Criminalization and Fair Labelling of Deceptive Sexual Relations: need of the hour
Author: Ayushi Raghuwanshi
Designation: Advocate, Indore High Court
Email ID: firstname.lastname@example.org
The conviction for deceptive sexual relations is nothing unusual, in many countries including India it is a punishable although no such offence has been categorically defined in the statutes.
What is fundamental for conviction is the procurement of consent for establishing sexual relations by practicing deception, for instance, a tutor having sexual intercourse with his student making her believe that it would improve her ability to sing, a woman being deceived to agreeing to sexual intercourse on the condition of the use of condom, deliberate failure to disclose the HIV positive status, etc. In all these cases the consent of the victim is obtained by the accused thus making it a consensual act between two adults but that consent is obtained through deception. This consent being obtained through deception makes it fall under the ambit of an offense, being sexual assault in most of the countries.
Deceptive sexual relations
In order to develop a fair understanding of deceptive sexual relations it is imperative that the word deception is interpreted first. In criminal law we find this concept in those offences which are centered on it i.e. offences relating to property (for instance Section 28, Section 415, Section 420 of Indian Penal Code, 1860)
The word ‘deception’ has not been defined in the Indian Penal Code, general interpretation of deception is -a demonstration or articulation which deludes, shrouds reality, or advances a conviction, idea, or thought that isn't accurate. It is regularly accomplished for individual gain or favourable position.
Deception leads to manipulation of the beliefs of the other person which serves an advantage to the person deceiving. Strictly confining to the present context of deceptive sexual relations, deception must lead to the other person agreeing to establishing sexual relations as a result of the induced belief. It should procure the consent of the victim as the sexual offences revolve around the absent of the victim’s consent.
Indian law regarding the situation
In sexual relations the absence of consent results in it being an offense as the very essence of the offence is the absence of consent. The arrangement behind the exception of obligation on account of consent depends on the rule that a man is the best appointed authority of his own interest and if he chooses to endure hurt deliberately then he can't whine of it when it comes to fruition.
According to section 90 of the Indian penal code consent is held to be no consent if it is given under fear or misconception. However it is a definition in the part of General Exceptions and can't supersede a specific provision under the Code. Be that as it may, it can't have any significant bearing to Section 375, where the degree and nature of consent and conditions under which it stands vitiated has been explicitly characterized.
Indian penal code does not categorize the deceptive sexual relations into a separate class of offences, the only provision under which such offences find a place if at all is under section 375 which defines rape and here the question arises whether the deceptive sexual relations ought to be punished in the same manner as the grave offense of rape?
Clause 4 of the provision sets out one particular instance of deception clearly and that is when the woman consents to the act on the false belief of being lawfully married to the person. In the case of Bhupinder Singh Vs Union Territory of India the consent was given on the belief that the accused was her legally wedded husband whereas their marriage was not valid and thus he was convicted for the offense.
Clause 5 protects the interests of the victim who by different reasons are unable to form a right judgment as to the nature of the act and thereby give their consent.
In the case of Tulsidas Kalonkar Vs State Of Goa the consent was invalid because of the mental condition of the girl. However this would not fall under the category of deception because there is no false representation of facts.
The offense being punishable in other common law jurisdictions is punishable as such in India only when it satisfies either of the two conditions, the first being categorically stated in clause 4 of section 375 and the other having been established by judicial precedents on the pretext of a false promise of marriage.
In the case of Uday Vs State of Karnataka however the court held that a false promise to marry cannot come under the ambit of misconception of fact. In the recent case of Maheshwar Tigga Vs State of Jharkhand the Supreme Court held that, ”under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law but the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over year”
Thus there is no provision under the Indian law where deceptive sexual relations can actually be punished as a separate category of offences. This results in elusion of such offenses from the ambit of punishment. For instance, the victim agreeing to sexual intercourse on the induced belief that the accused would not ejaculate, deception about an attribute like religious and ethnic background, marital status, age etc. would not be punishable at all? Or punishing them as rape would be justifiable at all? By commending each demonstration of deceit to the degree of sexual assault (rape), we land up doing an incredible insult to the real casualties of this most intolerable wrongdoing.
Need of Fair Labelling
In India along with most other common law jurisdictions deceptive sexual relations are prohibited by means of punitive measures for the offence of sexual assault and that raises the question whether it is justifiable to do so? The gravity of the offence of sexual assault (rape) is not in line with that of deceptive sexual relations more particularly so when the deception is on puny grounds. This calls for the need of fair labelling of these kinds of offences and not punishing them under the label of much more grave offence. By not doing so we are only diluting the seriousness and the viability of the law against sexual assault.
Deceptive sexual relations are undoubtedly offences against the sexual autonomy of the individual and are incorrect both legally and on grounds of morality.
However by giving grave and heinous offence like sexual assault a moral connotation we only undermine the gravity of the offense and play with the efficacy of the provision meant to curb it. Thus there is a need of creating a separate category of deceptive sexual relations offences.
1. CrimA 5734/10 Kashur v State of Israel  (Isr)
2. Papadimitropoulos v R  HCA 74
3. State of Israel v Mehadakar 522/07 Nazareth District Court (2007) 38