Helplessness in the face of imminent coercion cannot be seen as consent, the Kerala High Court said on an appeal filed by a convicted rape convict.
Judge R. Narayana Pisharadi said in his ruling that simply because the victim was in love with the accused, it cannot be assumed that she consented to intercourse.
The court said that there is a huge difference between consent and submission, and every consent implies submission, but the opposite does not follow.
“Helplessness in the face of inevitable coercion cannot be considered consent, as it is understood in the law. Obtaining consent requires a display of intelligence based on knowledge of the significance and moral effect of the action. Just for the reason that the victim was in love with the accused, one cannot assume that she gave consent to sexual intercourse, ”the court’s ruling of October 31 says.
The court considered an appeal by 26-year-old Shyam Sivan against his conviction and subsequent conviction by the trial court under various sections of the Indian Penal Code, including section 376 on rape.
The accused in 2013 took a girl with whom he was related to Mysore and had sexual intercourse with her without her consent, the court noted in its decision. He also noted that the defendant sold all of her gold jewelry and then took her to Goa, where he raped her again.
“Her testimony shows that he threatened that if she did not go with him, he would commit suicide in front of her house,” the court noted.
The court stated that even if we assume that in subsequent cases she did not offer resistance to the actions of the accused, it cannot be established that it was with her consent that the accused had sexual intercourse with her.
“It can only be established that this was a passive statement made by the injured girl under unavoidable circumstances, since she had no other choice,” the court’s verdict says.
However, the court overturned the POCSO conviction because the victim’s age was not proven.
Meanwhile, it states that the actions of the accused clearly constitute crimes punishable under sections 366 and 376 of the IPC (kidnapping and rape).