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Consent for sex under intoxication not valid

NEW DELHI, February 18: The Bombay High Court has held that "a woman, when intoxicated, is incapable of giving a free and conscious consent to a sexual relationship."

The court has said in such a circumstance, even if the woman consents to a sexual relationship, it will not be considered valid or as an "excuse for committing rape."

The court said in the case of rape, when a woman says "No" to sexual intercourse even once, it must signify she is unwilling. Similarly, when she says "yes, this yes must be free and unambiguous" for the incident to not amount as rape.

"Not every ‘Yes’ is covered as valid consent defined under section 375 of the Indian Penal Code. The term ‘without a woman’s consent’ has a wider meaning and covers a broader area of her wish to have sexual intercourse," said Justice Ms Mridula Bhatkar. "Silence, or uncertainty" in itself, cannot demonstrate consent, she added.

Justice Bhatkar was hearing the bail applications filed by a Pune resident accused of gang-raping one of his colleagues with the help of two of his other friends. The petitioner argued that the survivor was not averse to consuming alcohol and on the night of the incident, she had four servings of a cocktail, after which he had taken her to his friend’s flat.

The woman denied having consumed alcohol knowingly. She had instead said the petitioner had spiked her drinks and that she had lost consciousness after which he brought her to his flat.

Though Justice Bhatkar observed that, based on statements of the waiter at the restaurant and other witnesses, it was clear there were some discrepancies in the survivor’s statements, the petitioner could not be granted any benefits owing to the same.

"The simple question is that even if the victim was drunk and could not even walk, why the petitioner did not drive her to her house instead of taking her to his friend’s flat? Even if the victim did not disclose that she had had drinks, this doesn’t mean that her entire statement is false. Her post-rape condition suggests that she did not want to have sexual intercourse and if at all she had consented to it, the said consent was not valid," Justice Bhatkar said, while rejecting the petitioner’s bail plea.

She, however, granted bail to two of his friends who were co-accused in the case.

Justice Bhatkar also said considering the "rising number of rape cases, whether genuine or false," "the young generation" must be given some "legal education."