Consent And Consequence: Unpacking Flaws Of The New Sexual Misconduct Law

A man accused of rape or sexual misconduct and then acquitted is never considered an 'innocent' person by society.

Perhaps, this reality never reached lawmakers, which is why Section 69 of the Bharatiya Nyay Sanhita (BNS) is blatantly discriminatory towards one gender.

According to Section 69 of BNS, if a man gets a woman's consent for physical intimacy by promising that he will marry her in future and then goes back on his promise, he will have to languish in jail for up to 10 years.

Strangely, the code explicitly 'refuses to call it rape', a bad attempt to deny its origin.

In a legal system running on Indian Penal Code (IPC), this phenomenon is called ‘rape on promise of marriage’. Remarkably, IPC does not contain provision for it under Section 375. It is a judicially evolved concept based on ‘consent’.

Rape is criminal because a woman does not give her consent (agreement) to a man’s advances and is not willing to. That is why when a man gets consent by promising her to marry sometime in the future, and doesn't mean it, judiciary terms it rape on false promise of marriage. The reasoning is that consent has been obtained by fraud and misrepresentation.

This proposition is decades old, a time when even talking about equal rights for women was considered taboo. The need arose because the lower judiciary had to find a way to secure justice for women who were not technically raped but still found their bodily autonomy violated.

While there was/is no problem with intention behind it, the execution opened a Pandora's box of problems. There are two big problems with the proposition.

Firstly, Section 69 infantilises, and henceforth treats women as subservient who are not capable of applying their rational sense of judgements to a particular situation.

This is the same idea based on which women have been subjugated by society in the name of protectionism. The only difference is that instead of local societal heads, it is the modern state that is taking up that role.

Section 69 is not gender neutral. While the technical definition of rape does not strictly require it to be gender neutral, there is strong case for rape on false promise of marriage to be gender neutral. When the consent is verbal, it is true on the same level for both genders.

So, if a man can lie about his promise to marry a woman, there is no reason to believe that a woman can’t lie about her intentions. It is an observable reality, though women’s reasons behind turning away from marriage promises are different from their counterparts.

However, the same principle does not work for men, because of prevailing social norms of women needing protection otherwise their ‘chastity’ will be violated. By framing a law or legal principle around her giving consent for intercourse, the polity reinforces the concept that marriage is a major temptation for a woman, otherwise it is not prudent for her to exercise her sexual choices.

That kind of deliberation around consent of men is not prevalent in society. The presumption is that men’s sexual agency does not require protection since they are physically stronger. To protect men, it is time to evolve beyond physical strength rigidity and be more nuanced to the mental aspect of it.

In 2022, Justice A Muhamed Mustaque of Kerala High Court had given a strong remark on the societal and legal double-standards. “Section 376 is not a gender-neutral provision. If a woman tricks a man under false promise of marriage, she can't be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral," said Justice Mustaque.

The Karnataka government also endorses this viewpoint.

The second flaw with 'rape' on false promise of marriage proposition is that the onus of proof is on the accused. It means that if a woman says that she has been raped by a man, the court will assume it to be true and the man has to prove that he did not do it. It goes against the fundamental legal principle of ‘innocent until proven guilty’.

With every accusation she hurls (sometimes running in dozens), the man has to pile up documents proving that he did not do it.

It allows a woman to accuse a man of rape, even though they rarely met in person. It is like if the word is proof in itself, why not lie. Multiple cases of online blackmailing after online dates have been reported.

Even when people are in love and due to certain reasons the boy could not marry, love gets framed as brutality of rape in front of advocates and judges.

The phenomenon is catching on in the last decade or so. Accusation of rape on false promise of marriage constitute more than 50 per cent of rapes in multiple states and even Tier I cities. Data around how much of them were true is not available in the public domain, but multiple judgements do tell an evolving story.

In February, Bombay High Court held that just because a boy backtraced from the promise does not mean that he has committed rape. It advocated for more introspection into reasons for backtracking.

Similarly in March this year, the Supreme Court termed it an abuse of legal process when a married woman approached the court stating that her consent had been obtained by promise of marriage.

Numerous other judgements and observations have pointed towards the misuse of this law.

Despite that, the government came up with a specific section about it in the new BNS. The only good thing it did was not terming it as rape.

Prafulla Sharma, an advocate practising at Supreme Court of India says, “The new section 69 BNS is nothing but a reproduction of rape on false promise of marriage proposition — expanded by the judgement of the Honourable Supreme Court, except it sheds the absurdity of terming a consensual act as rape.

"Section 69 is not just marred by the pernicious risk of gross misuse but also reeks of impracticalities. The intention of the legislature may be good but it will be the most misused sections. It will only lead to the hardship of the accused,” he added.

The usual rebuttal to it is that not all women level false accusations. The problem is any woman can, and law can't do anything about it. In order to protect one, good laws do not victimise the other.