'Can't presume consent based on woman's sexual history': Bombay High Court upholds gangrape conviction

Mumbai: The Bombay High Court has upheld the conviction of three men for raping one of their partners, ruling that when a woman says no, it means no, and there can be no presumption of consent based on her past sexual activities.

“No means no”, the bench of Justices Nitin Suryawanshi and M W Chandwani said in its May 6 judgment refusing to accept the attempt made by the convicts to question the morals of the survivor.

Sexual intercourse when done without the consent of a woman is an assault on her body, mind and privacy, said the court, terming rape the most morally and physically reprehensible crime in society.

“A woman who says ‘NO’ means ‘NO’. There exists no further ambiguity and there could be no presumption of consent based on a woman's so-called immoral activities,” HC said.

The court refused to quash the conviction of the three persons but reduced their sentence from life imprisonment to 20 years in jail.

In their appeal, the trio had claimed that the woman was initially involved with one of them but later got into a live-in relationship with another man.

In November 2014, the three barged into the survivor’s house, assaulted her live-in partner and forcibly took her to a nearby deserted spot where they raped her.

The bench in its judgment said that even if a woman was an estranged wife and lived with another man without getting divorced from her husband, a person cannot force the woman to have intercourse with him without her consent.

The bench said even though the survivor and one of the convicts were in a relationship in the past, any sexual act without her consent would amount to rape if she was not willing to have intercourse with him and the other accused.

“A woman who consents to sexual activities with a man at a particular instance does not ipso facto (by the fact itself) give consent to sexual activity with the same man at all other instances. A woman’s character or morals are not related to the number of sexual partners she has had,” the court said.

The court said sexual violence diminishes the law and unlawfully encroaches on the privacy of a woman.

“Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression. It is a violation of her right to privacy. Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim,” HC said.

The court also upheld the trio’s conviction for the assault of the survivor’s live-in partner.