Reading Gaslighting Induced Sexual Acts as Rape – Capacity to Consent

By: VEDANTHA SAI

Vedantha Sai is a fifth year undergraduate student reading Law at The National University of Advanced Legal Studies (NUALS), Kochi, India. He possesses a keen interest in Public International Law, Human Rights, International Criminal Law and Constitutional Law.


Introduction

‘Gaslighting’ is defined as, “the action of manipulating someone by psychological means into accepting a false depiction of reality or doubting their own sanity.”[1] In gaslighting, the complexity of consent is magnified. It is necessary to ascertain whether the nature of the relationship between the survivor and the abuser vis-a-vis the survivor’ state of mind vitiates the otherwise prima-facie consent and result in rape? For instance, if one verbally consents under false pretenses in a gaslighting situation, is this true consent? The trouble arises when gaslighting is employed as a psychological maneuver to make (potential) sexual partners partake in sexual acts which they would not have consented to absent the gaslighting.

Gaslighting undermines individual autonomy, which inherently prevents the individual from giving consent. Any consent supposedly given is void ab initio. In relationships, wherein gaslighting leads to sexual acts or intercourse, such acts are non-consensual and amount to sexual assault or rape. Survivors of such gaslighting, therefore, should be entitled to full legal protections and remedies.

The dangerous consequence is that, at the time of engaging in these sexual acts, the survivors themselves, because they have been deceived by the perpetrator, believe that his/her consent is free and legitimate. However, it is only later that they realize that they have been gaslit and have suffered an attack on their autonomy and mistakenly ‘consented’ to certain sexual acts. Are those sexual acts, engaged in whilst being gaslit, consensual or coerced?

The otherwise de-facto consensual sexual act could be converted into a crime of sexual assault, upon the consent being deemed as coerced; hence, vitiated. This psychological maneuver of gaslighting, as employed by the victimizer, blurs the line of consent that resides in the grey area between consensual sexual intercourse and sexual assault.

Cause for Concern – Stakeholder Analysis

Gaslighting-induced sexual relations is highly worrisome for numerous reasons. First, perpetrators believe this to be a ‘workaround’ to evade any allegations of sexual assault by applying gaslighting techniques which would make sexual acts prima-facie appear as consensual. Second, Courts are also likely to be of the view that it was consensual and consent cannot be withdrawn retrospectively. Third, society at large would not view these acts as amounting to rape or sexual assault, as the traditional requirements for sexual assault as laid down by rape culture narrative, such as resistance and saying ‘no’ by the victim, and use of force by the perpetrator, are absent. Lastly and crucially, the key stakeholder in this disputation, the victim, who is placed at a similar level of torment and anguish as any other rape victim, is left remedy-less, despite having far worse mental trauma as in this case it was inflicted by someone who was in a position of trust, such as a romantic or sexual partner and further they would self-blame and self-loathe for having given ‘consent.’

 

Gaslighting an Attack on Autonomy – Vitiates Consent

The distinctive feature of gaslighting is that it always undermines a survivor’s self-trust in his/her epistemic capacities, such as perception, memory, and knowledge and constitutes an assault on the victim’s reality and undermines his/her autonomy. Gaslighting’s apparatus for effectuating the same, are diverse and plentiful and aimed at removing and/or obscuring the survivor’s opportunities for learning about his/her true reality.[2] Thus, any alleged consent that is received at this point of time wherein, the survivor was doubting his/her sanity and did not have a clear comprehension of reality, could certainly not be conceived as one which was unequivocal and voluntary. Therefore, it is argued that any consent provided by the survivor for gaslighting induced sexual acts, cannot be true-free consent and therefore, these acts are non-consensual and would amount to rape.

The question of post-factum revoking of consent does not arise; as per the theory of vices du consentement, defective consent is vitiated in initio.[3] Thus, it is to be understood, that ‘consent’ was never given in initio.

Recent jurisprudence requires such reading

Recently, various jurisdictions, including Australia and Canada, have criminalized Non-Consensual Condom Removal, otherwise colloquially known as stealthing and holding it to amount to rape.[4] To read gaslighting induced sexual acts as non-consensual is consistent with this growing jurisprudence which recognizes the utmost importance of the woman’s dignity, sexual autonomy and consent.

Conclusion

The abuse faced by such survivors cannot be discounted simply because the circumstances of that assault are unique in gaslighting cases. Gaslighting, by undermining autonomy, vitiates consent ab-initio. Thereby, any sexual relations which are resultant products of such emotionally perverse and conniving psychological maneuvers, must be held as sexual assault and the employers of the same ought to be held accountable and justly punished. Survivors of gaslighting deserve the legal protections afforded to other survivors of sexual assault.


[1] This article uses the colloquial term for gaslighting and does not advance it as a formal psychological diagnosis or concept. Gaslighting, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/255554.

[2] Natascha Rietdjik, (You Drive Me) Crazy: How Gaslighting Undermines Autonomy (Master’s Thesis), Utrecht University, (June 22, 2018), file:///Users/quentinl8/Downloads/RMA%20Thesis%20Natascha%20Rietdijk.pdf.

[3] George A. Bermann and Etienne Picard, Introduction to French Law, (2008), https://books.google.co.in/books?id=2ULv4NzlAFEC&pg=PA213&lpg=PA213&dq=vices+du+consentement++Introduction+to+French+Law&source=bl&ots=JRP2aaYbMn&sig=ACfU3U0W3NdON5glXtP4MLCCf6Gl3C9muA&hl=en&sa=X&ved=2ahUKEwjJ_tjpwNHnAhXLyDgGHbUbBG4Q6AEwAXoECAgQAQ#v=onepage&q=vices%20du%20consentement%20%20Introduction%20to%20French%20Law&f=false.

[4] Matthew Robinson, Police officer found guilty of condom ‘stealthing’ in landmark trial, CNN (December 10, 2018), https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html; Alexander Lean, Drawing the Line: Deception and Sexual Consent, Journal of International and Public Affairs, https://www.jipasg.org/posts/2019/4/27/the-politics-of-controlling-labour-in-singapore-continuities-and-fissures-in-migrant-and-citizen-labour-governance; Brianna Chesser, Case in Victoria could set new legal precedent for stealthing, or condom removal during sex, The Conversation (August 16, 2019), https://theconversation.com/case-in-victoria-could-set-new-legal-precedent-for-stealthing-or-removing-condom-during-sex-118343; Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses To Nonconsensual Condom Removal, Columbia Journal of Gender and Law (2017), https://academiccommons.columbia.edu/doi/10.7916/D8708D06.

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