Introduction
Protection deception is a form of sexual act wherein a person is deceived of the intention to use sexual protection. The perpetrator usually secures consent to involve in a sexual act on a condition that protection is used. These acts include non-consensual removing of condoms popularly referred to as stealthing[1], partner’s failure to remove before ejaculation using the withdrawal method[2], partner’s failure to take oral contraceptive pill purposefully, lying about sterilisation and other intrauterine devices. Protection deception deprives a person control over sexual autonomy and right to control sexual reproductive choices[3].
Acceptance of protection deception as a crime
It is to be noted that protection deception is not equivalent to other forms of rape but is ‘rape-adjacent’ taking into consideration the lack of consent.[4] It is important to consider protection deception as a rape-adjacent crime since it may result in several emotional and health issues. This is not a male restricted crime but can apply to females as well. Moreover, the fact that a person learned of this deliberate sabotage after the sexual act is of no relevance[5]. What is important is that a person agreed to a sexual activity conditionally and the other person violated such condition, thereby vitiating consent. On this note, Shane M Trawick[6] has proposed in his article, a model for criminalising birth control sabotage; the person shall be held responsible for reproductive coercion provided he has knowingly or recklessly tampered with birth control methods against his or her partner’s will with specific intention of causing pregnancy or if he knowingly or recklessly fails to withdraw before ejaculation after making promise prior promise of doing so. Along with unplanned pregnancy there are other repercussions like Sexually Transmitted Diseases (STDs); these physical risks are precisely why criminalisation of protection deception is required.
While criminal law must be sensitive to over-criminalisation this concern should not undermine a person’s right to determine how to be involved in a sexual intercourse. It is important the Courts adopt a new standard of conditional consent[7]; conditional consent recognises that sexual activities cannot be consented to in a binary; sexual activity which is agreed upon subject to certain terms will result in rape if those terms are deliberately not fulfilled by the sexual partner. This standard also helps in attaining a balance between the discordant propositions of preserving bodily autonomy as well as the imperilment of over-criminalizing sexual conduct.
International Recognition of Protection Deception
In the recent years some of the foreign courts have explicitly considered criminalising protection deception. The first case of this kind was recognised by United Kingdom in the case of Julian Assange v. Swedish Prosecution Authority[8], wherein Assange who knew that the injured party wished to use a condom for sexual intercourse still proceeded to have unprotected sexual intercourse. In this case court observed that the question was not whether there was deception of identity or nature of the act[9] but rather that the failure to use a condom meant that there was no consent under S.74 of the Sexual Offence Act, 2003. The court stated that sole factor of deception in protection vitiates consent. Further, in the case of R v. The Director of Public Prosecution and A[10], the court relying on the same principles, held that a husband who in spite of agreed withdrawal method between parties, ejaculated inside his wife falls within the statutory definition of rape.
In the case of R v. Hutchinson[11] the Supreme Court of Canada dealt with the question of whether a husband who pokes holes in the condom without the knowledge of the complainant and impregnated her without her knowledge shall amount to sexual assault. The Court affirmed that the consent for sexual intercourse was vitiated by fraud because it deprived the complainant of her choice to get pregnant and exposed her to the risk of pregnancy by removing birth control measures. Additionally, the Swiss Court has been forefront in the concept of stealthing; recently sentencing a man to 12-month imprisonment[12]. In this case the man and women who met through a dating platform Tinder agreed to have sexual intercourse in the women’s house on the condition that condom be used. However, without the women’s consent the man changed to unprotected sex which was only discovered later on. In 2018 a police officer was sentenced to 8 months jail time and fine of € 3000 for damages in Germany for removing his condom without the consent of his partner[13]. Protection deception as a crime which undermines consent in sexual activities, is underway in Australia too; however it isn’t the same for other countries[14].
Addressing Protection Deception under the Indian Law
Since there hasn’t been any precedent regarding protection deception in India the question still remains at large as to what provision of law should be invoked to criminalise it. As per S. 375[15] of the Indian Penal Code, 1860, rape in its fundamental essence means an offence committed by man having sexual intercourse with a woman without her consent or against her will. Explanation 2 to S.375 reads as follows:
“Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
Protection deception can be taken within ambit of Explanation 2 of Section 375. Consent is only for a “specific sexual act” which means it is granted for one act and subsequently withdrawn from another. When a sexual act is agreed on the condition of protection method be used it is given for a specific sexual activity with that protection method. If the penetrator vitiates the consent of using protection then it shall amount to rape. Also, the expression “unequivocal” shall include misconception of any relevant fact, widening the scope of rape to include protection deception. Assuming that protection deception falls within the ambit of S.375, any form of the same will be a violation of Article 21[16] of the Indian Constitution, 1950 since every person has right to bodily integrity.
However, keeping this interpretation of Section 375 of IPC aside, there are three fundamental problems with prosecuting protection deception in India, which can only be rectified through radical changes in the laws of the country;
Firstly, it is rather unfortunate that the Indian law recognizes only rape against women under S.375 making the drawbacks of gendered language apparent. Thus, before recognition of stealthing against any sex it is important to recognize rape as a gender-neutral crime. Without this recognition, protection deception cannot be effectively outlawed.
