Sexual consent

What is "Sexual Consent?"

Sexual consent refers to the voluntary, informed and conscious agreement to engage in sexual activity. It is a foundational concept in criminal and civil law to establish lawful sexual conduct, distinguishing it from offences such as rape, sexual assault and sexual harassment. The term consent is derived from the Latin consentire, meaning “to feel together”. Its modern use has been shaped by feminist and human rights movements, particularly from the late 20th century onwards, which reframed sexual violence as an issue of autonomy and agency rather than solely of physical force.

The age of consent is the legally recognised age at which upon attaining a person can give consent independently without guardian dependence. This consent ranges from contracts to marriage and sexual consent. As far as marriage and sexual consent, this phenomenon of “valid age of consent” has been changing since the enactment of the IPC. Initially age of consent was 10 for girl children, and Section 375 back then read the marital rape exception as “Any man who performs sexual intercourse with his wife without her consent is not considered rape as long as she is above 10 years of age.” However, in 1890, after the case of Phulmonee came the Age of Consent Bill, 1891, which raised the legal age of consent from 10 to 12. Then later on, the age for marriage of girls under the Child Marriage Restraint Act, 1929 (CMRA) was raised from 12 to 14, when biologically the body of the female would be more receptive to sexual intercourse and pregnancy. In 1949, the age of consent under the rape law was raised to 15 years. This became the basis while enacting the Hindu Marriage Act in 1955, which laid down a minimum age of 15 for girls and 18 for boys. further on in 2013, the minimum age for marriage was raised to 18, girls (and 21 for boys) as per the recommendations of the Committee on the Status of Women.

Official Definition

As defined in legislation/statues

CMRA -

As per the POCSO act and the BNS Sec 63 and the POSH act all these statutes define the legal age of majority to be capable of giving valid consent as 18 and any form of sexual intercourse performed with a person below the age of 18 amounts to rape as such a consent is immaterial in eyes of law meaning the state regards such minor indiviuals as incapable of giving consent as they do not enjoy suffrage and therefore any act, contract and some offenses performed by minors is considered to be void as they are essentially incapable of giving consent and such consent would be invalid since the beginning. The pre-2023 definition of rape under the IPC made consent the critical element in distinguishing lawful intercourse from rape. Explanation 2 under 375 defines consent as: “Consent means an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist the act of penetration shall not, by the reason only of that fact, be regarded as consenting to the sexual activity.” This provision was introduced through the Criminal Law (Amendment) Act, 2013, following recommendations of the Justice J.S. Verma Committee, which emphasised affirmative consent and communication over passive submission (closer to the US’ yes is yes standard).

Bharatiya Nyaya Sanhita, 2023

The new criminal code that replaced the IPC retains the same foundations of section 375 in section 63 conceptually, but reorganises and modernises its language. Section 63 states that a man is said to commit the offence of rape if he performs sexual acts under any of the following circumstances: Against her will; Without her consent With consent obtained by fear of death or harm; With consent under the misconception of identity (believing the perpetrator to be her husband); With consent given when incapable of understanding due to unsoundness of mind, intoxication, or stupefying substances; With or without consent when she's under the age of 18; When unable to communicate consent. This provision works under the framework of providing an absence-based definition, identifying when consent is not legally valid rather than defining a positive notion of sexual autonomy.

POCSO Act, 2012

Under POCSO, consent is irrelevant for minors (persons below the age of 18). This statute operates on a protectionist model, recognising all minors as legally incapable of giving consent to sexual activity. Engaging in sexual activity with a minor, even when it is between two minors, will constitute statutory rape regardless of context.

Information Technology Act, 2000

Section 66E: Addresses digital consent, penalising the capturing or dissemination of private images without consent, thereby extending sexual autonomy to the digital sphere as well.

As defined in policy / institutional documents

POSH Act, 2013

Section 2(n):

(n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior(whether directly or by implication) namely:—

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

The act defines sexual harassment as any unwelcome act or behaviour of a sexual nature. Here, unwelcome serves as a proxy for lack of consent, shifting the focus from sexual activity to conduct, context and power dynamics within workplaces.Consent need not be directly verbalised; instead, any physical, verbal, or non-verbal conduct of a sexual nature is treated as a violation and is unwelcome. This expands the ambit of consent beyond sexual acts to power, coercion, and professional boundaries, recognising that an employee may not explicitly refuse due to workplace pressures or fear of retaliation. The model ICC guidelines encourage institutions to sensitise staff and students on recognising non-consent, thereby reinforcing a culture of affirmative consent.

