as sacrosanct and the concept of marital rape as understood internationally, cannot be applied the same in the Indian context. Some also argued that spouses can charge the husband under sexual assault in the Domestic Violence Act but this Act is a civil law that gives relief to abused wives. Under it, she can seek protection or civil relief, not criminal prosecution and as a nation, we need to recognize that rape by anyone is a crime.

What is the Judiciary’s role in Marital Rape cases?

There isn’t any single case law of rape where judges haven’t said how grave and unfortunate it is that someone can even think of infringing someone’s sexual privacy or right to their own body and destroy someone emotionally, physically and mentally for life. Not a single judge would have tried to defend rape if the survivor was abused by any stranger. But when the same act is done by someone in whom the survivor places their trust, the opinion of the judiciary on the same act, but in different circumstances, changes.

How can a grave act in any circumstance be justified or legitimized which takes away all the rights of the spouse and authorities not wanting to decide in the name of saving the “sanctity of marriage”? That the encroachment of the judiciary in this matter might crumble the institution of marriage which is so sacrosanct that basic human rights such as the right to a dignified life is not above this institution? It’s important to understand that humans aren’t made by institutions but these institutions are made by humans to have a secure life. But when the institution itself is making someone’s life hell, then no excuse should be big enough to save such a heinous crime under the garb of “sanctity”. 

Where we talk about legal provisions on marital rape like in the US, all 50 states have enacted laws against marital rape though the details of the offense vary by state. Because of the rape law reformers, it has been possible in these states to abolish marital rape along with the regressive and traditional notion of the wife being the property of the husband and that he can do anything with the spouse as he pleases. 

In the case before the Queen’s Bench in 2013, the wife didn’t give her consent to ejaculate. Husband said that he would ejaculate inside her as she is his wife and he’ll do it if he wants and he did ejaculate before she could push him out. Crown Prosecution Service declined to prosecute the husband and the wife sought a judicial review of their decision.

The High Court found that the facts would constitute rape whether the husband started intercourse intending to ejaculate or whether he decided that only once penetration had begun. Whichever it was, “he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her” and “she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based”. 

Joycelynne A. Scutt, Australian feminist lawyer and writer, in her journal has discussed Law and Public Policy in the background of rape in marriages. She discusses the notion that for good married relations, men fearing being charged in respect of their sexual activities with their wives rests upon a fallacy. She further discusses the opinion of one of the judges in the case of Dunn v. Dunn, Denning L.J. who states – “It is their duty to decide [such issues] . . . by agreement, by give and take, and not by the imposition of the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs which are their common concern. Neither has the casting vote…”.

She mentions that though public policy might support all ideas which give them reasons to save the sanctity of marriage it surely ought not to support what in effect are criminal acts, which can hardly be calculated to inspire, maintain, or preserve a happily married relationship. To imply that lack of provision for the protection of married women against rape where the perpetrator is the husband supports the marital relationship is to state that the aim of the law is to preserve relationships not where there is “equal agreement” by the parties, but where there is domination by one, subjugation on the part of the other, and where one partner’s sexual appetite is assuaged without regard to the sexual appetite, good health and well-being of the other.

Karuna Maharaj has discussed the issue of post penetration rape from a woman’s perspective and also tries to contextualize the socio-cultural and legal scenario in India. She questions the logic behind laws that demand proof of non-consent in the form of physical resistance and thus giving valid defense to the criminal act. She explains how post-penetration rape tries to wrest the power of self-determination from the male perspective and places it with the “victim” by challenging this idea of non-consent and questioning the “power” that suppresses all sex beyond the heterosexual marital bed.

She further elaborates why India doesn’t have specific laws on post penetration withdrawal of consent and why it’s still not considered rape in the country when consent is withdrawn later, although given in the initial stage. She explains that laws work on more mechanical and exhaustive terms, either consent should be given or it shouldn’t be given. Because of these binaries, this insufficiency stops legal provisions from exploring mixed forms of consent and thus preventing other forms of criminal acts from being included in the definition of rape.

How society perceives the survivor and what characteristics it attaches to the survivor so that it can be considered a “good victim” is another factor. She took the example of the Nirbhaya case for explaining her idea of a “good victim”. An article written on Nirbhaya’s case explains that Nirbhaya used to go to holy places with her male partner and even when they stayed together, all they did was hold hands. It explains how important it is to be represented as a “good” or “perfect victim” to make society believe that the victim couldn’t do anything which won’t fit our internalised victim parameters.

If the victim has been in a sexual relationship with anyone it is taken to mean that somewhere the victim herself is at fault for the offense against her. This differentiates them as those who “really” got raped and those who were “asking for it”. The legal and social understanding of acquaintance rape is seen to be heavily sexist in nature, a manifestation of male perceptions, standards and perspectives

More resistance to PPW of Consent

Furthermore, various reasons are given as to why post penetration rape can’t be criminalized and be put on equal footing with rape by a stranger. In acquaintance rape cases under which the issue of post penetration withdrawal of consent comes, it becomes very difficult to prove the aspect of consent and it can be used to defeat the purpose of the law and any innocent can be convicted. These are some of the suggestions posed by those who are against the criminalization of marital rape and thus against considering the act of rape if consent is withdrawn post penetration:

  • For corroborative evidence, emotional stress and mental trauma should be seen to ascertain the occurrence of rape. Rape Trauma Syndrome (RTS) can be used besides the testimony of the survivor to prove rape as, not all, but some do experience symptoms which include depression, insomnia, nightmares, anxiety, nausea, numbness, anger, crying and sobbing. Therefore, presenting evidence of RTS would greatly help in arriving at the right decisions and deciphering false cases from genuine ones.
  • Criminal prosecution against those who have made false charges.
  • Power relation between the accused and survivor could play a role in understanding the element of force while deciding the issue at hand. Force here won’t be narrowed down to physical force nor what the survivor did during that time but force in terms of what kind of relationship they had before the act. What were the past experiences of the survivor with the accused and what was his behavior towards the survivor? If the survivor had been beaten or subjugated in any manner in the past because the survivor felt that she had no authority or power to say no to the accused – it’s important to consider this larger notion of force here to understand the power play in the present day where prima facie no force can be seen.

Even though it’s been constantly emphasized how important it is to include other forms of rape under the definition of rape, there’s still no sign from the legislature or from the judiciary to take a step forward and come up with provisions for these issues. We need to have conversations about the sexual privacy of partners (not married but acquaintances) and spouses and them having the right over their own bodies – which shouldn’t be violated at any cost.

If we talk about marital rape cases, there can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person. But if in this scenario, the right to privacy of the wife is violated, surely this right would also be violated when there’s non-consensual sexual intercourse with the husband in absence of any separation. The right to privacy should not be lost by marital association.

Featured image used for representational purpose only. Image source: New Love Times

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