Saturday, March 18, 2006

Consensual Sex or was it …. Rape?

The recent Kasliwal episode set off a train of thought in me.


For those who have come in late, 26 year old Abhishek Kasliwal, the scion of the Kasliwal Khandaan, has been accused of the rape of a 52 year old woman. He is alleged to have offered her a lift at 2.30 am, driving her to his Mill compound in Worli instead of Mumbai Central Station, consuming alcohol along with her and then repeatedly raping her.

To make matters worse for him unconfirmed reports state that another lady, this time a call centre employee, has also accused him of raping her on the Mumbai-Pune highway.

In the past 24 hours we have had some other interesting characters joining the act and there have also been some flip flops by the victim, but without going to each one of them, if Kasliwal is indeed guilty of these crimes then he should be punished as severely as possible. Women face enough problems in India without rich, spoilt brats adding to them just because they could not keep their testosterone under control.

Oddly enough, however, my attention and my thought process was not focused on the alleged rape but wandered off in the direction of what the Defence had to say. “It was sex by consent.” That was the argument. Without going into the merits of the case I needed to figure out: when precisely does sex by consent turn into rape? And how exactly do you define consent? Is it given verbally? Is it on the basis of physical cues? Is it based on emotional cues? And what is the window of time, for consent given to be withdrawn?

These questions might sound incongruous in this day and age when crimes against women are getting common place and worse still are going unpunished but, really, how does one define CONSENT.

Let’s say, for argument’s sake that I am bowled over by this lady and decide to make love to her. And for some unfathomable reason believe that the lady in question will have no objection to “doing it” with me.

Not that it is likely to happen. We all know that women are not exactly queuing up outside my house to have sex with me. But then again maybe she is doing it to win a dare. Whatever! She is game.

I invite her to my small yet elegantly! done up flat, put on some romantic music, order dinner, have a sparkling!! witty!!! meaningful!!!! soul-stirring (more!!!!) conversation and by and by she falls under the mesmeric spell cast by me and gets to the point where making love seems the most logical outcome even to her.

In the cold light of the day when I tend to lose my attractiveness, she wakes up, takes one long look at me and decides: Oh! God, what a humungous error. She storms out swearing that she had not bargained for the evening to have gone all the way.


Would this be consensual sex where the lady in question has made an error in judgement? Or would it be rape?


Now I understand an unambiguous NO. I respect that. But seriously, what I want to know is when can a lady say no?
Before the act?
In the run up to the act?
During the act?
After the act?When is it OK for her to complain?
And how do I prove that sex was consensual?
Is there a declaration form that has to be filled in and signed by both parties to prove that I am in the clear? Just a bit confused here.

If the lady says no; but thanks to my incessant pleading, pleading mind you, not threats not physical assault; the lady agrees to what Liv Tyler famously called a “sympathy hump” could she change her mind later? And get me into trouble?

When, even in the throes of passion, the lady sticks with her decision that petting is just how far she is willing to go and no further and that penetrative sex is definitely not on then it is a very clear, very unambiguous message. It is a let down but one accepts it. Like a gentleman. If one did not pay heed to this unambiguous NO and went ahead nevertheless then that is undoubtedly rape.

But if she too goes with the flow of things and then in a gush of remorse decides that she was cajoled/coerced into it then it is grossly unfair.

A big girl should take responsibility for her actions. Not say, “Oh! I did not know that just because he offered me a lift at 2.30 am, drove me to his Mill compound instead of Mumbai Central Station and plied me with alcohol, he had sex on his mind.”

Mind you, I defend a lady’s right to travel at the time of her choosing, will defend her choice of beverages, and will defend, in general, her right to make her lifestyle choices. Defend them to death. But with freedom should also come a degree of awareness of the danger(s) involved.
Am I trivializing the very serious issue of rape and crime against women? I hope to God that this post is not taken in that manner. Because I am not.

Especially not when Navi Mumbai is reeling under violence triggered off by some drunken lunatics who harassed a lady who did not wish to play Holi. Especially not when one reads of minors being raped by their guardians. Especially not when today there is another instance of teen rape reported in the newspapers.

Once again I am not trivializing the issue of rape just that I am trying to look at the other side. After all justice should be impartial should it not?

32 comments:

Pieter Joubert said...

Judgment?

Priya said...

I totally belive that every individual is responsible for his or her actions, & if the lady chose to travel with him, drink with him at that hour of the night either she knew him very well & entirely trusted him or had no other choice but to do what she did. A lady of her age is expected to know what all this could lead to and take the necessary precautions.
If u want to say 'No' to the man ur with it should be no at the very begining, not half way through or at the end of it all. & if u agreed to do it in the first place & then repent, u hav no right to cry 'Rape'
The law should be VERY HARD on rapists but should also ensure that no woman can take undue advantage of it.

yash gupta said...

Gautam, You have a very good point that you have expressed here. I believe you should also have written about the arguments given by the defences just to make things clearer-that he could not have had enough energy to rape her multiple times in "his car". yes thats where i read it ws done. if she was trying to defend herself, he couldnt have gotten as far as doing it for the 2nd time. he`d be totally exausted! and if she didnt even try to stop her, it was consensual! i`ve nothing else to say...you`ve mentioned everything and its so right!