Universities Grant Commission (UGC) Regulations on Sexual Harassment, 2015

Mirrors POSH, the UGC guidelines extend the concept of consent into academic settings. Consent is conceptualised as voluntary, informed participation in interpersonal intersections. Guidelines require universities to establish Internal Complaints Committees (ICCs) and conduct awareness programs, emphasising that unwelcome or unsolicited sexual conduct constitutes a violation, independent of explicit refusal. Even silence or passive acquiescence is not treated as consent; affirmative and freely given participation is required.

National Health and Child Protection Policies

National Plan for Action of Children (NPAC) 2016-

Reinforces statutory protection against sexual abuse of minors and mandates awareness programs on consent, highlighting the difference between factual compliance and legal consent.

Medical Council of India/ National Medical Commission Ethics Guidelines

Consent is framed within patient autonomy, including sexual health services, where explicit and informed consent is necessary before any medical procedure or intervention.

As defined in case law(s)

Tukaram S. Dighole v. State of Maharashtra (1979)

In this case a 16 year 16-year-old tribal girl was raped by policemen in a police station. The trial court convicted the accused, but the Supreme Court acquitted them, reasoning there was no resistance, thus no lack of consent. This case stands to highlight flaws in equating the absence of resistance with consent. Feminist activism led to the Criminal Law (Amendment) Act, 1983, which introduced custodial rape provisions and shifted evidentiary burdens. This demonstrates early judicial misinterpretation of consent and the necessity for voluntariness beyond mere submission.

State of UP v. Chhotey Lal (2011)

The accused in this case continued sexual acts after the victim had withdrawn her consent mid-act. The Supreme Court ruled that consent is dynamic and must persist throughout the sexual act. Withdrawal at any point nullifies consent. This case established Continuity as a requirement of valid consent. Legally recognises that consent is not a one-time agreement and cannot be presumed from prior consent or intimacy taking the first step toward affirmative consent .

Kaini Ranjan v. State of Kerala (2013)

The accused argued that the victim did not resist, implying consent. Kerala High Court held that consent must arise from the exercise of reason and choice, not from passive submission. Reinforcing affirmative consent the court clarified that silence or acquiescence does not equal consent.

Deepak Gulati v. State of Haryana (2013)

The accused misrepresented marital intentions to induce sexual intercourse. Haryana High Court held that consent obtained by deception or false promises of marriage is invalid if there was mala fide intent. The judgment reinforced the informed nature of consent and addressed consent obtained under a misconception.

X v. State of Jharkhand (2022)

In this case prior intimacy between the accused and the victim was used to claim implied consent. The Supreme Court rejected implied consent as a defence, stating that each act requires fresh and explicit consent. Reinforces affirmative, situational consent every time individuals engage in sexual activity.

As explored in Research

As defined in scholarly/theoretical texts

Consent has been defined one way in the law, whereas research scholars and practitioners seek to define consent in different contexts. The legal definition serves to make it easier to determine whether consent was active during the time of engagement to determine easily if there is harm caused or not; however, such a generic understanding by courts about consent to be a mere "conscious agreement” is problematic, as various literature shows that consent is not as simple as a “No means NO” or a “Yes means Yes.” Consent is transformative and authoritative in a moral, legal, and institutional standard; it is what draws the line of difference between an act being morally, legally, and institutionally wrong. For example, when a person consents to surgery, it transforms the act from a battery to a permissible medical procedure.

Defining and Measuring Sexual Consent

Consent has been a widely debated topic among anthropologists, feminists and moral philosophers, but one such definition of consent is tied to one's own sexual autonomy to dictate their own action in furtherance of free will or the capacity to consent.

1 . Self-determination: "being able to determine one's own beliefs, values, goals and wants, and to make choices regarding matters of practical importance to one's life free from undue interference. The obverse of self-determination is determination by other persons, or by external forces or constraints."

