THIS VALENTINE’S DAY LETS TALK ABOUT CONSENT

In Meghalaya there has been increasing reports of instances of sexual assault of all forms ranging from sexual harassment at the work place, rapes, child sexual abuse , domestic violence etc. Sexual assault and rape happens not just among strangers. Date rapes are common and we need to acknowledge that rapes do take place even within a marriage It is imperative therefore that a conversation on what constitutes consent and the importance of practicing consent towards fostering healthy relationships based on equality and respect needs to be begin, and what better day than on valentines day – a day that is dedicated to celebrating love and relationships.

The topic of consensual sex often comes to light when there exists a hesitation and sense of doubt whether or not two people should engage in sexual activity. Sexual consent is a topic that should be talked about whenever there arises a possibility of a sexual encounter. When two individuals have sex, they need to be certain that one partner is just as willing to have sex as the other, hence there needs to be full consent. Every sexual activity hence should be based on consent. Having a communication between partners without fear or embarrassment is key and this communication must be continuous. In other words having obtained consent once does not indicate that no further consent is required in future sexual activities. Consent has to be obtained everytime there is a sexual engagement.

One must keep in mind that to engage in a sexual act without the other person’s consent or approval could lead to charges of rape and sexual assault. So, how do we determine a person’s consent? Also what happens when a person’s consent is obtained by coercion? The Indian Penal Code under Section 375 has put forth the meaning of consent as, an unequivocal voluntary agreement whereby the woman by words, gestures or any form of verbal or nonverbal communication’, communicates willingness to participate in the specific sexual act. Hence Section 375 states that any type of sexual act which is-

(a) Against the will of the woman.

(b)Without her consent.

(c) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(d) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(e)With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(f)With or without her consent, when she is under eighteen years of age.

(g)When she is unable to communicate her consent.- will be viewed as an act of rape or sexual assault. When a person has consented there will be a mutual agreement to engage in certain acts and there will be a positive indication. The most certain way to ensure this is if both partners openly communicate with one another.

Consent from a partner to engage in a sexual act is one of the most imperative parts of having a mutual, satisfying and ethical sexual experience.

What is not consent? First, assuming that one has given consent is not valid. Consent cannot be assumed and is not permissible as a reason for non consensual sex. For e.g. to assume consent based on a person’s clothing or looks and gestures is not consent. One cannot say that just because a person looks or dresses a certain way that she has consented to engaging in sex. Secondly, it is not obligatory for a person to explicitly express her consent. No physical resistance or silence does not imply that the person has given her consent.

Third, consent given when a person is under the influence of drugs and alcohol is no valid consent. This means that even if a person may seem eager to engage in sexual activity, doing so can be considered sexual assault or rape if he or she is in a state of intoxication.

Fourth, sexual activity with somebody who is not eligible to give consent is considered a sexual offence. A minor under the age of eighteen is viewed under the law as unable to give consent. Hence, sexual activity with a minor can lead to a charge of rape even though they may have consented to it as under the eyes of the law they are not of age to give reasonable consent.

Therefore, consent from a partner to engage in a sexual act is one of the most imperative parts of having a mutual, satisfying and ethical sexual experience. There must always be that constant communication among partners to ensure that there is a comfort in the manner of engaging in a sexual activity and also to respect the other person’s boundaries and sensitivities.

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Badapbor Mawlieh Written by:

Badapbor Mawlieh is a musician and Law student. He is a member of Thma U Rangli Juki (TUR)

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