Patrix said...

I disagree with Priya a lil. And I want to address Yash's 'multiple time theory hence it was consensual'.

Saying no any time either before or during sex is a NO. Disappointment after sex is definitely no grounds for rape but we have to understand that rape is less about sex and more about power...power of man over woman (the traditional weaker sex). That leads me into Yash's argument. It can happen multiple times if the man has subjugated the victim into unconsiousness or even partial consiousness. Rape is never gentle and is always preceeded with violence.

Red said...

If it helps, the rate of convictions for rape is SO low that its unlikely that Mr nice guy will ever get prosecuted.

Also, you have to realize that a rape charge is a very difficult one for a woman in India to make. Most rape cases in India go unreported. The judicial proceedings are terribly harsh on the woman and her past life is opened up to the glare of publicity. I remember one of my professors telling us in Criminal law class, that no matter what the legal decision, a woman ALWAYS loses in a rape case.

Aishwarya said...

I'm going to make myself sound a little extreme here, but I don't think "she didn't say no" is enough; I think the woman has to give verbal consent, and consent uninfluenced by alcohol, drugs, etc. Complaining that a woman didn't gie a firm, clear verbal NO makes me a little uncomfortable, because it assumes that 'yes' is the 'default' answer and doesn't need to be said, while 'no' does.
This may lead to awkward situations, but honestly, asking "are you sure you want this?" really doesn't hurt.

Also, as Red pointed out, the amount of shit a woman has to go through when she accuses a man of rape makes it very unlikely that a woman is going to falsely accuse a man of rape. I'm sure it has been known to happen. But rarely.

newageindian said...

Its better to conduct Lie detection test using brain mapping and narco-analysis to get the truth.

Th entire procedure costs about Rs.10,000/-.

As Indian Judicial system is completely dysfunctional, its better to bring in some technology.

Btw, we must also oppose trial by media in such ambiguous cases.

Anonymous said...

Aishwarya, this has nothing to do with the Kasliwal case -- I have no idea what was going on there -- but yes, your idea is a bit extreme and extremely impractical. Let's not get carried away and make ourselves ridiculous. What you say may work in theory, it may work with gentlemen out of P G wodehouse who have never existed, it may happen in romantic comedies, but with two normal, real people, in a real-life situation, it's extremely improbable.

Anonymous said...

Nachiketa
You stop when the lady says so, even if it is during the act...that is my philosophy.
March 18, 2006 01:31 PM

Obviously, the lady can't change her mind after the fact. It has to be before or during the act. As a graphic example - if you feel there is a need to pin the lady down or in any way restrict her movements during the act, chances are you are crossing the line.

Pre-arranged acts of bondage, SM are an exception to the above rule.

In the Kasliwal case, my understanding is that the woman was a sex-worker, but had bruises and a broken arm as a result of the alleged assault. Based on this physical harm, I would tend to believe the victim at this stage.

Anonymous said...

makes me think, can a man be ever raped?(by the opposite gender)

Vishwa
March 18, 2006 02:04 PM

Anonymous said...

good question... a serious question..

and the answer...
if a woman says 'no' before or during the act..

heh! you would like to believe so...
But I think ...
the law is quite in favour of the woman.

Sharon stones of the world can afford to flaunt her Basic Instincts... but, Michael Douglas beware.

Bhaskar aka Joey Tribbiani
March 18, 2006 02:14 PM

Anonymous said...

Sure men can be raped by women once he is physically restricted- bondage, handcuffed etc.....

But the $100 dollar question is would they come forward about the violence committed against them?
deepti lamba
March 18, 2006 04:28 PM

Anonymous said...

Sexual abuse is not confined to women only...men are also violated...ask or read about inmates in desi jails or indeed jails everywhere...not only that...the church is implicated all over...read about this:
< href=http://www.boston.com/globe/spotlight/abuse/>Abuse in the Catholic Church.
and for a canadian report CLICK and HERE
the first step is get over denial and become more aware...read about Is chemical castration an acceptable punishment for male sex offenders? HERE

temporal
March 18, 2006 05:38 PM

Anonymous said...

deepthi

in such cases,
im curious to know,
how many men do u know who would 'not want' 'it' through out the action?
Vishwa
March 19, 2006 01:10 PM

Anonymous said...

the very fact that a female of a human species can ......out of blue (after having a significant relationship....)....can claim serial rape( w.r.t to noida case).....based on whatever disguise .......CAN CLAIM ...HEY THANDEDAR I HAVE BEEN RAPED.........make me shivers every time i say no my gf ....for a movie................mummmi bachaaooo

1000
March 20, 2006 01:02 AM

Nyayapati Gautam said...

The previous seven comments have been imported from Desi Critics where this article was cross-posted.

Gautam

HAMLET POW POW POW said...

but with two normal, real people, in a real-life situation, it's extremely improbable.

Yes, exactly. Men shouldn't ever change. They should go on raping and harrassing women, because, hey, it's real life, and real life must always be the same. unending. cycle. of. violence. and. misogyny.

