Consent Deferred
When ‘No’ Gets Lost in Providing Justice to Victims
**Suhana
Introduction
Recently in October 2024, a report released by UNICEF revealed that out of every 8 women, 1 has been a victim of sexual assault or rape before the age of 18 years. This is not only callous but it also triggers the urgency to once again look at the legal stance of countries across the globe to understand what lacuna acts as a catalyst for rising crimes against women even after such social progress. This piece aims to compare the recent developments and legal stance of Sri Lanka and Japan amidst cases which caught the public’s attention while proposing reforms for the same.
Cross Jurisdictional Analysis of Sexual Harassment Laws
This section deals with an analysis of two countries: Sri Lanka and Japan. While the former is an example to show how lack of efficient legislations can foster the occurrence of heinous crimes, the latter, on the other hand, reflects that laws are not enough to ensure the safety of women. It is important for the laws to be actually implemented along with an active reporting police system.
1. Sri Lanka
Section 363 of Sri Lanka’s Penal Code deals with rape and states:
“A man is said to commit ” rape ” who enactment has sexual intercourse with, a woman under circumstances falling under any of the following descriptions: –
(a) without her consent even where such woman is his wife and she is judicially separated from the man
(b) with her consent when her consent has been obtained, by use of force or threats or intimidation or by putting her to. fear of death or hurt, or while she was in unlawful detention.
(c)with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication Induced by alcohol or drugs, administered to her by the man or by some other person
(d) with her consent when the man knows that he is not her husband, and that her consent is given because the believes that he is another man to whom she is, or believed herself to be, lawfully married;
(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.”
Analysing the first sub section, it implies that a married woman’s consent is immaterial unless she is judicially separated from her husband. This is problematic coupled with Sri Lanka’s Marriage Registration Ordinance, § 19(2) according to which marital rape is not a ground for divorce, thereby closing doors for them to escape abusive and oppressive relationships. Secondly, sub section (c) invalidates the consent of a woman if she was intoxicated by the perpetrator or anyone else. But this fails to address a case wherein the woman voluntarily consumed alcohol but her consent to sexual intercourse was given while she was intoxicated. This sounds unreasonable on the face of it as alcohol consumption impairs the ability or capacity of an individual to affirm something or in this instance, give a valid consent. Thirdly, while the phrase “with her consent, when such consent has been obtained by putting her in fear of death or hurt” is present, terms like force or duress which are usually crucial in determining consent are absent. Lastly, as per Article 1 of the Convention on the Rights of the Child, persons below the age of 18 years are considered as children however sub section (e) of the aforementioned section, which addresses statutory rape, indirectly permits child marriage of females 12 years and older. It also prolongs the continuance of sexual intercourse with individuals of 16 to 18 years.
Sri Lanka can resort to various recommendations to improve its legal stance surrounding sexual harassment cases.
Reframing the understanding of consent
Firstly, given the narrow interpretation of consent in Sri Lanka, it is high time to inculcate a comprehensive approach in understanding consent with respect to the victim’s expectations and understanding at the time s/he was giving consent. As pointed out earlier, the aspect of force does not find a solid position in Sri Lanka’s legislation and thus, taking inspiration from the US laws, instead of sticking to the traditional physical elements of force, the legislation can tap into the moral, psychological, and intellectual forces too.
Burden of proof
Secondly, taking note of Section 345 and 363 of Sri Lanka’s Penal Code, while there are penalties for employer and custodial rape, the victims are still subject to the burden of proving that they were forced. This is contrary to cases where victims may remain silent where they are in a subordinate position or agree to sexual intercourse with someone holding a position of dominance or power during the period of intercourse. Courts should not rule out the possibility of women being considered as forced even if it is due to subordination under the financial, mental or social ambit.
Raising the age of consent
Thirdly, the minimum age of consent should be raised to 18 years. It logically flows that children below the age of 18 years may not be able to fully comprehend the complexities of consent and sexual intercourse taking into account factors like education, demands of marriage, biological and emotional maturity required to engage in sexual intimacy in practicality.
Exclusion of Victim’s Past Sexual History as Evidence
Fourthly, the admissibility of a woman’s past life as evidence in rape cases as per Section 155 of Sri Lanka Evidence Ordinance should be done away with. This may traumatize the victim and lead to a possibility of misusing someone’s past to prove defence. It is unfair for the decision to be made based on the past events considering there is a high chance of change and reform.