2. Self-governance: "being able to make choices and enact decisions that express, or are consistent with, one's values, beliefs and commitments. Whereas the threats to self-determination are typically external, the threats to self-governance are typically internal, and often involve volitional or cognitive failings. Weakness of will and failures of self-control are common volitional failings that interfere with self-governance."

3. Having authenticity: "a person's decisions, values, beliefs and commitments must be her 'own' in some relevant sense; that is, she must identify herself with them and they must cohere with her 'practical identity', her sense of who she is and what matters to her. Actions or decisions that a person feels were foisted on her, which do not cohere.

By linking consent to sexual autonomy it adds a certain requirement for a person to be able to consent, and only those who fit that category are viewed as persons capable of consenting. Therefore, only when these three characteristics exist is it valid consen,t but this is a largely disputed view of consent as a much more prominent and accepted form of consent is affirmative consent a term that was first adopted as official policy at Antioch College in Ohio in 1991, primarily driven by a radical feminist student group known as the "Womyn of Antioch". Affirmative consent is consent that is affirmed at each step of sexual encounters through forms of consent which are of three types: internal consent, external consent, and cues. Kristen N Jozkowsh, a prominent researcher of sexual consent, has defined sexual consent as “one’s voluntary, sober, and conscious willingness to engage in a particular sexual behaviour with a particular person within a particular context.” This definition maintains that sexual consent is an internal experience one that is distinct from, but may be related to, sexual desire however sexual consent is also expressed through external cues through signs which depict active pleasure inducing but the problem with the external signs is that at times internal and external consent do not coincide and internal consent may be taken back during any point of time in an episode therefore in a study conducted in 2022 by Jozkowshi it was found that “Sexual consent can be conceptualized as a process of accumulating cues that build toward and continue throughout a consensual sexual encounter” the finding was consistent with several qualitative studies that have indicated people perceive consent communication as a process comprising multiple cues the study also suggests how that an accumulation of subtle cues may be perceived by people as indicating consent in the absence of an explicit affirmative communication of consent and that That people should take these details into consideration when determining whether certain cues reflect another person’s willingness to engage in sexual activity it suggests the process of sexual consent is not as straightforward and simple as “yes means yes.

Intersectionality: Gender, Kinks, Queerness and Consent

One of the drawbacks of affirmative consent is that it does not serve a practical purpose, as it does not account for major social factors such as imbalances of power, non-heterosexual sexuality, and it does not fully validate the affectionate or emotional side of sexual activity. Women tended to report lower levels of internal sexual consent than men. Sexual behaviours for which women and men reported experiencing similar willingness included using a sex toy, engaging in role play, engaging in BDSM, and having sex with somebody of the same gender. Each of these sexual behaviours may diminish stereotypical gender roles and permit women spaces to actively communicate their willingness, consequently increasing their sexual agency, which can lead to better, healthier, and more consensual sexual experiences. In a society with a generic understanding of sex meaning the quintessential vaginal-penile intercourse between men and women, it is normalised that men are the instigators of such romance, and their internal consent is highly evident in these cases, whereas women are seen as gatekeepers of sex and accepted by society to be “virtuous” and “chaste.” It is harder for them to provide consent, whether internally or externally expressively. However, if we are to look at other kinds of sexual activities which have not been as normalised and, to a greater extent, have been penalised in such forms of sexual activity, consent is highly crucial and is almost sacrilegious to the performance of the entire activity. For example, BDSM, though a long-standing practice since the 15th century, only gained visibility in the 18th century onwards through art as a medium of erotic literature, with works like those of the Marquis de Sade, Justine, or the Misfortunes of Virtue (Oxford University Press, 2012) and Leopold von Sacher-Masoch’s “Venus in Furs.” It is only during the mid-20th century that the acronym has been phrased and the consensual kink community has been normalised. If we are to look at both these communities in a comparative sense, one has normalised virtue and chastity, thereby endorsing male dominance and expression; the other, however, has endorsed consent for all parties involved in a sexual activity, as its core functioning stems from such consent and understanding.

