Guest Post: Criminal state of Mind and Strict Liability in Rape

(This is a guest post by Adi Narayanan Mamandur Kidambi)

The Criminal Law Amendments in 2013 led to a conundrum surrounding the nature of the offence of Rape as defined under Section 375, of the Indian Penal Code, 1860 (IPC). The confusion was whether the provision constitutes a ‘strict liability’ offence or one that carries an element of ‘mens rea’, i.e., proof of a guilty mind. Presently, Section 375 IPC proscribes penetrative sexual activity beyond the traditional ‘peno-vaginal’, in the absence of the will or consent of the woman, and under specific circumstances in the presence of consent, when it is vitiated. The provision has been interpreted by different High Courts as both a strict liability provision and indirectly as an offence requiring the presence of some (arbitrary) form of mens rea.

Through this post I argue first that the amended provision is silent with respect to a mens rea requirement but does not necessarily imply the exclusion of the same. Consequently, I argue second that in the absence of legislative intent to amend the provision, the courts should read into this silence a suitable ‘mens rea’ requirement.

Echoes of Silence

In Indian criminal legislation, specifically Macaulay’s IPC, provisions are usually structured in any of the following phraseologies:

• First, provisions have an express inclusion of mens rea through insertion of words such as “intentionally”, “knowingly”, “voluntarily”, “reason to believe”, etc.
• Second, there may be an express exclusion of mens rea through the phrase “Whoever voluntarily or otherwise…” this is also called the strict liability conception. 
• Lastly, and most importantly, a third construction of provisions which are silent with respect to mens rea, such as Section 361, Section 375 & Section 292 of IPC, ‘possession’ in TADA, etc. as they are not worded in either of the above manners.

With regards to interpreting the construction of provisions that do not explicitly or impliedly include the element of mens rea (read: are silent), the Supreme Court in Nathulal v. State of Madhya Pradesh held that there is a general presumption of the presence of a mens rea requirement in a penal statute unless the provision itself expressly excludes or necessary implies its absence. Further, such ‘no-fault' provisions must be subject to strict and literal interpretation, and judges do not have liberty to qualify such statutes to restrict their ambit, as it would defeat the purpose of the statute.

In the context of Section 375, there is neither an express exclusion of mens rea nor is there any necessary implication of the same. However, owing to drafter’s intent, the silence in the provision has increased the propensity for inconsistent interpretation of Section 375 as both a strict liability provision and a provision with mens rea. 

On Strict(er) Tides

Going by the patterns of construction followed in Indian criminal law (referred to in the previous section) it becomes difficult to comprehend why a construction excluding mens rea explicitly, was not chosen. In my opinion, clarity in this matter would have helped declare the legislative intolerance of rape, forcing individuals who engage in sexual intercourse, to not only follow the ‘upgraded’ consent provision but to additionally obtain awareness from their partner as to what passes for responsible sexual behaviour within their relationships.

Currently, the silence allows courts to completely negate the perspective of the accused, as was done at the level of the Trial Court in Farooqui’s case. The Trial Court held that the uncorroborated statement of the prosecutrix was sufficient to prove that the proscribed act occurred, and that her statement by itself was sufficient for holding the accused guilty. But it made no enquiry as to the state of mind of the accused, at all, effectively reading the provision as being devoid of a mens rea requirement. My concern with this interpretation is that it sounds like a ‘presumption of guilt’ being imputed onto even that accused who may have acted in ‘good faith’ and had reason to believe the act to be consensual, without so much as an opportunity being afforded to them to prove their non-culpability prior to being incarcerated. 

This further implies that the state of mind of men, in interactions that determine the agreement to consent, is completely irrelevant. In that case, the question that comes to mind is, that in developing clear metrics for what passes for affirmative consent between two intimate partners, one must also be aware of what men may comprehend to be an affirmative consent on part of a partner who they share a sexual history with, so as to negate all those inferences that men make, that are not actually an affirmative consent on part of their female partner. This extreme stance makes it unlikely that an exercise of determining affirmative consent standards within intimate relationships may take place within reason.

On the other hand, scholars have defended the present construction and argued that the silence does not leave anything to imagination. Professor Mrinal Satish, one of the scholars who worked with the Justice Verma Committee which made the recommendations that resulted in the 2013 amendments, has argued that the offence does not include a defense of “mistaken belief” or “assumed consent”, and the courts must only investigate the presence, or lack thereof, of consent, without regard to the accused’s perception or claim as to mistake of consent. The effect of Professor Satish’s argument is to interpret Section 375 with strict liability, for it calls for exclusion of mens rea in general, as opposed to excluding an investigation of the accused’s state of mind in only some specific circumstances.

While I agree with Professor Satish to the extent that no arbitrary mens rea argument can be applied under the provision, I disagree that the crime of rape must be interpreted as a ‘no mens rea’/strict liability offence, and back the presumption of mens rea for two reasons: First, mens rea and consent in rape are intertwined, and as the text of the statute stands, it does not seem absurd to foresee an accused claiming lack of some arbitrary mens rea by raising a contention that he was under a presumption of, or had reasonable belief of, or honestly mistook the presence of, consent from his intimate partner (especially in case of a shared sexual history) and that he did not have either the knowledge or intent or foresight or desire, etc. to proceed with sexual intercourse in the absence of affirmative consent. Lastly, the possibility that a strict liability interpretation allows for the incarceration of even that one accused who acted in good faith with the ‘reasonable’ belief that his partner had affirmatively consented.

To qualify my claim, while I support a need to presume a mens rea requirement, I do not seek presumption of any arbitrary mens rea, which the courts currently have the discretion to choose (as the Delhi High Court had chosen in the Farooqui appeal, discussed below). The above claims render this silence hugely problematic due to the extreme and contradictory interpretations it enables the courts to make. 

