She Didn’t Fight Back: Why This Can’t Be Passed Off As Consent For Sex

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When it comes to rape, a major part of the conversation around this heinous crime revolves around victim-blaming. What was she wearing? Why was she out at an odd hour? Why didn’t she fight back? Why didn’t she ask for help? Why was she drinking? It seems as though the survivors of rape, rather than the offenders, must bear the burden of the crime. But time and again, the Indian justice system reminds us that the accountability for rape lies with only the perpetrator.

The Patna High Court while hearing a plea against the conviction of a perpetrator by a lower court in a rape case, observed that if a rape survivor doesn’t fight back, it doesn’t mean that she consented to the act. While hearing the plea, Justice AM Bardar observed, “Only because a woman does not physically resist the act of penetration it cannot be regarded as consent to the sexual activity.” The HC judge also said that lack of physical evidence of an injury is not proof of consent.

It is disheartening that such a basic fact has to be repeated again and again. Why is it that we care more about how the survivor acted when she was raped, more than why did the perpetrator sexually assault her? Why does the severity of the harm imply the importance of crime?

We need to change the way we talk about rape

Unfortunately, we are way behind in reaching a point where the concept of consent is not a matter of debate but a well-understood fact. Not more than 10 days ago, Justice Rahul Chaturvedi of Allahabad High Court, victim-blamed a sexual assault survivor when he read in his statement that when a survivor narrated her ordeal in an FIR devoid she should be decent. He called the complainant’s FIR, “abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and in-­laws by using all the ways and means in the tone, tenor and texture in an extreme manner.” Read more about it here.

Does this mean that women should refrain from talking about their ordeal to maintain the society’s idea of decency? If talking about what the perpetrator might have done to the woman is being equalled to “soft porn” then how are we expected to have a frank conversation on consent, violation and sexual abuse?

Suggested Reading: Rape Culture: A Complex Problem That Mere Death Penalty Can’t Solve

Not resisting during rape, can’t be taken as a “yes”

Despite the existence of several sources to learn from, our society still struggles to grasp what consent really means. It is not a yes if the sexual assault survivor does not struggle. It’s not always yes if you’re in a relationship. She is your spouse, but doesn’t mean her response will always be yes. Only yes- communicated loud and clear means yes. 

In a society where rape and sexual assault are accepted owing to cultural beliefs and practices around gender and sexuality. Rape jokes, casual sexism, acceptance of toxic masculinity, victim-blaming, and violent crimes against women help rape culture to grow and prosper. Further, It puts the responsibility for women’s protection on their own behavior, simply giving men a free to carry on with problematic behaviour.

As a society we need to understand that until we shift the accountability in crimes like rape, unless we smash our outdated notions about consent and resistance during rape, women will never be safe in this country. 

Views expressed are the author’s own.