Sexual Consent Literacy in Early Adults and Adolescents – Comprehensive Sexuality Education

Early adults and adolescents have a base level understanding of what consent is and what it entails. In a study conducted amongst university students and their sexual and non-sexual expereince using internal and external consent scales, it was found that all three studies referred to sexual consent as something that is “freely given” (or voluntary); though not explicitly stated, this would suggest that an act would not be consensual if it involved threats, force, or manipulation. Results seem to indicate that wantedness plays a role in how individuals conceptualise consensual sex, and young adults perceive the feeling of being wanted as a sexual cue. However, with such an understanding of consent is hazardous as it doesn’t account for the repetitive affirmative element of internal and external consent, and if mere “wantedness” is inferred as a cue for sexual activity, it may lead to a person assuming to what extreme the participant would be likely to go. However, adolescents, in contrast to early adults, attending university also experience a similar experience of communicating, receiving and denying consent. In a study, it was reported that

“Adolescents’ comments highlighted several modifiable factors that make it difficult to discuss sexual boundaries and say “no” to unwanted sexual activities, including low self-efficacy to identify and communicate sexual boundaries and an underlying desire to nurture or preserve a relationship. Indeed, one of the most striking findings to emerge was the willingness of many adolescents to prioritise a partner’s potential feelings of rejection (e.g., am I not liked? am I not loved?) over their own comfort and bodily autonomy during a sexual encounter.”

Non-verbal cues are less preferred nowadays, and verbal cues are treated as more informative about the participant's consent. Though gender still plays a key factor in determining roles of giving and receiving consent it this difference in powerplay reflects the stereotype of gendered sexual encounters where men’s consent is implied in sex as they are always instigators and women are supposed to be gate-keepers therefore giving or denying consent and in such a hyper-normative society the move from passive communication to active and verbal communication of consent is beneficial as it develops a more sensitive and communicative environment for adolescents and early adults to engage in sexual encounters and they enter into such encounters on a safer note.

Impact of seeking pornography as an alternate sexual consent education

Several studies point out to the fact that an adolocent’s first encounter to any kind of sexual activity is typical hetrosexual porn videos and this by itself is to be problematic as firstly most pornographic videos on the internet surface are misinformative, these video paint an unrealistiv picture of what sex is and what it is suppose to be thereby misleading first time veiwiers and given the lack of modern quality sex education in most countries this serves to be a problem as to why porn paints an unjustified and harmfull picture of what sex is, Only 2-3% of heterosexual pornography online include any condom use and non-use of condoms in any penetrative and oral sexual activity makes the participants vulenrable to contracting veneral diseases researchers have measured a correlation between the proportion of pornography featuring sex without condoms and the likelihood of engaging in unprotected anal intercourse. Pornography works agasint affirmative consent because if pornography are assumed to be alternative to a formal sexual education then it would be harmfull to the consenting party as ultimately pornographic videos are nothing but scripted movies and any type of consent to engage in such sexual acts is affimed before hand and therefore during the episode actors engage in all kinds of sexual activities and performances from bondage to multiple partners and in these case the partners dont affirm their consent every step of the way and if a first time consumer of such content is to educate themselves about consent through such videos where consent is implied or atleast perfomed in such a way to imply consent then the consumer would educate themselves with how consent works in the wrong sense

Consent Communication and Misunderstanding in Indian Youth

Sex in India is endorsed as taboo; it is censored and generally seen as solely reproductive, and SE is believed to promote non-reproductive acts to Indian youth. Nevertheless, Indian adolescents and young adults are increasingly engaging in sexual activities. A study conducted in 2000 found that the adolescents in lower and lower-middle social classes had a universal need for SE, and they preferred to receive it between 14-17 years of age. The study went on to discover their poor knowledge about STIs, pregnancy prevention, time of conception, various contraceptives, and prevalent myths about sexual behaviours. Further, an alarming 92% were aware only of AIDS and no other STIs. However, after two hours of SE (sex education), there was significant improvement in knowledge and awareness. Most students suggested they would avoid prostitutes and revealed a preference for monogamous relationships. This stands to show how Indian adolescents are ready to receive a formal sex education, but due to the high stigmatisation of being sexually active as an immoral act is what is hindering such quality education. However in the recent years there has been a significant increase in making minors aware of thier own bodies sexual autonomy throught the infamous “Good touch Bad touch movement” where children where educated on how to safeguard their selfs from child predators and taught to not allow any person who is not parents or sibling to be allowed to touch them, this was India’s first step towards providing a quality education to children about consent and body autonomy.

