The arrest of dismissed Congress MLA Rahul Mamkootathil has once again triggered a stirring debate on consent in Kerala. Rahul is currently in custody for charges including rape in a complaint filed by an NRI woman. This was the third complaint against the young MLA who was once projected as the Congress’s future voice. While he has repeatedly claimed that sexual intimacy with these women was consensual, the fragile nuances of consent are distorted in most discussions, weaponising grey areas to discredit survivors.
The chats between Rahul and survivors, where the women express willingness to engage in sexual intimacy, are being cited to fortify his claims about consent. Despite his false promises to marry them and his insistence on unprotected sex, and their getting pregnant as a prerequisite, his supporters have been lobbying to frame the series of allegations as politically motivated.
What emerges, predominantly, is the reinforcement of the popular belief that consent operates like a switch – either on or off. This is often attributed to Indian laws, which say that consent must be free and voluntary, but do not specify acts that amount to a violation of consent.
However, several acts alleged to be committed by the MLA underline that consent was violated. For example, Rahul’s refusal to use a condom (by lying that he wants children) is akin to stealthing, which is treated as sexual assault in several countries.
Stealthing was studied by Alexandra Brodsky in a paper published in the Columbia Journal of Gender and Law in 2017. The term, which the queer community has used for a long time, includes either the non-consensual removal of a condom during the last minute or messing with the contraception through acts like contaminating or poking holes in the condom. It also covers the stoppage of taking contraceptive medications by a woman to get pregnant, when the man is under the belief that she is on contraceptives.
In Rahul’s case, one of the chats that surfaced was him telling the woman not to take contraceptive pills when she asserts it’s important.
Stealthing is considered sexual assault in several countries, including Argentina, Denmark, Germany, Australia, Canada, and Switzerland, among others. Though the United Kingdom does not have specific laws against stealthing, there have been convictions for rape on account of it.
The basis of these convictions is consent. When the woman has not consented to unprotected sex, or engages in unprotected sex on the basis of a false promise to marry or start a family, it amounts to a crime. The Indian law is also clear on penalising sexual intimacy under a false promise to marry.
But most of how this argument pans out in court depends on the framing of the facts and judicial interpretations, says senior lawyer and rights activist Sandhya Raju.
“The principle that even at the last moment a person can withdraw consent must be kept in mind. But in practice, to prove that the woman withdrew consent is difficult – it requires the judiciary to challenge stereotypes and situate the sexual act within the framework of gender and power imbalance,” she says.
This lack of reinvention is evident from some recent judgements of courts which retract from the position that sex under a promise to marry is assault. Though verdicts are arrived at on a case-by-case basis, it is important to factor in the misled men’s rights activist stand that vilifies women who approach the courts in such circumstances.
The MLA’s case is further complicated by chats between him and the survivors. Several of them have emerged online, and they all point to an initial romantic relationship between the two parties. This is largely the basis for the argument that the sexual intimacy was consensual. This, despite the women alleging that the relationship later turned abusive, and they were also blackmailed.
But again, consent is the continued expression of willingness, shaped by power and circumstance. Consent for a romantic or sexual relationship does not amount to consent for abortion or violent sexual acts. In her paper, Brodsky explains that often, acts like stealthing are done by men who wish to assert their ‘manliness’ on the women through impregnation.
It is also a well-researched position that negotiations about consent, especially in a closed room, are subject to how much power the woman has in that particular situation. In Rahul’s case, most women were younger, and they all accused him of physically attacking them in private, followed by blackmail. In such circumstances, women may not be in a position to retaliate.
Even the Indian law agrees that lack of resistance does not mean consent, since gender power imbalance leads to intimidation and perpetrators gaining the upper hand over survivors.
When society and courts reduce consent to messages, relationships, or the absence of resistance, the reality of sexual assault is erased, shifting the legal and moral burden of proof to survivors. Consent must be understood as something that can be withdrawn, breached, or manipulated – for justice and accountability to be upheld.