Didn’t we have a phrase for this?

Something strange is going on in India. Women are becoming more educated and confident. Pre-marital sex is on the rise – a hotel chain called StayUncle offers rooms for an hour or two to couples seeking somewhere to have sex. But at the same time, so are the number of women alleging rape on false promise of marriage.

According to the National Crime Records Bureau, a total of 38,947 rape cases were reported in India in 2016. In 10,068 cases – about a quarter – the women claimed it was rape on false promise of marriage. In Andhra Pradesh state, 45% of all rape cases filed in the past two years fell into the false marriage category.

That’s “breach of promise” rather than rape, isn’t it?

Us worrying about it all being rather before my time so if anyone knows how it did used to work?

Even more troubling is that the notion of sex constituting rape if a man “reneges” on a promise of marriage is not in the penal code. It has evolved on a case-by-case basis as a result of judges choosing to interpret the notion of “consent” in this fashion. As a consequence, men can be charged with rape if they falsely obtain consent for sex by promising to marry a woman and then changing their mind.

How different from our own current system where the bird can simply allege rape if she just didn’t like the experience very much.

The rest of the piece is actually rather remarkable. It’s, for The Guardian – actually, for anywhere – an entirely reasonable discussion of the subject of rape. I don’t mean that everyone’s got to agree with what’s happening etc, but the reporting is pretty straight. There’s a problem here, this is what it is. Men aren’t the ogres, why the women are making false allegations is explained. And something must be done other than just believing the complainant.

Guess you can only talk reasonably about such subjects when they’re occurring in another country.

20 comments on “Didn’t we have a phrase for this?

  1. As often in the Guardian it is what not written that’s interesting. An article on sexual infidelity in a modernising, but still medieval, social culture and nothing about caste or honour killings. In a culture where female virginity still has a monetary and social value, a woman who has, however naively, bartered something of value for a broken promise or at least a misunderstanding of intention, may well seek recompense and revenge. Additionally, the accusation of rape may be all that keeps her alive, especially if the paramour is of a lower caste. Nevertheless, an illuminating article on the stresses in a modernising society.

  2. Well, she could always demand a down-payment, non-reimbursable in case he doesn’t respect the agreement.

    That would probably be a back-door to legalising prostitution, which might be a step too far. Though it wouldn’t be too different to the (alleged) Muslim ‘pleasure’ marriages.

  3. Kevin,

    Surely in those enlightened districts of peace, where “honour” killing happens, the last thing a raped woman would do would be to admit to having been raped?

  4. I thought the original “breach of promise” had serious consequences for the girl.
    She could marry of course, but no man of her class would have her. She would marry below her station.
    The suit for breach restored the financial loss.
    But happy to be corrected, if I am wrong.

  5. BiG. I did say that it was a modernising society. India is coming to terms with it’s rape culture. there have been several high-profile cases which have had the effect of making India come to terms with the in-built misogyny within its culture, Anabling women to come forward and get the rapist into court is part of that modernising,

  6. Its an odd thing , the Guardian has some excellent moderate voices, Jonathan Freedland Rafael Behr Matthew D’Anconna ..all good pepes but on the subject of wimmin they go bonkers No-one is allowed to say anything except “Yes dear”
    The policing of fem rights stuff on CIF is astonishingly po faced and, one snigger and you are banned .
    I can`t really work out why.

  7. The end of breach of promise cases coincided with the rise of the custom of giving engagement rings, in the US and possibly elsewhere.

  8. “Glaswegian McNally, then 17, lured the London schoolgirl into three sex sessions, promising her they would get married and have children.” that’s Justine McNally (not a prospective husband)

    To see if Tim’s point holds true I thought i’d see what the G had to say about these promises made in the UK. without the distraction of a man being involved. Strangely the guardian does not have an archived article about it. Only an article reviewing a play inspired by the case.

  9. The case of Shaw v Shaw (Queen’s Bench 1959) illustrates some of the surprising complexities such as whether the promise was made in good faith, timeliness, frustration of contract, etc.

    The laws on Breach of Promise in England and Wales were reviewed by the Law Commision in 1969 and updated thereafter.

    The Law Commission – Breach of Promise of Marriage

    In the late 19th century, several Bills were introduced by Private Members in the House of Commons, seeking to abolish the action for breach of promise, but they did not become law. The subject was examined by the English Law Commission, which published its Report, entitled Breach of Promise of Marriage, in 1969.
    The Law Commission considered that the present law gives opportunity for claims of a “gold-digging” nature. (This is the reason why legal aid was never made available for such actions.) The Commission also referred to the argument that

    “the stability of marriages is so important to society that the law should not countenance rights of action the threat of which may push people into marriages which they would not otherwise undertake”.

    The Commission, whilst conceding that this threat might not be a major factor in practice, stated:

    “[I]f, as we believe, it is important that parties should be free to terminate an engagement, then it can hardly be thought desirable to retain the contractual effects of an agreement to marry”.