Types / Modes / Contexts of Consent

Affirmative/enthusiastic consent

Affirmative consent was constructed as an alternative to normal medium of communicating consent to begin to tackle the profound problem of sexual violence, it was first articulated as part of the college policy on college campuses in the United States in the 1990s in the wake of a series of sexual assaults on campus, students at the liberal arts institution Antioch College in Ohio developed an early, innovative model of consent which is the affirmative consent method in such a method. Legal scholar Lucinda Vandervort defines affirmative consent as ‘consent that must be communicated or it will be legally ineffective to give the other person permission to engage in sexual touching. Communication may consist of either words or conduct, but must be expressed, explicit, and unambiguous. Affirmative consent works on the participant's ability to express and receive cues and communicate when and only when one partner expresses external cues in line with internal cues is the consent affirmed. Some jurisdictions have begun to shift to a model of ‘affirmative consent’, meaning consent should be clearly articulated in all sexual encounters, with a simple ‘yes’ or ‘no’. Ideally, partners would both give an ‘enthusiastic yes’ and continue to affirm their willingness as the sexual encounter continued. The affirmative consent policy at Yale University is a good example of the trend,. Affirmative consent allows for agency, for precise boundaries, and promotes clear communication. It allows for the idea that desire and consent can both change during a sexual encounter. Affirmative consent is functionally more practical than normal consent as it shifts the focus on the offender, and in an offence of assault, it is easier to investigate into what the mental intent of the accused was at the time of perceiving the consent cues of the victim and how their conduct upon receiving an explicit no further seeks to portray the presence of a guilty mind.

Cons of Affirmative consent

Affirmative consent, though adept in determining one’s willingness to engage in sexual encounters, fails to account for an improper power balance in relationships, non-heterosexual partners' roles in a gendered normative larger society and much more. Ideas of affirmative consent assume bodily autonomy and the ability to speak up. This may not be the case for all social and cultural communities. There are long histories of some groups lacking bodily autonomy, including, most obviously, enslaved people. In all relationships, there is a power dynamic in play, due to which consent although an ongoing process. In cases where there exists an imbalance of power in such scenarios, it may not be possible for the consenting party to further consent and may seek to please the instigator even though they may not be fully consenting to the sexual encounter.

Implied consent

Implied consent refers to consent inferred from a person’s conduct, circumstances, prior relationship, or non-verbal cues, rather than an explicit verbal agreement. It rests on the assumption that behaviour or context — such as familiarity, physical proximity, or the absence of resistance — signals willingness.

Examples:

1. Engaging in kissing or physical intimacy after a date without a verbal affirmation.
2. Assuming continued consent in a long-term sexual relationship.
3. Interpreting silence, lack of physical resistance, or certain gestures as “agreement.”

Legal Context:|

Courts have increasingly rejected implied consent as a valid defence in sexual offence cases, particularly post the global shift toward affirmative and “enthusiastic” consent standards. The central idea in modern sexual offence law is that “consent must be communicated — clearly, freely, and contemporaneously”.

India:

The Indian Penal Code (Section 375 Explanation 2) defines consent as an “unequivocal voluntary agreement” to engage in a specific sexual act, communicated through words, gestures, or any form of communication. Courts, notably in State of H.P. v. Mango Ram (2000) and Kaini Rajan v. State of Kerala (2013), have clarified that passive submission under fear or misconception does not amount to consent.The Kaini Rajan case particularly emphasised that consent must involve an active, informed will, not merely the absence of resistance.Judicial reasoning now aligns with global policy shifts implying consent from prior intimacy or familiarity is increasingly seen as unsafe and invalid.

United Kingdom:

In R v. Olugboja (1982), the court distinguished between “real consent” and “mere submission.” Later, under the Sexual Offences Act 2003, consent was defined as agreement by choice with the freedom and capacity to make that choice — narrowing the space for “implied” interpretations.

United States:

Consent standards vary by state, but the move towards affirmative consent laws in campus policies (e.g., California’s “Yes Means Yes” law, 2014) explicitly rejects reliance on implication, silence, or past sexual history as indicators of consent.

