Consent 101: Navigating Consent in modern day India

Sexual intimacy should be voluntary. If it is not voluntary, then it is illegal… if you are unsure, refrain. Consent means a completely voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Consent must therefore be (1) unequivocal and (2) freely given, for it to be valid. Understanding and application of consent should be obvious in sexual encounters, but sadly isn’t.

The global conversation around consent deserves our attention. In India, over 133,000 cases of rape were pending before the Indian Courts, data from 2016 National Crime Statistics Bureau Report indicates. However, despite reforms in the sexual harassment and rape laws in India in 2013, some courts have still refused to acknowledge the agency of the survivor, often questioning her character or misinterpreting the law and placing the burden of proof to indicate that there was no consent, on the survivor.

Let me give you an example, have you ever not been hungry and still been forced to eat? You have expressly said that you do not want to eat (you don’t need to justify your lack of hunger), and yet someone has coerced you to eat, or eat more than you wanted to. Have you ever experienced being forcefully fed? Would you enjoy being coerced to eat or being fed forcefully? When your free will pertaining to your body is ignored and your unequivocal declination has been overridden, your consent has been violated. Is it not simply understood that if you want it, you can just ask for it? This article explores the modern-day nuances concerning the issue of consent.

Consent may be withdrawn:

Recently the UP government launched an ad campaign with the hashtag #ANoMeansNo with the tag line, “Even an app understands the importance of consent, why can’t you?” alluding to dating apps. In the late 90’s and early 2000’s, the Indian Government had also released a TV ad campaign showing “na ka matlab na hota hai”. The values these campaigns try to imbibe are quickly forgotten in our society where 106 rapes occur every day. And those are just the ones being reported. The trickiest part in understanding consent seems to be that it can be withdrawn by either party at any point. What people don’t generally understand is that ‘sexual interaction is a spectrum of shifting desires that crystallise from mmm, maybe to yes, absolutely, or no, not now, or not ever at a different pace, in a different way for everyone. Respecting that choice, expecting that choice is consent’. Sex turns into sexual assault or rape when consent is rescinded.

No Blanket Consent:

You can swipe right on an app meet a stranger and share a healthy flirtation and not consent to sexual contact. You can have an intimate history with someone and not consent to an act today. You can be in the throes of passion with a partner and not consent to a particular sexual act. You can withdraw consent at any point. Consent is not given in perpetuity, which men, particularly in India seem to struggle with. Alarmingly men were bolder in breaching limits of consent where they had a sexual history with the woman. “The woman’s verbal refusal was not enough to change their belief that she had given consent to intimacy.  

The issue of consent raises certain alarms in the Indian context where no conversation can be complete until we have criminalised marital rape. The United Nations has declared marital rape as a human rights violation. The right to self sexual determination is an inalienable human right. It might not surprise you to know that India is one of the few countries, in ranks with Sudan, Ethiopia, Syria, Afghanistan, Bangladesh and others, where marital rape is not a criminal offence.  

Consent and #metoo:

The #metoo movement has exposed the casualness with which we treat the agency of a woman and her right to agree or decline a proposition. The #metoo stories, all experienced by a diverse group of women, in different professions, geographic locations, ages, races etc, have one thing in common: they were all put in a position where their consent was violated. Coercion, abuse of power, threat, intimidation, blackmail, do not equal to consent. A woman who submits to the perpetrator, for fear of physical violence, or loss of economic opportunities at workplace, or other any form of manipulation aimed at diluting her agency, cannot be said to have consented with free will and unequivocally.


Consent and alcohol:

Understanding consent when inebriated or under the influence of alcohol or drugs can be challenging. It should be obvious that when a person is unconscious they cannot give consent. Drinking alcohol and using substances can affect our ability to communicate clearly, and may also make us more prone to disregard cues from our partner, indicating consent or lack thereof. One of the cultural issues when discussing consent in situations involving alcohol or substances, is that often the character of the woman is determined and her consent is considered implied. Women who drink are viewed as more sexually forward. This is a social perception we hope to overcome over time, however, consent can never be imputed from alcohol consumption or past sexual history or otherwise. Consent must be unequivocal. Simple rule to remember when considering whether you have received consent in a particular situation is: When in doubt, bow out!

Consent and technology:

Talking about consent in the technological sphere is a conversation that requires deeper understanding of sexual behaviour. We must understand that consent is not static but rather something that must be continually sought and given over the course of interaction. A right swipe on an app or accepting a friend request on any app is not a blanket consent to tolerating any sexual misbehaviour or inappropriateness. All those bio’s proudly proclaiming “I like to talk about things you’re not supposed to talk about in polite company” are basically letting you know in advance that they will shove conversations or masterfully redirect all conversations to sex. If you then swipe right, have you consented to their behaviour in advance?

Inappropriate sexual behaviour and misconduct ranges from sending unsolicited ‘dick pics’[9], to someone constantly talking about sexual acts and fantasies even when you have indicated that you do not want to discuss the same, to someone masturbating to your voice or video over a call during an innocuous conversation. If it hasn’t been clear, you require consent for any and all of these stages. Although in a consensual context, such conversations can be extremely liberating, when initiated or persisted without consent can be extremely uncomfortable and potentially scarring. Without consent, inappropriate behaviour over technology is sexual harassment.

Consent isn’t black and white — nor is the cultural, political, emotional space around it, but it is fairly easy to navigate when you recognise your partner as a human being and afford them the same dignity and treatment that you would expect for yourself.

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