Tuesday, January 15, 2019

Are "Consensual" Sex Agreement Forms Required in India?

Sex within matrimonial relationship is not a unique thing in India or elsewhere, but “consensual sex” out of marital relationship is unique thing for Indian culture indirectly approved by law now

Though the Hon’ble Chief Justice of India stated that Delhi rape case is one among many, but not a unique one, a very tough Rape punishment law is enacted by Indian Parliament, keeping the sole incident of rape occurred at New Delhi, in view. No body would oppose for the tough punishment if anyone really committed the act of Rape/Sexual assault. But it is absolutely offensive if 'consensual sex' cases are twisted as 'rape' cases if relationships are boomaranged between the parties. The unique provision made in the recent rape-law in India is, the age for ‘consensual sex’ is fixed at 18 years. That means a girl and boy having a minimum of 18 years of age can participate in the sexual intercourse with mutual consent, with or without having marital relationship. Sex within matrimonial relationship is not a unique thing in India or elsewhere, but “consensual sex” out of marital relationship, is unique thing for Indian culture, indirectly approved by law now. Instead of goading the young boys and girls to have matrimonial sex, sex-relations even out of marital perview are being encouraged indirectly, by fixing the 'consensual sex' age at 18 years for encouraging pre-marital sex and also illegal sex between married couple. The only requirement for physical sex now is both should be above 18 and also mutual consent, wheather married or unmarried.

But there is an implication in this, for Indian conditions. For example: if a women who really had sex with her boy friend, or lover or with a strange person “by giving consent” for money or for satisfying her physical desire, may also later twist the matter as a ‘rape’ if any differences arises between them. She may also lie before the police or court that she has not given consent to him to have sex with him. The problem would really arise then. Then what could be the fate of that man who had ‘consensual sex’ with her? The “Consensual Sex” could also be depicted as ‘Rape/Sexual assault” to victimize the really innocent man and simply new rape-law will be invoked against him and he will be done inside for 20 years or sometimes till his death. Because “Consensual Sex” will not have any evidene per se to construe – wheather it is a consensual sex or sexual assault. This situation would destroy the traditional legal principle that “let hundred criminals go Scott free, but no innocent should be punished”.

Another implication is that, a criminal after committing ‘Rape’ or ‘Sexual assault’ on a woman, later may claim that the women who is complaining of sexual assault/rape on her, is known to him, but after having sex ‘with her consent’ she is complaining that he is not known to her, to invoke the rape-laws. This kind of twist would create a benefit of doubt for courts on the rape complaint and accused would take shelter under the provision of ‘Consensual Sex’. It is also very difficult to ascertain that wheather the victim and culprit are really known to each other or not, except under the police duress if they are made to state that they are “known to each other” or “not known to each other”, in otherwise circumstances.

So, in both the situations the word “Consensual Sex” would be misued by both the parties, one to ‘implicate’ the other in Rape crime and another one to ‘escape’ from the Rape crime, by using the word ‘consensual sex’. Now the question is how to find out solution for this problem of misuse of provision of “Consensual Sex” by either party.

The best way, eventhough appears odd, is by introducing the “CONSENSUAL SEX AGREEMENT FORMS”, to be filled and signed in by both parties before entering into sex, and exchanging the forms. So that, the really “Consensual Sex” can not be depicted later as Rape/Sexual assault, by a women. And similarly a fellow who really committed Rape/Sexual assault can not falsely claim before the police and court, that he had “consensual sex” with her, eventhough he does not know her earlier. If he really had “Consensual Sex” he would produce the “CONSENSUAL SEX AGREEMENT FORM” signed by her, before the police/court. If he has not produced such form upon the allegation by the victim, means that would be presumed to have done Rape/Sexual assault and no question of benefit of doubt arise for courts at initial stages and burden of proving his innocence would be under the part of trial.

Filling this kind of forms by giving their name, address; marital status, with approved Identification Card numbers (such as, voter ID card number, Aadhar card number, driving license number, PAN card number) and signing on it would legitimize their “Consensual Sex” and no later disputes would arise between the parties. Really innocent would not be punished under the draconian law and real criminals can not escape from the law after committing rape. Instead of making oral claims or allegations before or after “consensual sex”, committing on paper would minimize the cheating tendencies and false complaints. Submitting such forms before the local police station/social welfare officers/women organisations, would also benefit both the parties, and later another kind of cheatings such as having sex with one person and marrying another person claiming oneself as virgin or as pure bachelor, can also be avoided.

Because, on an average, 40 abortions are conducted every month in the safe abortion clinics of Family planning Association India at Bangaluru city in South India and young mothers bring their school going daughters for abortions and most of those who come for abortions are adolescent girls (Refer Times News Network (TNN) February, 3, 2010) . According to a survey conduted by the Amity Institute of Behavioural and Applied Sciences and published by the Times of India showed that over 48% youth between 18-24 years is having pre-marital relationships. (Refer TNN 13 September 2009) These are all the cases of “Consensual Sex”. And these cases should not be twisted as ‘Rape/Sexual Assault’ cases tomorrow with the instigation of perverted brains, with the enactment of new rape-laws. If possible another new law must be enacted in India to get the marriage solmanized between the men and women who are involved in pre-matiral “Consensual Sex”. By dchaitanya

About the Writer

dchaitanya is a writer for BrooWaha. For more information, visit the writer's website.
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