Social and Cultural Context:

Implied consent historically reflected patriarchal and heteronormative assumptions that women’s consent could be “assumed” within relationships or marriage, or that lack of resistance equated to willingness. Feminist scholarship (e.g., Catharine MacKinnon, Lois Pineau) critiques this notion for reinforcing gendered socialisation where women are conditioned to be passive, and men are socialised to interpret passivity as acceptance. Cultural norms in many societies still valorise modesty or submissiveness, particularly among women, complicating the expression of refusal. This creates a dangerous legal grey area: victims may freeze, avoid confrontation, or “go along” out of fear — behaviours often misread as consent.

Situational/conditional consent

Situational or conditional consent refers to an agreement that is contingent on specific terms, boundaries, or circumstances. The individual’s willingness to engage in sexual activity is tied to one or more explicit or implicit conditions — such as the use of contraception, the scope of the act, the time frame, sobriety, or emotional context. Once those conditions are breached or altered, the original consent becomes invalid.

Examples:

1. “I agree to have sex only if you use a condom.”
2. “Only tonight — I don’t want a relationship afterwards.”
3. “I’m okay as long as I’m sober.”
4. “I consent to touching but not penetration.”

If any of these agreed conditions are disregarded — for instance, removing a condom without permission (“stealthing”) or escalating from one act to another without re-confirmation — the conduct ceases to be consensual.

Legal Context

Modern jurisprudence across jurisdictions recognises that consent is not a blanket authorisation. It is act-specific, time-specific, and conditional, meaning it can be granted for one circumstance but not for another.

India

The Indian Penal Code’s Explanation 2 to Section 375 (post-Criminal Law Amendment Act, 2013) defines consent as an “unequivocal voluntary agreement” for a specific sexual act. This implies that each act and each circumstance requires its own explicit consent.The State of Punjab v. Gurmit Singh (1996) and Kaini Rajan v. State of Kerala (2013) judgments emphasised that the validity of consent depends on the entire factual matrix — if conditions under which consent was given are altered or violated, the consent loses meaning.Although Indian jurisprudence has yet to explicitly codify “conditional consent” in sexual offences, courts have implicitly acknowledged its breach, for instance, where consent was induced under false promises, intoxication, or deception (Pramod Suryabhan Pawar v. State of Maharashtra, 2019).

United Kingdom

Under the Sexual Offences Act 2003, consent must be “agreement by choice with the freedom and capacity to make that choice.” Courts interpret “choice” to include conditional or qualified consent.In Assange v. Swedish Prosecution Authority (2011), the court held that removing a condom without the partner’s knowledge vitiated consent — marking an early recognition of “conditional consent.”Later, R v. F (2013) affirmed that deviating from agreed conditions during sexual activity (e.g., ejaculating without consent) could amount to rape.In 2021, “stealthing” was explicitly recognised as a form of sexual assault in several UK and EU jurisdictions.

United States

Conditional consent is recognised in many state-level laws and campus codes under affirmative consent standards.In People v. Lee (2018, California), the court held that removing a condom without consent (stealthing) invalidates prior consent and constitutes sexual assault.California’s “Yes Means Yes” Act (2014) and similar campus policies underline that consent to one act or circumstance does not imply consent to others, nor does it survive the breach of agreed conditions.

International Developments

The World Health Organisation (WHO) and CEDAW General Recommendation No. 35 affirm that sexual autonomy requires respect for “the specific boundaries” of consent.UN Women’s 2021 policy briefs explicitly identify conditional consent breaches (such as stealthy or continuing after intoxication) as forms of gender-based violence.

Social and Cultural Context

Conditional consent is especially important in contexts where power, gender, or relational expectations blur the understanding of boundaries. In patriarchal societies, individuals, particularly women and gender minorities, may struggle to assert specific or partial boundaries, fearing emotional backlash or coercion.Feminist and socio-legal scholars (e.g., Lois Pineau, Kimberlé Crenshaw) argue that situational consent helps reclaim agency by recognising sexual autonomy as fluid and contextual. It rejects the “all-or-nothing” notion of consent and allows for nuanced expressions of choice that adapt to evolving comfort levels.However, challenges persist:Social stigma often leads to silence when conditional boundaries are violated (e.g., fear of victim-blaming in stealthing cases).Institutional and police responses frequently treat conditional breaches as “grey zones,” rather than violations.Cultural myths of obligation within romantic or marital contexts further obscure the legitimacy of conditional withdrawal or limitation.

