Victims no longer need to prove resistance in rape claims —SC

(Trigger warning: mention of rape, incest)

Rape victims no longer need to prove or demonstrate resistance if the crime was committed through force, threats, or intimidation.

This clarification stems from a Supreme Court (SC) ruling.

In a statement released on Thursday, September 19, the SC referred to a June 2024 decision written by Associate Justice Maria Filomena Singh where a father was found guilty of raping his daughter when she was between 9 and 16 years old — from 2009 to 2015.

In upholding the conviction, the SC addressed the question of “whether resistance constitutes an element of rape”.

The SC reaffirmed Article 266-A of the Revised Penal Code, which states that there is rape when sexual intercourse is done (a) through force, threat, or intimidation; (b) when the victim is unconscious or deprived of reason; (c) through fraud or abuse of authority; or (d) when the victim is under 12 years old or is demented.

According to the SC, in rape cases involving these circumstances, the mere fact that the sexual act took place is enough to establish the crime.

Furthermore, the SC overturned its previous decision, which implied that a woman needed to demonstrate resistance to claim she was raped.

The High Court underscored that these pronouncements reinforce harmful stereotypes that perpetuate gender bias and insensitivity.

“The right of women to autonomy and bodily integrity should be recognized and respected. The belief that if a woman does not resist, then she consents to the rape is unacceptable in any civilized society. It presumes that men are entitled to free access to a woman’s body at any given time and place,” it added.

The SC noted that requiring “proof of resistance” overlooks the reality that women, who are often seen as traditional victims of rape, are conditioned to conform to the male gaze and believe it is impolite to be assertive. It also disregards the fact that resisting a man’s sexual advances can endanger a woman’s safety or even lead to her death.

“Rape is perhaps the only crime where the trial often focuses on the conduct of the victim instead of that of the accused. The need to prove lack of consent often becomes a question of the victim’s behavior, her history, and her conduct before, during, and after the rape as implying that some women can be ‘bad enough’ to be raped while others, because of their background, choices, and conduct, are simply lying when they claim that they were raped. It is time to strike down such uninformed and ignorant views,” the court stressed.

The SC also pointed out that, in many instances, the perpetrator is someone close to or known by the victim, such as in incestuous rape, as seen in the case mentioned earlier.

It emphasized that a child cannot be expected to resist her own father’s abuse. 

“A child cannot be expected to resist her own father’s abuse. Not only is the father physically superior, he also asserts moral authority over the child, who has been raised and taught to obey their parents. Thus, when the offender is the father and the victim is his minor child, moral ascendancy or influence replaces the element of violence or intimidation,” the high court said. 

In a decision in April 2014, the Supreme Court emphasized that “resistance is not an element of rape and the law does not impose upon the victim the burden to prove resistance”, nor does it require her to detail the specific form of that resistance.

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