Categorizing sexual harassment based on severity
Lastly, Sri Lanka can take inspiration from the US and divide sexual harassment cases into different degrees based on their severity. First degree sexual assault cases cover the most severe crimes wherein the punishment can be up to life imprisonment. It includes multiple instances which include the victim being under the age of 13 years; or aged from 13-18 years, or the perpetrator is from the same household or a relative of the victim or the victim was incapacitated and many more. The second degree of sexual assault does not include sexual penetration per se, as contrary to the first degree, but it covers sexual contact. The third and fourth degrees sexual assault include less violent crimes and deal with sexual penetration and sexual contact respectively. Therefore, Sri Lanka can also categorize such crimes and also include sexual contact which refers to intentional touching of intimate parts of body of a person without his/her consent, as an offense. Currently, Sri Lankan laws only recognize penetration based sexual harassment often ignoring other forms of assault which can be committed. By introducing a classification of crimes which includes within its scope sexual contact without consent, it will indirectly reinforce the fact that sexual crime exists on a continuum and can include a wide range of acts. Another important aspect of criminal justice is proportionality according to which the severity of punishment must be corresponding to the gravity of the crime. Sri Lanka’s current legal framework tends to treat sexual offenses in a very binary manner, either as rape or as general sexual harassment. By introducing a more graded system similar to this categorization, judges will be able to punish the perpetrators proportional to the facts of the case and severity of trauma and physical harm caused. Sexual harassment also takes place in contexts of power asymmetry, for instance between teacher-student, or employer-employee. Victims may consent to a sexual act under duress, coercion or pressure, something which the current laws in Sri Lanka do not cover. A degree-based framework will allow the law to differentiate crimes based on contextual coercion, and recognize the abuse of trust or authority as an aggravating factor on one hand and silence or submission in the face of coercion as insufficient to establish true consent on the other.
2. Japan
Before 2017, rape was governed by Article 177 of the Penal Code of Japan which defines it as forcible sexual intercourse through intimidation or assault with a female of 13 years or older and it only covered within its ambit penile-vaginal intercourse. Tokyo witnessed a series of protests called “Flower Demo” against the rising sexual assault cases which ultimately led to amendments in the Penal Code. The consent age was changed from 13 to 16 years but “excepting those up to 5 years older”, cases were identified where victims can’t fulfil the intention to resist as non-consensual partial rape, and the limitation period was increased to fifteen years for nonconsensual intercourse and to twenty years for indecent assault resulting in injury. After this amendment, a brutal crime in the case of Nagoya Kōtō Saibansho Kanazawa Shibu was committed where the defendant, who was left alone with a female student, sexually assaulted her. This marks a landmark judgement as the court held that merely because the victim contacted the defendant after the assault does not make the intercourse consensual. The court also took account of psychological elements involved in such cases by highlighting the tendency to “self-victimize” and the subsequent trauma faced by them.
While the legislation in Japan does not have any massive loophole, the problem there pertains to social stigma and lack of reporting measures with only one-third rape cases being reported to the prosecutors. Japan can initiate similar action undertaken by the UK, as discussed below, to improve the execution of laws and a profound reporting system. The UK had introduced the Victims and Prisoners Bill which introduces statutory guidance for Independent Sexual Violence Advisors, and restricts unnecessary requests for victims’ personal records. Apart from this, there was a collaboration between police, prosecutors, and academics which helped develop National Operating Models for the purposes of rape investigation with more focus on suspect behaviour than victim credibility. The Criminal Justice System Delivery Data Dashboard also provides open and updated data on rape cases, enabling local justice boards to analyse the execution and check if these cases are met with delays. Another crucial step can be educating the general public about rape stereotypes while throwing light on how no means no and the victim is not to be blamed for something this inhuman done by the perpetrator.
Conclusion
The comparative study of Sri Lanka and Japan reveals that addressing sexual violence requires more than merely enacting laws; it requires better reforms and victim-sensitive procedures. At the heart of this problem lies the persistent marginalization of the victim’s voice and the law’s failure to actively engage with the practicalities of how consent is shaped during sexual assault. While, Sri Lanka’s legislation highlights the urgent need for a redefined and holistic understanding of consent, Japan, while progressive in legislation, still faces a gap in reporting due to stigma and procedural barriers. In Sri Lanka, the problem stems from an outdated legal framework that interprets consent through a narrow lens. It also overlooks psychological coercion, contextual pressure, and power imbalances. The laws not only dismiss spousal autonomy but also normalizes child marriage and negates the lived experiences of survivors. In contrast, despite noteworthy reforms in consent age and judicial interpretation of post-assault behaviour, the low reporting rates in Japan enforced by stigma, fear, and lack of victim support, leads to justice not being served. Here, there is no doubt that law exists but it struggles to translate into real-world protection and accountability. Drawing inspiration from the United Kingdom’s multi-faceted approach, through victim-centred legislation and transparent data-driven systems, both countries can evolve toward creating environments where victims are empowered to report crimes without fear. The focal point of this piece is to identify the structural failure of consent being deferred. Changing this narrative requires not just legal reform but a cultural and systemic reorientation that places survivor autonomy and dignity as the core principles of justice. Ultimately, protecting women and children from sexual violence requires not only legislative advancements but also a coordinated effort between law enforcement, judiciary, and society at large.
**Suhana is a third-year student at Hidayatullah National Law University, Raipur
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.