Digital / mediated consent

Digital or mediated consent refers to consent given for sexual or intimate interactions conducted, recorded, or transmitted through digital technologies — including sexting, sharing intimate images, engaging in virtual sexual activity, or recording sexual acts. It encompasses not only consent to the act itself but also separate, explicit consent for recording, storage, transmission, and redistribution of any digital or visual material.In essence, consent in digital contexts is multi-layered: one may consent to a sexual act but not to being filmed, or to sharing an image privately but not to its further transmission or online publication.

Examples:

1. Sending or receiving nude photographs or sexual messages (sexting).
2. Consenting to a video call involving sexual activity.
3. Allowing a partner to record a consensual act, but not to distribute it.
4. Sharing intimate material in a private chat but not authorising it to be reposted, stored, or shared with others.
5. Use of dating apps or virtual reality platforms for sexual or romantic interactions.

Consent to one layer e.g., participation in an act does not imply consent to another e.g., recording, storage, or distribution. Each step requires fresh, informed, and voluntary agreement.

Legal Context

India

Digital sexual interactions and image privacy are governed through a combination of criminal, cyber, and data protection laws, Indian Penal Code (IPC) & Bharatiya Nyaya Sanhita (BNS):Sections 354C (voyeurism), 354D (stalking), and 509 (insult to modesty) address unauthorised capturing or sharing of intimate images, including through digital means.The K.S. Puttaswamy v. Union of India (2017) judgment elevated informational privacy and bodily autonomy as part of the fundamental right to privacy under Article 21, providing a constitutional basis for regulating non-consensual sharing of sexual content.

Information Technology Act, 2000:Section 66E criminalises the violation of privacy through capturing, publishing, or transmitting images of private areas without consent.Sections 67 and 67A penalise transmission or publication of obscene and sexually explicit content, respectively, including through messaging platforms or social media.Section 72A (breach of lawful contract) covers misuse of personal information by intermediaries or service providers.

The Shreya Singhal v. Union of India (2015) case refined online speech standards but reaffirmed liability for privacy violations.

Protection of Children from Sexual Offences (POCSO) Act, 2012 mandates that any sharing or possession of sexual images involving minors constitutes an offence, even with ostensible consent, as minors cannot legally consent to sexual content.

Workplace Context:

The POSH Act (2013) extends to virtual or digital workplace interactions. Sending sexually suggestive messages, images, or making unsolicited video calls can constitute sexual harassment, even outside physical spaces.

International Developments

United Kingdom:

The Criminal Justice and Courts Act, 2015, introduced the offence of “disclosing private sexual photographs or films without consent” — commonly termed “revenge porn.”The Online Safety Act, 2023 and the Data Protection Act, 2018, further strengthen rights over image-based data, including AI-generated deepfakes and manipulated sexual content.

United States:

State laws vary, but many have enacted specific non-consensual pornography statutes criminalising both creation and distribution without consent.The Deepfake Accountability Act (proposed, 2019) and recent policy debates recognise synthetic sexual imagery without consent as a privacy and gender-based violence issue.

European Union:

The General Data Protection Regulation (GDPR) frames intimate image consent under “special category data,” requiring explicit consent for processing or sharing such content.The EU’s Digital Services Act (2022) mandates platforms to swiftly remove non-consensual sexual content and prevent re-uploads.

Social and Cultural Context

Digitally mediated sexual communication is now a common form of intimacy, especially among young adults. However, the digital layer intensifies vulnerabilities: once shared, an image or recording can be copied, leaked, or weaponised indefinitely.Feminist scholars and digital rights activists highlight that non-consensual image circulation reproduces gendered violence online, where women and queer individuals are disproportionately targeted through “revenge porn,” deepfake sexualisation, and doxxing.Sociologically, the stigma surrounding sexual expression, particularly female sexuality, amplifies the harm. Victims often face “slut-shaming,” reputational damage, and coercive control — while perpetrators exploit cultural taboos to silence survivors.Additionally, the blurring of private and public spheres online creates ambiguity: people may conflate visibility (posting selfies, using dating apps) with consent to sexualisation, a misconception that underlies digital harassment and voyeurism.

