Let’s talk about the elephant in the room, the most hyped words since the release of the 2016 top-rated Bollywood film Pink
-- consent. Consent is at the heart of any sexual act, and the lack of it is what turns any sexual act into an act of violence.
Did you know that the “right to choice and consent” is a universal concept and an integral component of every individual’s human rights?
A person’s right to choose and consent in their personal lives are recognised as a means of ensuring their Sexual and Reproductive Health and Rights (SRHR).
This concerns their right to consent to sexual acts, right to choose when and who to marry, the right to reproduce, and extends to having equal rights in decision-making including being able to choose the spacing and number of children, among other things.
Rape, early and forced marriage, and cyber violence are the most common forms of sexual violence being perpetrated against women in our country in recent times and this article will give you a brief idea about the subsequent violence.
Rape and the issue of consent: The recently published 2017 Ain o Salish Kendra (ASK) HR Monitoring states there have been 70 instances of rape against children aged 13-18, and 588 women raped in the year, with 11 committing suicide after rape. This highlights the need to recognise the issue of consent in our laws.
However, under preventive laws related to sexual violence, consent has briefly been addressed with respect to rape in the Penal Code 1860.
While this clearly states that sexual intercourse will amount to rape if it was done against the women’s will, or with her consent by means of deceit and by putting her in fear of death, there are a few limitations to this.
Rape, early and forced marriage, and cyber violence are the most common forms of sexual violence being perpetrated against women in our country
One of the recurring debates on this 157-year-old law has been the complete disregard to the right to choose and consent to sexual intercourse by a married girl or woman.
When the legal age of consent being 16 years should mean that any sexual intercourse with a girl under that age would automatically constitute rape, the law further states that sexual intercourse between a man and his wife, if the wife is not below the age of 13, is not rape.
It also fails to take into account that a wife, too, has the right to consent to sexual acts, and is not a mere object of pleasure for her spouse or another man.
Under the absence of codified laws on sexual harassment, apart from the 2009 judgment by the Supreme Court of Bangladesh stating guidelines to prevent sexual harassment, the element of consent apart from “unwelcome” sexually determined behaviour, is missing.
Cyber violence and the role of consent
In April 2017, news reports suggested there are up to 7.2 crore internet users in Bangladesh. Of internet users who are women, 73% have been subjected to cyber-bullying or some other form of cybercrime.
One of the most common forms of cyber-crimes is the leak of intimate photographs by partners for revenge.
While there have been arguments that the victim consented to being photographed at the time when the photo was taken, a clear distinction needs to be drawn in the difference between consenting to being photographed and consenting to its subsequent publication -- the publication, broadly, will be an offense under Section 8 of the Pornography Control Act 2012.
With significant figures of sexual violence being perpetrated against women (as evident from the frequent reporting of violence against women in national dailies), it particularly transpires as a need to inform members of the society of the need to recognise that any sexual act against the will or consent of an individual will be a violation of their right, and therefore will be an act of sexual violence.
What can we do?
We, as members of the society, have distinct responsibilities to ensure that our actions are not drivers for violence against women and girls.
. The Universal Declaration of Human Rights (UDHR) 1948 recognises the right of an individual to enter into marriage only with free and full consent of both intending spouses. The same rights are recognised under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) 1979.
This puts a positive obligation on us to recognise our rights and the right of an individual to choose their partner and consent to the marriage they are entering, and avoid forcing women and girls to marry against their will.
. Every woman and girl has the right to consent to sexual acts, within and outside marriage. We should recognise these rights, and refrain from subjecting women to stereotypical notions of being sexual objects for men who have the duty to “please” their husbands and partners.
. There is a need to build wider understanding amongst us all that a sexual act is rape only in the absence of consent. It is high time we stop justifying rape on the basis of a woman or girl’s choice of clothing, lifestyle, behaviour, or demeanour -- and by taking these positive steps, avoid the practice of victim blaming.
Faria Ahmad is Barrister-at-Law.