Category Archives: Family Law

The Validity of Advance Sexual Consent

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The validity of ‘advance consent’ is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the ‘advance consent’ which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation — after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the ‘standard’ issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of ‘non-consensual consent’ where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as ‘abuse contracts’ where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults ‘“ which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be ‘real’ and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

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Spinoffs and Sequels

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It looks like Michael Douglas and his ex-wife Diandre are set to debate the difference between these two forms of derivative works — sequels and spinoffs — in Court. Under the terms of their divorce, Diandre is entitled to fifty per cent of income from spinoffs of movies in which Michael Douglas acted before their divorce.

The issue has come up with reference to “Wall Street 2″ which Diandre is treating as a spinoff, and Michael Douglas is treating as a sequel. The press and publicity associated with the film all seem to treat the film as a sequel as well. However, the terms “sequel” and “spin off” are not defined by copyright law, and the term “spin off” is not defined in their divorce agreement either. Also, it isn’t clear why the terms of the divorce refer to spinoffs and not to sequels given that the former term is usually used with reference to TV programmes, and the clause itself refers to films.

A sequel is defined as “a literary work, movie, etc., that is complete in itself but continues the narrative of a preceding work”, while a spin off is defined as “something derived from an earlier work, such as a television show starring a character who had a popular minor role in another show”.

The link between spinoffs and sequels appears to be only incidental — they are both derivative works, and that appears to be where the similarity between them ends. A spinoff would generally be primarily unrelated to the original work — think “Joey” and “Friends” — while a sequel would build on the story contained in the the original work.

ABC News has an interesting report on the subject (here) where they had two lawyers discuss the matter.

Medea and Criminal Liability

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PD image from WikiCommons

Medea by Sandys from WikiCommons

Euripides’ Medea has defined the modern perception of her. The play portrays the “terrible decision that Medea comes to as a result of her painful suffering.”

Her “painful suffering” was the suffering which her husband Jason inflicted on her by being unfaithful to her and marrying Glauce, a princess to further his political ambitions. He justified himself by saying that he could not pass up the opportunity to wed a princess, and Medea was, after all, a barbarian woman, never mind that she was a barbarian woman who’d given up family, home, and homeland for him. He ultimately, apparently, planned to “unite” the two families — his family with Medea, and with Glauce — and turn Medea into his mistress.

Medea’s “terrible decision” was the plan she decided to execute to revenge herself on Jason — she killed Glauce (and, Glauce’s father, Creon) using a poisoned dress, and killed the two children she had had with Jason in order to spite Jason and cause him as much pain as possible, or so one interpretation runs. Whether or not she should have been held accountable is debatable though.

Jason had supposedly remarried so that he could have children with Glauce. And when Glauce and his father-in-law were murdered by Medea, he apparently rushed to find the children he had had with Medea so that they would not be subjected to revenge because of their mother’s act. It could well be argued that one of Medea’s aims in killing her children was to spare them death at the hands of her enemies.

Then again, by killing the children, she effectively killed a part of Jason. And perhaps that was the ultimate revenge: Jason wanted children, and she not only deprived him of the possibility of having children with Glauce but also killed the children he had already had with her. To kill the children for a reason that was anything but altruistic would involve viewing the children not so much as individuals in themselves but as extensions of their father, which perhaps could be understood given that contemporary Greek society was intensely patriarchal, and viewed women mainly as breeders and chattel.

Contemporary Athenian law also allowed a man to marry and have children by a citizen woman while keeping a foreign woman who was not a citizen, in this case, Medea, as a concubine. And as far as divorce was concerned, all a man had to do was formally repudiate his wife, and send her back to her father or other male guardian with her dowry. There were two reasons who this did not apply to Jason and Medea though: firstly, Medea had contracted her own marriage, and as such, she had no one she could be “returned to”. Secondly, Jason had sworn to be wed to Medea before Zeus and Hera, and as such, by divorcing her, he had in fact, broken an oath to the Gods.

Whether on not Medea is, or should be, criminally culpable is an open question though lying on thoroughly ambiguous moral ground. Medea was obviously distraught at the time she developed her plan for revenge. The murders were premeditated to the extent that she did not commit them on the spur of the moment. However, she developed the plan at a time when she was quite obviously not emotionally stable. And the duration of the time from when she first conceived of the plan to the time when she executed it was short.

In addition to this, there is the question of provocation. In law, if a person commits a crime in consequence of being provoked, their criminal liability could be diminished to the point of being non-existent. It isn’t clear whether Jason’s conduct would be viewed as “adequate provocation” to cause Medea to commit multiple murders — presumably, it was not unheard of conduct at the time the play was written — although it would be difficult to argue that Medea’s committing the murders had nothing to do with her being cast off, and banished. She lived in a society in which she seems to have had no recourse to any form of justice, as a “barbarian” woman she was especially disadvantaged, and being exiled would have left her in an entirely hopeless position.

