A New Paradigm : Redefining Consent and Deception in Rape.

 

A New Paradigm: Redefining Consent and Deception in Rape

The notion and the modus operandi of the rape and its laws have gone through various changes as the contemporary situation warrants. The traditional definition of rape implies the use of force and the absence of consent from the victim side. The classical definition of the rape requires the forceful or coercive means or the method of snatching away the autonomy of the women. Women’s sexuality and reproductive capacities have for by millennia been understood as men’s property.

The use of force and the often-related expectation that a victim/survivor ‘fight back’ or outwardly resist the sexual activity for it to be classified as rape, is increasingly being abandoned as a legal criterion following years of research into victim/survivor experiences and survival responses. This shift recognizes that exhibiting physical or verbal resistance may be unsafe or impossible in the moment[1], and thus that the absence of resistance cannot be assumed to indicate consent for sexual activity. Many scholars and reformers argue that rape should be regarded as the crime against sexual freedom instead of crime of physical violence.[2]

Consent, at its core, is predicated on the notion of voluntariness and autonomy. It implies that individuals have the capacity to make decisions freely, without coercion or manipulation. Fraudulent misrepresentation involves the deliberate distortion or concealment of material facts to induce another person into an agreement or transaction. In criminal law, consent obtained through such deceitful means is often deemed invalid. Analysis of consent in criminal law necessitates an interrogation of powerp dynamics, relational contexts, and structural inequalities that shape individuals' capacity to provide genuine consent. It would logically follow that obtaining consent through deceptive practices would be widely considered invalidating. This would include misrepresenting one’s social status, wealth, personality, etc., as a means of obtaining sex, as well as assuming a false identity.

Deceit as much as force negates consent

When people lie to obtain money, we call it theft[3]. When they lie to enter property we call it trespass. When they lie to obtain sex, we have no idea what to call it.[4] Sex obtained without consent is rape and consent obtained by fraud, deception or misrepresentation is no consent. Therefore, sexual intercourse for which a woman’s consent is obtained by deception should be rape.[5] First, there is a debate in the literature about whether consent should be understood primarily as a subjective mental or psychological state, or instead as a communicative or performative act.[6] The argument for this position consists of three steps:

·        First is the idea, embraced by most contemporary criminal law theorists, that rape should be understood as involving a violation of a victim’s sexual autonomy.[7]

·       Second is the notion that X's sexual autonomy is violated, and rape is therefore committed, when she is subject to sex without her consent.

·     Third is the claim that deception negates consent just as thoroughly as force.[8] “Deceit, as much as force and threats, can ‘negate consent.’

Deceit, like violence, manipulates people into acting against their will. Like threats, deceit restricts the options available to another. It does this by making the other unaware of the options the other has available. Restricting the information on which a person makes a choice can be as inhibiting of a free choice as making an option unattractive through a threat. Sex-by-deception causes grave trauma to the victim and may cause a lifelong disability to become intimate ever again. The victim faces long term psychological damage after discovering the truth which may engender a fear of men in her.[9] The breach of trust and the consequent violation of body and dignity may cause deep depression, sleeplessness, loss of appetite and frequent panic attacks.

Deception of Promise

Marriage is considered to be the sacred, moral and religious institution emotionally driven. It is a praiseworthy achievement and triumph in the patriarchal society that laws is crafted assuring the autonomy of women as equal to man. In context of Nepal, still the domicile of women is dependent on men which can be corroborated by Section 87 of the Muluki Civil Code which reads - Except where a separate residence is fixed by mutual understanding of the husband and wife, the husband's home shall be considered to be the wife’s residence. Males have more realistic attitude about marriage while female have more emotional attitude towards it. Males think that marriage is a legal sanction for sexual relationship, a gateway to bearing children and emphasize good planning to take it on. Females think marriage can determine happiness or sadness based on the nature of husband they get.[10] Even now, marriage is the inducement that could compel women to enter into sexual relationship and this sanctity of marriage is celebrated in society like ours. Nepalese law has dealt the question of consent, marital rape by misrepresentation, fraud and deception in the rape laws but there are not enough jurisprudence in context of Nepal in regard to deceitful practices that amounts to rape, and its legal dynamics.