International / Comparative Experiences

The Conceptual Shift: From Force to Consent

Historically, most jurisdictions defined rape through the use of force or lack of resistance. Over time, reforms reframed the offence to focus on the absence of consent, and now increasingly, the affirmative presence of consent.This shift aligns with feminist jurisprudence that centres sexual autonomy and bodily integrity, moving away from outdated notions of “chastity” and “moral character”.

United Kingdom — Sexual Offences Act 2003

Statutory Definition: Consent = “agreement by choice, with freedom and capacity to make that choice.” (Section 74) Offence if a person reasonably believes there was consent (objective + subjective standard).Key Features:Recognises conditional consent, deception, and intoxication as factors negating consent. R v Bree (2007): an intoxicated but conscious person can consent; capacity is factual. R (Monica) v DPP (2018): deception of political identity could vitiate consent (shows contextual interpretation).

Philosophical Shift

Law moves away from “resistance-based” to “choice-based” model, embedding sexual autonomy within Article 8 (ECHR: right to private life).

Canada - Section 273.1, Criminal Code

Defines Consent as an voluntary agreement to engage in sexual activity.Key Doctrines include consent Must be affirmative and contemporaneous (R v Ewanchuk, [1999] 1 SCR 330). No consent if obtained through force, threats, fraud, or abuse of authority. Cannot be implied or “assumed” from silence or previous conduct. Consent cannot be given while unconscious (R v JA, 2011 SCC 28). Reasoning: Canadian jurisprudence treats sexual autonomy as a Charter right under Sections 7 and 15 (life, liberty, and equality). Feminist legal scholars like Sheila McIntyre and Elizabeth Sheehy influenced reforms to recognise coercive contexts and affirmative participation.

Sweden - The 2018 Consent Law (“Yes Means Yes”)

Core Reform: Sex without explicit consent is rape, regardless of proof of force. Definition: Consent must be given “freely through words or conduct”.Impact: Broadened conviction scope; significant rise in reporting and public awareness. Recognised “passivity” as non-consent. Accompanied by mandatory sex education and public campaigns on communication. Jurisprudential Value: Sweden represents the most complete legal embodiment of the affirmative consent model — making consent, not coercion, the central element of sexual integrity. It aligns with the Council of Europe’s Istanbul Convention (Art. 36), which urges all member states to define sexual acts without consent as a criminal offence.s

France – 2025 Reform to Penal Code

France’s redefinition of rape marks a decisive philosophical shift from a “resistance-based” to a “choice-based” legal model, embedding sexual autonomy within the framework of Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private life. The reform eliminates the requirement to prove violence, coercion, or physical resistance, instead centering the legal test on the presence or absence of freely given, informed, and revocable consent. This aligns French law with contemporary European standards and reflects evolving understandings of sexual violence, particularly in cases involving manipulation, incapacitation, or silence. The reform was catalyzed by public outrage over the "Gisèle Pelicot case", where legal ambiguity around consent given by a women - led to acquittals despite clear evidence of non-consensual acts. Feminist legal theorists and human rights advocates played a pivotal role in shaping the reform, arguing that true sexual autonomy requires affirmative participation, not merely the absence of resistance. The law’s passage signals a broader cultural reckoning with power, agency, and dignity in sexual relations.

Appearance of ‘sexual consent’ in Data / Reports / Survey Research

University studies/campus surveys

What is typically measured: Prevalence of unwanted sexual contact/assault, modes of communication about consent, knowledge of affirmative consent policies, rates of reporting, and perceived barriers to reporting. Common findings: High prevalence of non-consensual encounters among students; low reporting due to stigma and fear; confusion about what counts as consent (especially in alcohol related encounters).

Public health and sexual violence reports

Public-health framing: Sexual consent is treated as a determinant of sexual health, interpersonal wellbeing and prevalence of sexual violence. Reports often link lack of consent to mental health outcomes, unwanted pregnancy, STIs, and broader social harms. Data sources: National crime statistics, large-scale health surveys (e.g., NFHS-type surveys in some countries), NGO reports, and hospital/forensic data. Limitations: Underreporting, inconsistent definitions, and differing legal thresholds (e.g., minors vs. adults) complicate prevalence estimates.