Consent: What we must learn

“Let’s go to the cinema,” asked a boy. “I do not want to go today. Another time,” said a girl. “I want to spend some time with you. Let us go right now,” insisted the boy. “Not now. I want to go home,” said the girl with discomfort. The boy, now equipped with intimidation in his voice, continued to exert what we would call ‘stress’ upon the girl, and demanded that she heed his demands. The girl became nervous and teary. Upon looking at her vulnerable demeanor and consistent refusal to his offer, the boy started scolding her for not being ‘serious’ in their “relationship.”

After the boy had finished berating her for allegedly hurting his “expectations” and depreciating his “masculinity,” he left livid, and the girl returned home hurt and thinking as to why the boy did not respect her decision. Was it an ardent task for the boy to understand that she was in no mood to go with him that day? Dear readers, if the words ‘consent’ and ‘abuse’ popped in your mind, you have caught the essence of this article. If they did not, then worry not and enjoy this piece. 

“If it is not a clear ‘yes,’ then it is a clear ‘No!’”. We must have heard this statement numerous times, but do we have a clear understanding of what it means? The notion of consent is one of the most crucial aspects of an individual’s physical integrity and self-determination. It is not only a mere act of permitting someone to perform certain tasks but also an entire protection from them causing any harm to you. It is a vital aspect of an individual’s right to live with dignity and freedom as protected by Articles 16 (Right to live with dignity) and 17 (Right to Freedom) of the Constitution of Nepal.

Article 16 proclaims that every individual shall have the right to live “with dignity”. The clause at the end is paramount to make every individual realize that they are in control of their lives. They possess certain values to live a dignified life such as autonomy, self-determination, free will, privacy and more. Thus, the notion of consent further solidifies the attainment of a respectful life. 

In this article, I will be discussing consent pertaining to sexual crimes against women. Considering recent convictions and acquittals of so-called high profile Nepalese individuals in rape cases, the concept on consent of women has been a topic of discussion in the Nepalese social media. At present, it is not simply a matter of saying ‘yes’ or ‘no’ but examining the circumstances in which women utter those words. Let me direct you the abhorrent statistics of crimes of rape in three different fiscal years.

In the Annual Report published by the Office of the Attorney General of the fiscal year 2078/79, the district attorneys’ offices (all over Nepal) prosecuted 7,528 cases of rape amongst which 1,742 accused were convicted; in the fiscal year 2079/80, the offices prosecuted 7,343 cases of rape amongst which 1,911 accused were prosecuted. We can conclude two things, by looking at these numbers, one that rape is an ever-increasing heinous crime against women and children; the other, that the courts found that the victims in those cases had not expressed their “free consent” to engage in sexual acts. Thus, the perpetrators blatantly disregarded the notion of consent of the victims and committed those crimes.

How does our criminal legal system view consent and why is it so? Section 20 and explanation of Section 219 of the National Penal Code, 2017 maintain that permission can be deemed as consent, oral or in writing, only when it is solicited without mistake of fact, fear, undue influence, threat of injury or harm; is solicited from person with sound mind and sound cognition and is solicited from person who is at least eighteen years of age. Moreover, Section 219(2) does not deem any sexual act as consensual and legal if it involves a woman under the age of eighteen years. These laws exist, amongst other reasons, to protect the physical inviolability and physical integrity of women and children. 

In the case of Yadav Prasad Ghimire v Government of Nepal, Nepal Law Magazine 2072, Decision Number 9335, the court iterated the notion of consent as ‘choice’ and posited that a person consents if they agree by choice and has the freedom and capacity to make that choice. In this case, the Supreme Court held that the victim had not expressed her free choice of engaging in intimate activities with the accused and thus withheld the sentencing against the latter. Another remarkable case is that of Bhupendra Khadka v Government of Nepal et al, Nepal Law Magazine 2076, Decision Number 10342, in which the Supreme Court postulated that such consent solicited from a lower rank officer by a higher rank officer of Nepalese Army, to engage in intimate activities shall not be deemed as “free consent” due to unbalanced power relation and disparity of economic and social power. Such consent is merely a delusion and sexual acts performed subsequently shall are sexual abuse. 

Why is the idea of consent difficult to grasp? Probably, it has to do with stereotypes about women and gender norms. The journal article “Socio-cultural and psychological aspects of rape…” (2022) published by J K et al, highlighted reasons of rape such as misperception and negative attitudes towards women, masculine dominance, parenting style, immorality, revenge, perceiving women’s clothing as ‘provocative/revealing’ and lack of free sexual expressions. Maybe the answer to respecting women’s consent lies in two themes, one that parents must be the first teachers to teach children about respecting women, morality, sex and sexuality, consent, and hazards of masculine dominance; and the other one could be the standard of sex education in schools and colleges. Also, legal education about the age of criminal responsibility and offenses relating to sex can play a major role in instilling fear amongst people (especially teenagers) to prevent them from engaging in hazardous sexual activities. In my opinion, if we endeavor more to educate the public and students, in more efficient and effective ways, we may achieve a relatively larger reduction in such offenses against women and children. 

The author is student of law at Kathmandu School of Law