It is reported that Bollywood actor Shiney Ahuja had allegedly raped his 18 year old domestic maid. She said it was rape, the actor said it was consensual sex and the medical reports show 'forced sex'. But how does the law distinguish and prove that rape or consensual sex? Is it simply done on the basis of the woman' word against the man? What if she is tying to frame the guy, blackmail him or trap him into marriage? If the man is married and has consensual sex, can he be guilty of adultery? Let's take the Shiny Ahuja case to find out how can we draw lines between consensual sex, rape and adultery:
What is Rape? According to the section 375 of IPC, a man is said to commit 'rape' when he has sexual intercourse with a woman...1) Against her will 2) Without her consent 3) If her consent was obtained by putting her or any person she's interested in under fear of death or of hurt 4) With her consent, when the man knows that he is not her husband, but she believes that he is the man she is lawfully married to 5) If the consent was given under intoxication or unsound mind.
A popular lawyer has recently stated "This section was drafted between 1833 to 1837. Times have changed, physiology hasn't changed. So what requires to be changed is the interpretation. The word 'consent' or 'against the will' has to be interpreted to mean -whether th girl had the sexual desire during the period of intimacy(not necessarily intercourse). Lubrication of the vagina would be one of the indications of sexual desire which can be medically ascertained. If it is found that the girl had a sexual desire, then it is not rape."
What about consensual sex with a Minor? If the victim is a minor, then there is no question of consent, it amounts to rape conclusively, according to IPC. When the victim's age is below 16, it doesn't matter if the sexual act was carried out mutually, or if the perpetrator and the victim were involved at a point
Can the rapist be tried for adultery? Whether it is rape or consensual sex, what about adultery if the person is married? According to a prominent lawyer, the Indian system doesn't take serious cognizance of adulterous activity. In Shiney Ahuja's case, the aggrieved party, which is the wife has not complained.
Are men at a disadvantage? In matter of rape, men are always at a disadvantage, according to legal experts. That is primarily because men are considered more aggressive of the two sexes. Section 114 A of the Evidence Act says that if the girl states in her evidence before the court, that she didn't consent, the court will presume her statement as right. An innocent man can be convicted on this presumption. The previous sexual conduct of the girl cannot be taken as record in the inquiry or cross-examination under the same Act.
Can Consensual Sex be proved? In case of rape, the evidence of the victim is enough. Proving that it was not rape, but consensual sex can be difficult. To prove consensual sex, there should be evidence in the form of telephonic calls or text messages which show involvement. Even if the victim is a prostitute or if condom is used, it cannot be accepted as consensual sex. When the victim is from a weak, social and economic background or where there is an employer-employee angle, the benefit of the doubt is always toward the victim.
Is marital rape legal? In a lot of countries including Nepal, a man cannot force his sex into physical intimacy without her consent. In India, though section 375 of the IPL mentions that the sexual intercourse with a woman who is above 18 against her will or consent does constitute rape but then there is a exception: Sexual intercourse by a man with his own spouse, the wife not being under 15 years of age is not rape. It is constituted as domestic violence and has a lesser jail term.
