Either She Consented or She Did Not, No Middle Ground
SC Rejects Rape Myths
The Supreme Court has recently delivered a judgment firmly rejecting the use of stereotypes and “rape myths” when determining consent in rape cases, cautioning courts against judging a complainant’s behaviour through preconceived social expectations. The Court observed that arguments based on how a woman ought to behave – such as assumptions that she would scream, resist, run away, or immediately report the incident are rooted in unreliable societal notions. Such reasoning, the Court warned, risks “denying woman’s sexual autonomy and implying that women are in a state of constant consent to sexual activity.” The Court stressed that criminal liability in sexual offences cannot be assessed through myths about victim behaviour, but must be grounded strictly in law and evidence.
Only Two Possible Findings on Consent
In clarifying the legal test on consent, the Supreme Court emphasized that when consent is in issue, a court may arrive at only one of two conclusions: either the complainant consented to the sexual act, or she did not. There is no intermediate or “middle ground.” In this context, the Court relied on the authoritative ruling of the Canadian Supreme Court in R v Ewanchuck, which held:
“The trier of fact may only come to one of two conclusions: the complainant either consented or did not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven.”
The Supreme Court adopted this principle, making it clear that once a trial court accepts the complainant’s evidence that she did not consent, the law does not permit courts to search for implied consent based on her conduct.
Consent Is Not Mere Submission
The Court reaffirmed long-standing local legal principles on the meaning of consent, quoting with approval the observation of Schneider J. in Kalimuttu (6 C.W.R. 142):
“Consent is not mere submission. There can be no consent where there is no proper knowledge of the nature of the act. Consent cannot be implied unless the conscious mind had considered the nature and consequences of the act and had then submitted to it.”
The Supreme Court clarified that where there are no spoken or written words, or any other reliable mode of communication explicitly indicating consent, consent may be implied only if it is shown that the complainant’s “conscious mind had considered the nature and consequences of the act and had then submitted to it.”
In the case before the Court, the facts disclosed a disturbing sequence of events that unfolded during a night. The complainant was at home when the accused entered and later engaged her in conversation outside. According to her evidence, the situation escalated when she was threatened and forced into sexual intercourse. The defence argued that the complainant’s conduct before and during the incident indicated implied consent, pointing to her movements and lack of resistance at certain moments. The central issue the courts had to determine was whether the sexual act took place with her consent or without it.
The Supreme Court, after reviewing the evidence and the findings of the lower courts, held that the trial court had correctly accepted the complainant’s testimony as credible and reliable. Once her evidence clearly established that she did not consent, it was “unnecessary and legally incorrect” to search for implied consent from her conduct. To do so, the Court observed, would be to reintroduce the very stereotypes and myths that the law seeks to eliminate.
Case No: S.C.Appeal No.16/2021 [Decided on 05/12/2025]
Before: A.H.M.D. NAWAZ J. ACHALA WENGAPPULI, J. ARJUNA OBEYESEKERE, J.