To you and to the original poster I say: BULLSHIT.

Anonymous said...

Man, I think you should publish more. If you articulate your sensibility more often, maybe we all can learn something.

I go to a US college. And date rape happens here too - sometimes.

What they say (the counselors, and in the posters) that if the woman say 'NO' - regardless of physical cues - it is rape.

Obviously women here know that 'NO' is the magical word, but they are also pretty unequivocal, and unambivalent in their body language.

The rules are different in India,obviously, a Indian woman may say 'No' to be more appealing in her coy femininity but actually signal her desire of sex by not moving away etc.

Passively saying nothing/ or 'no', while turning to be kissed is giving consent, as far as I am concerned -

But through some national ad-campaign - women should make it unambiguously clear what signifies consent and what signifies lack of consent. After we build consensus on this issue, the courts and judges can be easily convinced over a period of time.
Karan
Comment taken from Desi Critic where this article was cross-posted

Anonymous said...

The rules are different in India,obviously, a Indian woman may say 'No' to be more appealing in her coy femininity but actually signal her desire of sex by not moving away etc.

huh? you have got to be kidding me! Either you have been watching too many hindi movies were the vamps say 'no' but mean 'yes' or are hanging out with some kinky Indian chicks.

Most Indian women are not coy in their feminity when they say no they generally are taken without their consent and many a times by their own husbands.
deepti lamba
Comment taken from Desi Critic where this article was cross-posted

Anonymous said...

Deepti is right on! Having said no to a few Indian women at the last minute, I'd say they are pretty straight about their needs for sex. Luckily no one tried to rape me for saying no but women usually react to sexual rejection -- espeically after some necking action -- by getting hurt and depressed 'cause a guy didn't find their body appealing. Suits me. Suits them. Of course, I'm lucky to live in a civlized country where it is not easy for a woman to file a made-up charge. In India, it is not about what the law says, it is about whether the police anyone complains about you to find you a big enough fish to hassle by registering the complaint. Come to think of it, I would never sleep with a woman I met while visiting India over there, for the same reason.
Sanjay
Comment taken from Desi Critic where this article was cross-posted

Anonymous said...

Sanjay, whats even worse is that many Desis - men and women use premarital sex as bargaining chip for marriage. Seen too many good people (men and women) give in and then get married to the person they had sex with out of sheer guilt.
deepti lamba
Comment taken from Desi Critic where this article was cross-posted

Anonymous said...

Deepti don't assume there is only one proper way to be a sexual being. I think it's quite natural when a woman loves reciprocatingly, instead of hollering for sex.

Sex does not have define to define a relationship - love might - and when the moment is right no words need to be exchanged.

Anyway, I'm sorry I said anything.
Karan
Comment taken from Desi Critics where this article was cross-posted

Anonymous said...

Nyayapati,

Check out the movie, Accused (1988) by Jodie Foster. Jodie Foster won an oscar for the movie. The movie is roughly based on a real event.

It will answer all of your questions, and lot of commentors here.
Kush Tandon
Comment taken from Desi Critics where this article was cross-posted

Anonymous said...

karan is damn it right....(kush to bahut hoge)

Indian female is always like Nahi,hay diaya,Maat karo na......(still moments later u would be deafen by their blissful growlings. ;-)

I speak out of experienceS (capital S) ....they r shy....cumm u ought to agree on this.....

See all those leaked sex mms's on net.....its damn clear there

MY POINT IS if the performance is over wherein a female is mix of masti and na ,na ....

What would u call it a Rape or desi mating.
1000
Comment taken from Desi Critics where this article was cross-posted

Anonymous said...

Deepti -- don't mind Karan, he seemed to have momentarily lapsed in the Indian preachy morality (inversely corelated to the walk) :-) ...so, that guilt is useful for laying it thick on the other person.
Sanjay
Comment taken from Desi Critics where this article was cross-posted

Tarun said...

*Rape. The IPC defines rape as sexual intercourse by a man with a woman against her will, without her consent, or with her consent, if her consent has been obtained by putting her or any person in whom she has an interest in fear of death or harm. Attempts are not included.

Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ’sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.

tarun said...

Sorry, meant to add that technically, even a 'coy' no means the person's being raped (because its clear that there is an absence of consent).

Is not saying 'I consent to intercourse with you' and keeping quiet equivalent to 'absence of consent'?

What does 'fear of harm' constitute? Fear of being physically abused or unfairly terminated from employ? What about mental abuse?

Offtopic (this is a little graphic) -
1.Can husbands rape wives?
2.Does it constitute incest if consenting adults related by blood have non-copulatory interactions? ('outrage each other's modesty'). It only is incest if there is 'penetration'. Otherwise it is molestation. But is it molestation if the adults are consenting?

Anonymous said...

"Yes, exactly. Men shouldn't ever change. They should go on raping and harrassing women, because, hey, it's real life, and real life must always be the same. unending. cycle. of. violence. and. misogyny."

You my friend are strange in your opinions he never said that rape should happen but if it is VERY (as in not in the slightest vague) clear like they are touching you and telling you to put it in it is NOT rape

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