Medea states in the play that she knows her own mind, and that she knows that what she is doing is wrong. However, given that the act which seems to have spurred her to commit the murders is her banishment with immediate effect by Creon, Glauce’s father, it is unlikely that she did actually know her own mind.

She managed (by being manipulative) to get a twenty-four hour grace period from Creon, during which time she both planned and executed the murders. Jason arrived to meet her after Creon left her, and insulted her. It was in these twenty-four hours that she planned and committed the murders. In the play, she is simply not decisive with regard to murdering her children until the last possible moment.

Medea unequivocally states in the play that she is an autonomous individual — an assertion which in itself would have been questionable especially given that women were subject to the rule of men in a very literal sense with little autonomy of their own. Perhaps in the way that Glauce seems to have been little beyond a pawn in the schemes of her father and Jason, and who died because of those schemes.

Medea, however, managed to thoroughly subvert Jason’s schemes, and escape the consequences of her actions. At the end of the play, she is shown escaping in a chariot provided by the Gods — leaving no doubt of whom they supported. She speaks in a voice which is reminiscent of that used by the Gods, cold and distant. Driven to murder by Jason, she is ultimately far removed from emotion itself, it would seem.

Image: Medea by Sandys from WikiCommons

(This article is by Nandita Saikia and was first published at LawMatters.in.)

More Protection to Women in Live-in Relationships

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Women in live-in relationships are supposed to receive the same protection as wives when it comes to domestic violence. Now,  it appears that that protection also applies to dowry.

Section 498 A of the Indian Penal Code has long been criticised by so-called men’s rights activists who claim that they are doing such things as ‘saving Indian families’, never mind that they’re doing so at the expense of the safety of Indian women. Section 498 A makes cruelty against women by their husbands and in-laws an offence.

So far, it has been possible for a man to avoid being brought under the ambit of this Section by simply not marrying the woman in question. The literal interpretation of the Section requires a wife to be treated cruelly for an offence to have been committed, and the logic was: where there is no wife, there can be no cruelty under the ambit of this Section of the law.

In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., a Bench of the Supreme Court comprising Justices Arijit Pasayat and A K Ganguly changed this though. Justice Pasayat who wrote the judgment said that the would not allow a narrow interpretation to stand in the way of women’s rights.

In this case, a man named Koppisetti Subbharao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498 A did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else.

The Court was not impressed. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?”

Preferring a liberal construction of the law, the Court went on to explain why it had rejected a literal and technical interpretation saying: “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand for money.”

This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.

Judgment: http://judis.nic.in/supremecourt/helddis3.aspx

Amending the Law on Adultery

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Adultery was made a crime under India’s current legal system during the time of the Raj itself. Based on the idea that a wife belonged to her husband in the most literal sense of the word, the Indian Penal Code allowed husbands to choose to have criminal proceedings initiated against those men with whom their wives committed adultery since those men had laid claim over the ‘property’ which did not belong to them.

After independence, the law was challenged in a series of decisions, but the Courts upheld its validity and said that not only was the law constitutional but that it was also fair not to proceed against an adulterous wife through the Indian Penal Code. The rationale behind this changed though; wives were seen as being innocent and as requiring protection. Also, the courts ruled that the provisions of criminal law were not intended to be used by one spouse against the other.

Given current circumstances, and considering that Victorian England along with its moral code no longer exists, one would imagine that adultery should not be a crime. However, it has been widely reported that contrary to attempting to decriminalise adultery, the Government has been trying to garner opinions to see if and how the law can beamended to make wives punishable for the offence of adultery as well.

A number of activists have opposed this move for reasons ranging from their not believing that women should be made accountable considering that they are hardly in powerful socio-economic positions to not believing that adultery should be a crime at all.

It isn’t entirely clear why the Government is concentrating on making the criminal provisions dealing with adultery gender-neutral instead of focussing on making adultery merely a civil wrong. Civil wrongs do not leave people in gaol, crimes can.

*IPC section 497: Whoever has consensual sexual intercourse with a wife of another man, without the consent or connivance of that man, is guilty of adultery.”

Wombs for Rent

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On June 25, 2008, the Ministry of Women and Child Development held round table conferences on surrogacy and on building partnerships with men to promote women’s welfare and development.

The issue of renting wombs has been widely discussed abroad whether it’s CNN saying that giving birth has become the latest job to be outsourced to India or the NYT pointing out that while couples from foreign countries pay about $30,000 to clinics, the surrogate gets only about $7,500 out of that amount. (Like everything else which is outsourced to India, it’s quite a bit cheaper to use an Indian surrogate than an American one.)