Consent taken with the misrepresentation amounts to rape.[11] Rape by misrepresentation, also known as rape by deception or rape by fraud, refers to a situation where sexual intercourse is obtained by deceiving the victim about the nature of the act itself or the identity of the perpetrator. In these cases, consent is obtained under false pretenses or through deceit, rather than freely given with full knowledge of the situation.  Rape by deception involves sex obtained through[12]: (1) fraudulent medical procedures, (2) Spousal or other impersonation, and (3) misrepresentations regarding the offender’s sexually transmitted disease.[13] Though deception of marriage is not explicitly mentioned in the code elsewhere, it falls under the purview of misrepresentation, undue influence under the ambit of Section 219 of Penal Code.

Proving that a promise to marry was deceitful can indeed be complex. It often requires evidence that demonstrates the intention of the promisor to deceive the promisee regarding their true intentions regarding marriage. This evidence might include communication, actions, or other circumstances that suggest the promisor never intended to fulfill the promise of marriage or knowingly made false representations about their intentions. For instance, evidence of the promisor having a secret spouse, maintaining multiple relationships simultaneously, or consistently avoiding discussions or commitments related to marriage despite promising otherwise could indicate deceitful intent. This topic has to be clear because it is possible that generalization can happen that even breaking up of the couple subsequently amounts to rape.

The offence is complete only when the accused had no intention or inclination to marry the victim right from the beginning.[14] Promise being a fraudulent intent from the very starting point of interaction with the victim is a sine qua non of the offence. Guilt cannot be established when the accused actually intended to marry but could not do so because of factors beyond his control.[15] These factors can range right from opposition against marriage by his family members7 to lack of monetary resources for the ceremony of marriage. The falsity of the promise can be established only when proved that the idea of not keeping it was firmly rooted in the accused’s mind.

Different kinds of deception will have a differential impact on how informed the resulting choice is. Some choices will be misinformed because of affirmative misrepresentations (active deception), whereas some will simply be uninformed because of failure to disclose material facts (i.e., passive deception). If we look after Section 71 of Muluki Civil Code 2074, the marriage done through the misrepresentation is deemed voidable. The essence behind this clause is the misrepresentation defeats consent requirement provisioned in Section 70(1) (a). But this is slightly different from rape by deception or misrepresentation because in this case, the victim is induced on the surety of the marriage on some lie. In prima facie, the consent in the sexual relationship seems to happen but in the light of criminal jurisprudence, the consent is tainted by the misrepresentation. The basic test which is checked here is the good faith test and bad faith test. The "good faith" test examines whether a party acted honestly and without deceit or intention to deceive. It focuses on the sincerity of the party's beliefs and actions, ensuring that they were not misleading or fraudulent in their representations. Conversely, the "bad faith" test assesses whether a party knowingly misrepresented facts or acted with deceitful intent, aiming to mislead the other party into consenting under false pretenses. These tests are crucial in determining the validity of consent in cases where misrepresentation or deception may invalidate a contractual or marital agreement.

 The misconception of fact about promise to marry has to be in proximity of time to the occurrence and cannot be spread over a long period of time coupled with a conscious positive action not to protest. To understand it more it implies two things:

Implied Acceptance: When someone receives a promise to marry and does not protest against it or actively challenge its validity or existence, their behavior may imply acceptance of the promise. This means they may be seen as acknowledging or agreeing with the promise, either explicitly or implicitly.

Conscious Positive Action Not to Protest: This part of the statement suggests that the person was aware of the promise to marry but chose not to take any action to dispute or reject it. Instead, they may have behaved in a way that suggests they accepted the promise as valid. This means that the protest done within a reasonable period of time is only recognized in the eye of law.

The Bombay High Court has held that if a promise to marry is genuine and the couple has sex, the man’s subsequent failure to fulfill the promise to marry cannot be considered rape.[16] Initially, a boy and a girl genuinely may want to marry and are true to their emotions and establish sexual relationship, however, after some time, they may find that they are not mentally or physically compatible and one decides to withdraw from the relationship. Under such circumstances, nobody can compel these two persons to marry only because they had sexual relationship. There may be moral bonding between the two persons when they indulge into sexual activities with promise to marry and it is also a fact that ultimately women only can remain pregnant and therefore, she suffers more than the man. However, in law, this cannot be labeled in any manner as a rape. In other words, the act is not rape unless the prosecution proves that the man who obtained consent on the pretext of marriage did not intend to marry the woman when the act of penetration occurred.[17]

The test of subsequent action

It is checked whether the subsequent action of the defendant leads to breach of promise or not. It explores the issue of promissory estoppel in the context of a promise to marry. The court analyzes whether the plaintiff had relied on the promise to her detriment and whether the defendant's subsequent actions constituted a breach of promise. Reasonable reliance means that the plaintiff took the defendant's words or conducts seriously and acted in accordance with their belief in the promise to marry. The plaintiff must have suffered some form of harm or detriment as a result of relying on the promise. This could include emotional distress, financial loss, or other negative consequences.