Secondly, S. 375 do not include within its scope the application of marital rape which is in dire need of recognition as protection deception is not restricted to just unmarried intercourse. Though the Court in Independent Though v. Union of India[17] relied on the grounds which are applicable to marital rape in general, the Apex Court emphasised that anything in this judgment cannot be take into consideration with the issue of marital rape. In comparison with the position in Canada (R v. Hutchinson quoted above) wherein protection deception with regards to a married couple was recognised by Courts[18]; the Indian Courts non-recognition of marital rape would only mean that this rape-adjacent crime would also be not recognised. It is unfortunate that the current legal system is not victim friendly.
Lastly, Indian law does not recognize instances where a person withdrew the consent after post-penetration and this makes the law out of reach for the victim with respect to protection deception[19].The Canadian Criminal Code[20] as well as the UN handbook for legislation on Violence against Women[21] has suggested that the current unnecessary emphasis on penetration must be taken away. However, the Indian Law Commission till date has been silent on this matter.
The solutions to these problems are the crux of reform in sexual violence laws, without which, protection deception cannot be validly proceeded against. Hence, protection deception still remains a largely under-explored topic and is vastly ambiguous. This means that even when it occurs most of the current law does not lead to prosecution. When a person agrees to sexual activity with a condom or withdrawal method, they are not merely agreeing to sexual activity but also to how it should take place. Unfortunately, since there is neither a precedent set by Indian courts nor any statistical research on this subject, the question of protection deception in India remains to be determined.
(This article is written by Pavithra Rajesh. Pavitra is a final year law student at National University of Advanced Legal Studies, Kochi)
References
- Ashley Mateo , ‘Stealthing’ is a dangerous type of sexual abuse, HEALTH (Oct.14,2019), https://www.health.com/condition/sexual-assault/what-is-stealthing ↑
- R v. The Director of Public Prosecutions and “A”, [2013] EWHC 945 (Admin)
The claimant agreed to sexual intercourse on the promise of not ejaculating inside her and agreed to withdrawal form. ↑
- Jack Vidler, Ostensible consent and the limits of sexual autonomy,(2017) 17 Macquaire Law Journal103 ↑
- Brodsky A ,Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal, 32 Colum. J. Gender & L. 183 (2017). ↑
- Shane M. Trawick, Birth Control Sabotage as Domestic Violence: A Legal Response, 100 CALIF. L. REV. 721 (2012). ↑
- Shane M.Trawick, Birth Control Sabotage as Domestic Violence :A Legal Response, Calif. L. Rev. 721 (2012) ↑
- United Kingdom recognizes conditional consistent.- Assange, [2011] EWHC (Admin) 2849, Dir. of Pub. Prosecutions, [2013] (Admin) EWHC 945 ↑
- R v. The Director of Public Prosecution and A ,[2011] EWHC 2849 ↑
- Section 76 of the Sexual Offence Act , 2003 ↑
- Id. at 2 ↑
- R v. Hutchinson ,[2014] 1 SCR 346 ↑
- Zoe Williams, Is removing a condom without permission rape ? , THE GUARDIAN (Jan.16, 2017, 18:52) .https://www.theguardian.com/lifeandstyle/2017/jan/16/removing-condom-without-permission-rape-swiss-court-definition-non-consensual-sex ↑
- Mathew Robinson, Police officer found guilty of condom ‘stealthing’ in landmark trial, CNN HEALTH (Dec.20,2018, 12:37 PM) https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html ↑
- Sarah McVeigh, Could this be Australia’s first stealthing case? ,ABC(May.19,2017,12:42 PM) https://www.abc.net.au/triplej/programs/hack/could-this-be-australias-first-stealthing-court-case/8534190 ↑
- The Criminal Law (Amendment) Act, 2013, No. 13, Act of Parliament, 2013(India) ↑
- Bodhisattwa Gautam v. Subhra Chakraborty ,(1996) I S.C.C. 490 “rape is a crime against human rights and a violation of the victims”. ↑
- Independent Though v. Union of India ,(2017) 10 SCC 800
Supreme Court struck down the exemption which states that a husband can have non-consensual sex with his wife who is between 15 and 18 of years. ↑
- Supra at 12. ↑
- Salam Singh, Date Rape: A study on drug-faciliated sexual assaults in Impal, 28 Journal of Medical Society 86 (2014) ↑
- Section 265 , 271 to 273 of Canadian Criminal Code, 1985 ↑
- United nated , Handbook for legislation on violence against women , UNWOMEN , https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjz4pOLuqXrAhXN9nMBHWFDDPMQFjAAegQIAhAB&url=https%3A%2F%2Fwww.un.org%2Fwomenwatch%2Fdaw%2Fvaw%2Fhandbook%2FHandbook%2520for%2520legislation%2520on%2520violence%2520agai ↑