Discourse on Intercourse

Bapoo Malcolm 19 November 2015

Voluntary, forced, accidental, or innocent?

The legal definition of rape has changed. Previously, rape was restricted to physical touching of the genitals; the expanded version includes mere non-consensual physical contact. The line between rape and molestation is being blurred.

The Delhi High Court upheld the conviction of a man because he “ ...had pulled the prosecutrix towards his chamber with the intention to sexually assault her...” The Nirbhaya aftermath is spawning new thought.

Juvenile delinquency is no longer just ‘delinquent’. The 18-year limit, set ages ago, was, and is, a legal fiction. Too high or too low? Can all juveniles be equally capable of rational thought? At what age does mens rea, a guilty mind, start? Is sexual impulse in a child, unaware of the harm he can cause, be rape or molestation?

You be the judge.

A number of cases have exercised our mind recently. How would you decide?

A) A school teacher, female, has sexual intercourse with a male student.

B) A man indulges in the act, promising the woman marriage.

C) A couple gets involved physically; the woman falls in love; the man shies away. Or vice versa.

D) A male teacher seduces a girl student, under 18 years of age.

E) A male professor seduces a female student, over 18.

F) Both parties throw caution to the wind, under the influence of stimulants.

G) A voluntarily inebriated woman commits multiple acts; then cries gang rape.

H) A woman thinks that this is the way to get the man to commit to marriage. Or vice versa.

I) A juvenile knows he is raping, aware nothing much can happen to him.

J) Another juvenile acts similarly, but is punch drunk.

A flood of possibilities!

The teacher in case A) was convicted. Undue influence was cited, in America, where mores are less strict. Case B) has had differing results. The latest, in Delhi, where the woman, unable to convince the court of any serious intention on the part of her partner, failed in her prosecution. The judge was a woman.

Case C) can go either way for the woman, because proof is the key. Case D) has, rightly, seen convictions for statutory rape. Case E) is similar to A); coercion is a necessary ingredient. A friend of the author, in the US, talked of female students offering ‘services’ to get pass marks. Is that tantamount to rape? After all, the professor is in a dominant position.

Cases F) and G), under the influence, present serious problems. Who is to be believed, especially when both admit to lack of proper senses? Can one party ‘take what is offered’? Case H) amounts to entrapment and courts have frowned on this.

The last two involve juveniles. If a boy knows what he is doing, and knows that it is wrong, how should he treated? As a man or a kid? Is one day less in 18 years sufficient to escape criminality which would be the case the day after? The jury is out on this; but, as of now, the thin red line determines reformation or incarceration.

It boils down to this. Was the deed the result of a guilty mind? Or was it innocent ‘fun’? Was it blackmail (photos/videos), intimidation, false promises, use of drugs, forced intoxication, threat to life or to that of a loved one? These would be punishable, and rightly so.

On the other hand, can the voluntary involvement of two people, later soured, be the basis of a crime? On this, the courts have, often, seen through the complaint. Again, rightly so.

Readers, of both sexes, will have different views but will agree that the situation is complex. When a dastardly act is committed, we bay for blood. ‘Off with his head’ is the formula for rapists. But a death penalty may ensure that the victim is later murdered. After all, the rapist cannot be hanged twice.

Society needs to tread carefully.

(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])

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