The test of personality

The age and education of a woman are held to be very relevant in deciding not only the culpability of the accused but also the voluntariness of the victim in such acts.[19] A major and educated woman is supposed to know the nature and quality of the act and hence her participation in sexual intercourse is not to be taken to be completely obtained by fraud.20 She should know the consequences of having pre-marital sex. She is presumed to possess sufficient intelligence to ascertain the moral quality of the act and the consent given by her on a promise of marriage is given only after due deliberation on the pros and cons of indulgence in sexual intercourse before marriage.[20] The only essence behind this test is that compared to the uneducated women who could be easily manipulated and vulnerable, the presumption with the educated women goes voce versa. But it would be unjust to deduce this and generalize in all forms of cases.

The Materiality Test

It is tested whether the promise is material to her consent. In some cases the accused may not have knowledge or reason to believe that the consent was only a consequence of her belief in his promise. He may firmly hold that consent was a result of her deep love for him. In such a case, courts negate the establishment of rape. The court may put another burden on its shoulders, i.e. to prove that the consent for sexual intercourse was given solely on the basis of the promise made or assurance given by the accused and so did the accused know or believe.

Conclusion

In conclusion, the evolving understanding of rape law reflects a significant shift towards recognizing the autonomy and volition of individuals in sexual interactions. The concept of consent, central to these discussions, underscores the necessity of genuine, informed agreement without coercion or deceit. While legal frameworks differ, the principle remains clear: sexual intercourse obtained through deception or misrepresentation undermines this consent. Whether through false promises of marriage or other deceitful means, such actions violate trust and autonomy, causing profound harm to victims. Therefore, ensuring clarity and consistency in legal definitions and interpretations is crucial to safeguarding individuals from exploitation and upholding the integrity of consent in all forms of sexual relations.

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[1] Nepal Government on the behalf of Changed name "Maya" v Yadav Prasad Ghimire, Decision number 9335

[2] Stephen Schulhofer, Taking Sexual Autonomy Seriously: Rape Law and Beyond, 11 Law & Phil. 35 (1992)

[3] State v Hogrefe, 557

[4] YALE LAW & POLICY REVIEW, Solving the Riddle of Rape-by-Deception, Luis E. Chiesa

[5] Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 The Yale Law Journal 1372, 1376 (2013).  

[6] Alan Wertheimer, Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003), 144– 162.

[7] Joan McGregor, “Force, Consent, and the Reasonable Woman,” in Harm’s Way: Essays in Honor of Joel Feinberg, eds. Jules Coleman and Allen Buchanan (Cambridge: Cambridge University Press, 1994), 231, 236

[8] Jonathan Herring, “Mistaken Sex,” Criminal Law Review (2005):511

[9] Jennifer Temkin, Towards a Modern Law of Rape, 45 The Modern Law Review 399, 403 (1982)

[10] Attitude of present generation towards marriage in Nepal, Pralhad Adhikari, Department of Psychology & Philosophy, 7

[11] Muluki Criminal Code, Section 219(2) (a)

[12] Lies, Rape, and Statutory Rape, Stuart P. Green, page 225

[13] Mululi Criminal Code, Section 219(6)

[14] Patricia J. Falk, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud, 123 The Yale Law Journal 353, 361 (2013).  

[15] Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, ¶ 21.  

[16] Akshay Manoj Jaisinghani v. State of Maharashtra, Anticipatory Bail Application Number 2221/2016, at ¶7

[17] Mrinal Satish, “Forget the Chatter to the Contrary, the 2013 Rape Law Amendments Are a Step Forward,” The Wire (22 Aug. 2016)

[18] Campbell v. MGN Ltd (2004)

[19]Tilak Raj v. State of Himachal Pradesh, (2016) 4 SCC 140, ¶ 16  

[20]Diptesh Roy v. State of West Bengal, 2015 SCC Online Cal 8375, ¶ 8