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THE CURIOUS CASE OF CONDITIONAL CONSENT!

Post by DR. SWATI JINDAL GARG on Sunday, November 6, 2022

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The question of consent during sexual activities has been a much debated one over the years and a recent judgement by the Top court of Canada has added another dimension to the already complicated issue. A majority of 5:4 ruled in favor of the issue that a person can be charged with sexual assault for not wearing a condom without a partner's consent during sex. The judgement was given in the case of one Ross McKenzie Kirkpatrick who was initially acquitted of the charge in British Columbia before an appeals court ordered a retrial.
The Supreme Court later ruled that Kirkpatrick must face a new trial. He was accused of not wearing a condom during sex with a woman who consented only to protected sex. The court did not say whether the accused was guilty of those charges or not.
The issue of whether the act of giving consent for sexual activities also implies that the said consent included the permission to have sexual intercourse without the use of condoms, especially in the light of the fact that the woman had consented with the rider that condom shall be used during the activity has been the major question in this case. This question though has come in the limelight only recently, a lot has been discussed on it over the years. The act of secretlyremoving a condom during sex, sometimes referred to as "stealthing," has come under legal scrutiny in many countries including Germany and Britain, both of which have convicted people for the said act. California too joined the list and outlawed the offence of removing the condom despite an agreement to using the same last year. In Australia too, as recently as 2018, a man who had removed condom in the middle of Sexual intercourse without the permission of his partnerwas held liable for the offence of rape.
Giving clarity to the difference between consent with a condom and lack of consent without one, Justice Sheilah Martin wrote in the majority opinion- "Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom" because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom, one of the biggest differences being that intercourse without a condom involves direct skin-to-skin contact, while intercourse with a condom involves indirect contact. Logically and legally, direct and unmediated sexual touching is a differentphysical act than indirect and mediated contact.
The Canadian Law defines sexual assault broadly. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing and fondling as well as rape. As per the Canadian Law, sexual activity is only legal when both parties give their consent however, despite the broad definition, sexual assault requires proof of a lack of consent to a particular sexual activity. That particular sexual activity also includes the use of condom during sexual intercourse. When a condom is removed in the middle of sexual intercourse without the consent of the other partner, it is akin to deceiving the other partner who has consented to protected sex only. This act of stealthing may also result in an unwanted pregnancy or expose the other partner to the risk of Sexually Transmitted diseases (STDs).
Even though the act of stealthing has already been criminalised in many countries, in India it has not been given the weightage it deserves. It is a sad reality that in a country where the offence of rape goes unreported due to the social taboo it raises, stealthing is not even recognised as an offence, rather it results in the complainant being harassed and termed as a loose woman in most of the cases. Different countries attempt to give different interpretations to stealthing as a sexual offense and each country tries to give its own reasonable justifications for the same.
As per the statistics available, 1 in 3 women and 1 in 5 men had been the victims of stealthing in Melbourne alone. This study was conducted by a Melbourne Sexual Health Centre and Monash industry in which more than 2000 people were surveyed and the study also reported that more than 30% of the 1189 women surveyed had become the victims of stealthing and about 19% of the 1063 men surveyed who have indulged into sexual act with another man had been the victims of stealthing.
Even though most of the developed countries of the world do not specify stealthing as illegal under their laws and legislation, somecountries are making attempts to deal with the issue of stealthing in their own ways. The Supreme Court of United Kingdom held in Assange vs Swedish Prosecution Authority that stealthing would fall under the definition of rape. The court also went a step ahead and introduced the Doctrine of Conditional Consent and it was with this that the issue of stealthing gained huge international attention.
The fact that stealthing is not covered as an offence in most countriescannot be ignored but one of the primary reasons for the same is also that its victims are unwilling to openly talk about it. The fear of being socially ostracised coupled with the fear of being judged by the society is one of the primary reasons for the same. In a study titled ‘Rape Adjacent’ conducted by the law graduates of Yale University in 2017, it was found that many men tend to remove condoms in the middle of sexual intercourse in order to enhance sexual pleasure and also ascertain their masculinity so one of the reasons for the non-reporting of stealthing may also be that such a behaviour has now been normalised in the minds of people.
Another root cause of stealthing is that fact that most men believe that they can indulge in any sexual activity with a woman once her consent has been obtainedand that this includes having sex without the use of a condom. Theproblem gets even more intensified in a country like India where condom usage is unpopular to begin with.
A study of the National Family Health Survey statistics shows that despite there being 94% awareness amongst the male population over the use of condoms, less than 5% actually use them. In this scenario, where the offence of rape is also not being reported, the thought that stealthing shall be given equal credence seems to be a far-fetched idea.
Most women rights activists feel that stealthing should be brought under the definition of rape and if the woman grants conditional consent to the act of sexual intercourse, that act must strictly be confined to such conditions only as any deviation in the nature of non-usage of a condom is not only deceptive and non-consensual but is also exploitative in nature.
Stealthing in India is an ignored subject, not only by the public but also by the judiciary and the legislature. A plain and textual reading of Sec 375 of the IPC does not mention stealthing but a deeper reading suggests that if the consent obtained is conditional then the said condition must be met. At the same time, it needs to be remembered that such consent is also revocable and hence if someone has consented to have protected intercourse and the protection is removed mid-way without informing then it amounts to no consent at all.
Stealthing also brings with it many other risks for the participants that cannot and must not be ignored. Apart from the risk of unplanned pregnancy and STDs, stealthing has also been identified as a means of intentional transmission of HIV and attracts criminal liability u/s 270 of the IPC. It not only attacks the sexual agency of a person, but also causes acute mental anguish leading to a loss of self-confidence and sometimes depression.
It is high time that stealthing is criminalised in India and the same can very well be done by reading the explanation to sec 375 in a broad way. The victim can very well argue that she gave consent to the act of sexual intercourse only with the condom on and as soon as the condom was removed without her knowledge/consent, the said consent was automatically vitiated. It needs to be clarified by the Indian Legislature that if a woman is giving consent to have sexual intercourse with a promise to wear a condom, it does not imply that she is giving consent to all the various kinds of penetrations. And, thus, this proves why stealthing must be included under the definition of rape.
The Canadian mindset is quite similar to the Indian one and hence ifsuch an important judgement can be passed by the Supreme Court of Canada, taking similar steps in India is not far-fetched. Article 21of the Constitution that talks about the Right to Life has been interpreted by The Supreme Court of India to include the right to bodily integrityand it is the same right that gives credence to the choice to have sexual intercourse with the condom on. Any kind of act that reneges on the consent that was obtained with the promise to use a condom must be punished in order to preserve the integrity of the body and that of the mind of a woman and it must be remembered that“only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom’”.

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