All in the Mind 

Another devastating interpretation of Section 375 IPC, that gave us a glimpse into a regime of rape adjudication with some arbitrary mens rea requirement, is in the High Court judgment in Mahmood Farooqui v. State (Govt Of NCT Of Delhi), one of the first instances where a High Court engaged with the amended provision. The court in the pursuit of including the state of mind of the accused to ‘fairly’ assess the circumstances of the case, completely disregarded the claims by the prosecutrix in her testimony, as to a clear denial of consent given explicitly to the accused, on account of her faking an orgasm out of fear to make the ordeal end. The court remarked that, “Instances of woman behavior are not unknown that a feeble no may mean a yes. If the parties are strangers, the same theory may not be applied ... mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble no, was actually a denial of consent.” In the space of a few words, years of progress made in creating a feminist shift of consent to equalise the woman as a participant to the sexual conduct as was sought by the 2013 Criminal Law amendment Act, was undone. 

Although this case occurred in the absence of a specific mens rea requirement, the creation of the defence of ‘assumed consent’ and with reiteration of the perverse ‘no means yes’, the adjudication of rape became indifferent towards the prosecutrix, converting the proceedings into a kaleidoscope of events from the perspective of the man dominantly. 

The Reasonable Mens Rea Requirement

In line with my analysis (and with immense qualitative superiority), Professor Barry Wright, a noted scholar who has written on Macaulay’s IPC, argues that the provision is silent on the requirement of mens rea, however, he argues that Macaulay constructed consent provisions in the IPC in the pursuit of individualistic liberalism which placed individual autonomy above competing interests, implying that the imputation of culpability would require proceedings to assess the accused’s state of mind as part of his defence. The question then becomes which out of the multiple standards of mens rea such as knowledge, intent, recklessness, malice, reasonable belief, honest mistake, etc. Would be appropriate for Section 375. Let us consider two thresholds:

First, Kumaralingam Amirthalingan, takes a nuanced approach that accepts strict liability interpretation, but accommodates for mens rea, using Section 79 of the IPC, which defines ‘mistake of fact’, which they feel can be applied to strict liability offences. Under this section an accused who, after exercising due diligence in doing anything proscribed under law in carrying out the action that constituted the strict liability offence, may be deemed morally innocent, and to have been acting in good faith. 

Second, Professor Latika Vashisht argues in her essay that Section 90 of the IPC provides for a reading of mens rea and consent that would imply that the liability will arise only “when an accused is aware that the victim is not really consenting as her decision is guided by fear or fraud”. 

It is fair to say that both these interpretations of possible mens rea defenses are useful given that these will force the court to assess whether due diligence was undertaken by the accused, by not solely relying on the man’s subjectivity, but assessing whether he sought to get affirmative consent, preventing a scenario like Farooqui.

I prefer Professor Vashisht’s conception given that it engages head on with Farooqui and nullifies its ratio (and any arbitrary mens rea it stands for) while also mitigating the likelihood of even that one accused, who lacks the requisite guilt, from being punished because her reading does not allow one to construe the provision as a strict liability provision and inserts into it the requirement of conducting due diligence prior to commencing intercourse. Lastly, her reading of Section 90 with Section 375, seeks to retain the importance of the prosecutrix’s perspective as any analysis of consent being guided by fear or fraud is bound to take her (prosecutrix’s) perspective into account. 

Escaping the Silence 

While the justification for strict liability in rape is that it will deter morally culpable conduct, it poses the inherent harm of punishing those who may not have the same moral culpability. Deterrence is not a sufficient metric to determine the inherent value of a provision, considering the mere existence of a ‘deterrent’ does not deter, unless it allows people to assess through their own moral calculus as to whether something is good or objectively bad under any and all circumstances. 

Considering the same, a mens rea requirement that places the burden of proving due care on part of the accused, would require intimate partners to actively engage with each other’s state of mind, forcing them to be outspoken during the process of reaching consent to indulge in sexual activity rather than settling for a Bollywood like “no means yes”, which will ultimately help them determine an affirmative standard of consent that operates dynamically throughout intercourse. Adopting such a standard of consent may prevent the prosecution of those that lacked the requisite criminal state of mind. 

If the provision is construed to contain a strict liability by the courts, it invites the risk of the classic ‘what about false rape cases’ narrative, and indicates tacit acceptance of the narrative of women being powerless, which can lead to the insurgence of the stereotype that women are incapable of being equivalent, rational, and objective participants to intercourse who can reason and present their values and beliefs. Implying that while feminist reforms are important in the law, these can neither exist nor be appreciated, but in a bubble. 

On the other hand, misplaced tolerance for ‘assumed consent’ post Farooqui, will likely hinder individual desire for introspection and efforts to educate the self and to be responsible participants in sexual activity and treat each other on an equal footing. This kind of a mens rea requirement would create the avenue for the subjective interpretation of circumstances by the accused to become the most relevant part of the proceedings, and what is possibly worse, is the likelihood that the courts may regress towards adopting the horrid standards of the ‘ideal victims’ that resist to protect their chastity and virginity, as was laid down in past judgements such as in the case of Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat. 

Therefore, a mens rea requirement ought to be read into the definition of rape, and preferably one which requires men to have taken due care and diligence in obtaining consent for the reasons highlighted in the previous section. 

Escaping the silence in Section 375 this way not only helps us mitigate the curbing of liberty of those who do not have a guilty mind, but it also allows us to give specific direction to that provision which yields a desirable and socially optimal outcome, as "the law can (either) bind us to the past or help push us into the future. It can continue to enforce traditional views of male aggressiveness and female passivity, (and) continue to uphold the 'no means yes' philosophy as reasonable...." or pave the way for holistic (and) feminist interpretations of the law.