Can intoxication and sexual consent co-exist? Kaushik Gupta throws light on the legal issues involved.

Reader queries

I’m writing in about something that happened between two of my friends. Recently, after a party and some drinks, my best pal became intimate with his girl friend, who is also a friend of mine. But a day after the party my friend told me that his girl friend was upset and angry, and saying that what happened between them should not have happened. My friend said whatever happened on the party day was something his girl friend had consented to. He was at a loss about what wrong had he done to her, and so am I. Please advise.

I hope you understand that I can’t share their names, but in terms of age we are all adults.
Hari, Kolkata

Dear Hari

You have brought up an important point regarding how we understand consent, especially sexual consent. Unfortunately, neither our education system nor our social structure takes a proactive step to help us in understanding or learning about consent.

There are many dimensions to your query, and I will focus only on the legal aspects.

Consent, or the lack of it, is the deciding factor whether a sexual act between two or more consenting adults amounts to a violation or not. It is pertinent to mention here that under Indian law only a woman can be raped or only a woman can have her modesty outraged, and the perpetrator of such sexual assault can only be a man.

Quote: Consent, or the lack of it, is the deciding factor whether a sexual act between two or more consenting adults amounts to a violation or not. It is pertinent to mention here that under Indian law only a woman can be raped or only a woman can have her modesty outraged, and the perpetrator of such sexual assault can only be a man.There is no provision in law which penalizes a similar act done by a woman on a man. Therefore, the law imposes greater responsibility upon men to ensure there is no sexual consent violation.

Let me also digress briefly that till date, the law of the land, by the terms ‘man’ and ‘woman’, understands only biological men and women. With regard to sexual assault, Indian law still presumes ‘transgender women’ as ‘men’ and ‘transgender men’ as ‘women’ (unless they happen to be post-operative transsexual persons, that is, individuals who have undergone both legal gender identity change and sexual reassignment surgery). See also editorial note on same-sex sexual assault at the end of this article.

Coming back to your query – before entering further into the nuances of law, let us look at the issue from the perspective of common sense. If someone is intoxicated, then obviously their ability to assess the situation and take a rational decision diminishes considerably. Therefore, it cannot be said that they are in a position to give free consent by weighing the pros and cons of their act.

Hence, it is advisable for a man to not engage in any sexual act with a woman (girl friend or lover included), even if she is partially intoxicated and may not be in a position to give free consent. In fact, this perspective of common sense should apply to everyone, irrespective of the biological sex or gender of the sexual partners involved.

Legally speaking, sexual intercourse can be deemed to be ‘rape’ within the definition of Section 375, Indian Penal Code (IPC) under certain circumstances. The provision of Section 375 (Fifthly) clearly states that the consent for sex given by a woman in a state of intoxication is no consent at all. In other words, when a woman gives consent for sexual intercourse while being in a state of intoxication, she can later claim that she was raped. Similarly, sexual acts that don’t involve intercourse (sexual penetration) can also be deemed to be sexual violations under other laws if the consent to them is given by a woman in a state of intoxication.

In certain cases of allegation of rape where sexual intercourse has been proved, the law mandates, under Section 114A of the Indian Evidence Act, that if the woman claims that she did not give consent for the sexual act, then the law will presume there was no consent. The man will then have to prove by leading evidence that there was actually consent as claimed by him. If he fails to do so, then conviction can be based on the sole testimony of the prosecutrix if the same is reliable and unshakeable.

Quote: Let us look at the issue from the perspective of common sense. If someone is intoxicated, then obviously their ability to assess the situation and take a rational decision diminishes considerably. Therefore, it cannot be said that they are in a position to give free consent by weighing the pros and cons of their act.The Indian Contract Act defines consent under Section 13 as follows: “Two or more persons are said to consent when they agree upon the same thing in the same sense.” This Act also explains ‘free consent’ under Section 14 as consent that is not caused by coercion, undue influence, fraud, misrepresentation or mistake. It says, “Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake.”

The Criminal Law (Amendment) Act, 2013 has incorporated the meaning of consent for the purpose of Section 375 under the explanation as “Explanation 2 — Consent means an unequivocal 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.”

However, at the cost of repetition, it must be kept in mind that if a woman is intoxicated, then any “words, gestures or any form of verbal or non-verbal communication [that] communicates willingness to participate in the specific sexual act” will not be deemed to be valid consent at all.

Thus, apart from the emotional distress the girl is experiencing (which must be addressed), she also has grounds to contemplate legal action.

Editorial note: With regard to sexual assault of a man by another man, Indian law fails to acknowledge its existence unequivocally. Rather, it deals with the matter under Section 377 of the Indian Penal Code, which clubs all male-to-male sexual relations together, consensual or otherwise, as ‘unnatural offences’. Click here to read more about this matter. As for sexual assault of a woman by another woman, there is no recognition in law till date.

Main graphic credit: Pawan Dhall (a mix of Word Art and Clip Art by Microsoft Office).