And it seems quite a bit easier to exploit Indian women: one woman from the US using a surrogate said that Indian surrogate stays at a clinic or supervised home where she can be effectively policed unlike an American surrogate over whom no such control can be exercised. All that would exist if the surrogate were American would be a third party mediator to try to iron out problems.

Also, in the US, the surrogate would have legal rights to the child till she signed parental rights over to the biological parents. Presumably, that isn’t a problem which arises in India since the women who seem to act as surrogates are extremely poor and agree to the arrangement simply to take care of their own families.

There exist ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ but they are not legally binding. An Assisted Reproductive Technology (Regulation) Bill, 2008 has also been drafted although it is unlikely to be enacted at any point in the near future. The bill says the child’s birth certificate shall bear the names of his or her genetic parents, that a woman cannot be a surrogate more than three times and that she must be both between the age of 21 and 45 years and disease-free.

Addendum:

It isn’t as if all’s well in other countries though.
The American Bar Association drafted a Model Act Governing Assisted Reproductive Technology. So far so good.
 
It considers ART being used in three circumstances:
Where the surrogate carries an embryo developed from:
(1) the intended parents’ eggs and sperm; or
(2) the intended parents’ eggs or sperm; or
(3) eggs and sperm not from the intended parents.
 
The Model Act suggests that the prospective parents be interviewed before they avail of the technology in the way adoptive parents would be interviewed so that children’s interests are protected. And while one thinks that there couldn’t be anything wrong with that, just one thing makes the picture a little less rosy than it could be — only prospective parents who do not donate either eggs or sperm would be interviewed.
 
One cannot help but wonder if this is the manifestation of a belief that children who are not “of one’s own blood” are loved less than children who carry one’s own genetic material despite the fact that there exist many parents and adopted children who completely negate this idea. Just as there exist parents and children who are living proof of the fact that some biological parents do not even marginally resemble loving parents.

The Definition of Domestic Violence under the DV Act

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Women are an integral part of Indian society but suffer from the violence in the family which doesn’t seem to be substantially curbed by either education or awareness. In fact, Domestic Violence is one of the few phenomena which seems to have cut across all the cultural, socio-economic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, it seems to increase with a rise in a woman’s education and also prevails among the elite — such as they are.

Before the 2005 Act was passed, there had been attempts by the Government to help protect women (such as by introduction of The Protection from Domestic Violence Bill, 2002 was supposed to do). The Bill was, however, widely criticized as was the one which came before it and was not passed by Parliament.

One of the problems with the Bill was that it didn’t define what Domestic Violence clearly. It spoke of habitually assaulting a woman and no one seemed to know exactly how frequently a woman had to be assaulted for the assault to be habitual.

The 2005 Bill, however, defines domestic violence quite comprehensively. Also, the definition under the Act is not exhaustive.

Under Section 3 of the Domestic Violence Act, 2005, any of several possible perpetrators of domestic violence can be dealt with. These perpetrators are referred to as ‘the respondent’ in the statute and have been defined as any adult male person who is or has been, in a domestic relationship with the aggrieved woman and against whom she has sought any relief under the Act. The perpetrator may be the woman’s husband or a man with whom she shares a relationship in the nature of a marriage.

‘Woman’ means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent and a ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

A ‘child’ means any person below the age of eighteen years and includes any adopted, step or foster child.

Any act, omission or commission or conduct of the respondent constitutes domestic violence if it:

  • harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the woman or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse
  • harasses, harms, injures or endangers the woman with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security
  • has the effect of threatening the woman or any person related to her by any conduct mentioned above
  • otherwise injures or causes harm, whether physical or mental, to the woman.

Explanations

1. ‘Physical Abuse‘ means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or health or impair the health or development of the woman and includes assault, criminal intimidation and criminal force.

2. ‘Sexual Abuse‘ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

3. ‘Verbal and Emotional Abuse‘ includes:

  • insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child
  • repeated threats to cause physical pain to any person in whom the woman is interested.

4. ‘Economic Abuse‘ includes:

  • deprivation of all or any economic or financial resources to which the woman is entitled under any law or custom whether payable under an order of a Court or otherwise or which the woman requires out of necessity including, but not limited to, household necessities for the woman and her children, if any, Stridhan, property, jointly or separately owned by the woman, payment of rental related to the shared household and maintenance
  • disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the woman has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the woman or her children or her Stridhan or any other property jointly or separately held by the woman
  • prohibition or restriction to continued access to resources or facilities which the woman is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

‘Shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the woman and the respondent or owned or tenanted by either of them in respect of which either the woman or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the woman has any right, title or interest in the shared household.

To determine whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under the Act, the overall facts and circumstances of the case shall be taken into consideration.