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All You Need To Know About CONSENT Under Rape Law

The Nirbhaya act or Criminal Law (Amendment) Act, 2013 defines consent as the unequivocal voluntary agreement to participate in a sexual act. This means that there needs to be clear expression of willingness to participate. The act further clarifies that the absence of resistance will not imply consent. This means that consent does not have to be spoken and there is no need for her to say no explicitly. Women can show the lack of consent though other ways, such as gestures.

Consent is not something that is up for debate, there is no grey area. The partner has to make sure a woman is consenting and they cannot assume it. Consent is not only important for sexual activity that takes place in person, but for any sexual activity that happens online as well. No one has the right to send a woman sexual messages or pictures without her consent. Consent once given does not last forever either; it can be withdrawn at any time. A woman can say yes initially and then say no later.

However, in India, there is an exception in the case of marital rape. If two people are married, it is assumed that consent is always there, unless the husband and wife are separated, or the wife is under 15 years of age. So, even if the husband forces the wife to participate in any sexual activity, it is not a crime.

Another exception is in the case of statutory rape. In India, the age of consent is 18.This means that when a girl is under the age of 18, any consent she gives is not taken to be valid. The law assumes a person under the age of 18 does not have the capacity to give consent. This law has been enacted to protect minors.

The laws governing sexual offences in India are not gender neutral. According to the Indian Penal Code (IPC), only woman can get sexually assaulted or raped. In case a man has been sexually assaulted or raped, he can file a case under criminal force or assault. However, boys under the age of 18 are protected from sexual offences under The Protection of Children from Sexual Offences Act, 2012. The age of consent for men is 18 as well. This means that if a boy is under the age of 18, any consent given by him is not taken to be valid.

Transgender persons who do not identify as a woman have no remedy against sexual harassment or rape under the IPC. On the other hand, transgender woman do. The Delhi High Court has said that the law for sexual harassment of a woman should cover ‘transgender woman.’ Therefore, using this judgment, transgender women can seek protection under all sections of the IPC which protect women against sexual abuse. Transgender persons are also protected under the Transgender Persons (Protection of Rights) Act, 2019 (TPA), which makes it illegal to abuse any transgender person sexually.

Persons of all gender are also protected under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act was enacted to protect people at the workplace and has policies which are gender neutral.

In case you feel you consent is being violated, remember that it is not your fault. It never is. Speak up and stop the act then and there if you can. If it is sexual harassment happening in a public place you can try and draw attention.

If you cannot stop the harassment, then go to a safe space as soon as you can. Note down all of the details of the incident you can remember, such as the time the incident took place, the place, how many times it has happened(if more than once), what the person looks like, if there were any witnesses. Preserve all the evidence. This can be anything, photo of the person, photo of their vehicle number. Preserve any DNA evidence of the accused such as hair or body fluids. In the case of rape, do not take a bath or wash your clothes. Take them straight for a medical examination.

Then, go to the police to file a complaint. Ideally a police complaint should be filled as soon as the incident takes place. This will help the police to take fast action and will prevent any evidence from getting lot. Nevertheless, a police complaint can be filled later as well. The police will note down the reason for the delay. This is because in cases of sexual harassment and rape it might not be easy to file a case right away due to mental trauma and stigma. You do not have to go to the police station personally to file a complaint, someone can go on your behalf. While it is not mandatory, it is ideal that you should file a police complaint in the jurisdiction where the crime is committed.

At the end of the day, the most important thing is you and your health. Do whatever feels right to you.

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