    The Commission examined five proposals for reform that had been canvassed.

    The first was to abolish the action and provide no new remedy. This was rejected on the ground that it would result in injustices in regard to property questions.

    The second was to retain the action but to limit it to the recovery of special damages. This was rejected on account, inter alia, of the difficulty of defining “special” damages so as to exclude compensation for such matters as loss of prospects of marriage.

    The third proposal was to abolish the action and to create a new procedure for adjustment of gains and losses limited to those transactions that would not have taken place had no marriage been in contemplation, if the nature and size of the transaction resulting in gain or loss were “reasonable in all the circumstances”.

    The general aim of the Court should be, so far as possible, to restore the parties to the position they would have been in had they not become engaged, except where a party had made an overall gain, in which case the gain should be shared. The adjustment scheme should be subject to a general provision that it should not apply where it would be inequitable. In this regard the English Commission considered that

    “although the mere withdrawal from an engagement should not be regarded as a ‘fault’ and penalised, it might be inequitable in some circumstances to overlook the conduct of one party”.

    The Commission had earlier suggested that the adjustment scheme should apply in all cases where an intended marriage failed to take place, such as where the engagement was terminated by mutual agreement or where one of the parties died.

    The Commission in its Report rejected the adjustment scheme for four reasons:

    A. It would involve accounting difficulties unless prolonged enquiries into the parties’ expenditure were made.

    B. The introduction of such a scheme would actually “be using a very large hammer to crack a very small nut”. Even if community of property were to be proposed later by the Law Commission for married persons, it would be inappropriate and unacceptable to impose it upon engaged couples.

    C. The scheme “might well bring into court more cases than at present”, the concept of fairness being so vague. Since acrimony surrounded some terminations of engagements, it would be better for the law to provide “a reasonably certain basis on which the parties may be advised what arrangements are open to them”.

    D. Public opinion might oppose such a detailed examination of private affairs.

    The fourth proposal considered by the English Law Commission was a modification of the third, namely, to replace the action for breach of promise by a system of adjustment of losses only. It rejected this proposal for substantially the same reasons as it rejected the third proposal.

    The fifth proposal was to abolish the action for breach of promise, replacing it by a procedure for settling property disputes between the parties. This proposal was accepted by the Commission.

    The Commission stated:
    “The special relationship between engaged couples may lead them to enter into informal transactions concerning the acquisition or improvement of property, whether owned or purchased by one party or by both, and whether intended for their common use cr otherwise. Such transactions will often be very similar in nature to those between married persons. There is a strong case for applying the same principles of law to disputes between ex-fiancés as those which apply to disputes between husband and wife”.

    The Commission accordingly recommended that the procedure under section 17 of the Married Women’s Property Act 1882* for resolving property disputes between spouses should be extended to engaged couples.

    The Commission referred to its recommendation in regard to spouses that where one spouse contributed money or money’s worth to the improvement of the other’s property (or the property of them both) and the contribution was of a substantial nature, he or she could (subject to their agreeing otherwise) acquire a beneficial interest in the property. It considered that this recommendation – which was implemented by section 37 of the Matrimonial Proceedings and Property Act 1970– should apply equally to engaged couples; and this is now provided for in section 2 of the English Law Reform (Miscellaneous Provisions) Act 1970.

  10. “The Commission referred to its recommendation in regard to spouses that where one spouse contributed money or money’s worth to the improvement of the other’s property (or the property of them both) and the contribution was of a substantial nature, he or she could (subject to their agreeing otherwise) acquire a beneficial interest in the property.”

    Brexit ‘divorce’ bill?

  11. “That’s “breach of promise” rather than rape, isn’t it?”

    It depends on your definitions. ‘Conditional consent’ is only consent if the condition is met. Like a conditional promise to do X is only a promise to do X when the condition is met.

  12. This is different to the old Wodehousian breach of promise cases. They gave compensation for the loss of the marriage but it wasn’t rape, but it still caught him if he just changed his mind.

    This Indian fraudulent promise rape is a fairly new legal development. It’s different from the old breach of promise because it’s rape, but also because the definition is much narrower – the promise must be proved to have been dishonest, i.e. he never meant to marry her right from the start (before they first had sex). That’s difficult to prove in most cases.

    The man changing his mind and not marrying the woman could have been a breach of promise, but it’s not fraudulent so still not rape, even in India.

    It’s a development of the Common Law – not one we’ve followed in England and one that creates huge evidential problems, but it’s a legitimate development. Consent can already be negated by fraud, so obtaining sex by fraud can be rape in England, but the types of fraud it applies to are very limited.

    There are some English cases where fraud has negated consent – a woman who pretended to be a man in order to persuade a girl to have sex with her (on several occasions, which is quite impressive fraud) – others where he pretended to be someone else (including, in one case, her husband) – an Australian case where he persuaded the woman that they were actually married (they’d just gone to the registry office together and filled in the form to post banns, but she didn’t speak English so believed him when he said it was a marriage). The Indian courts have just added another category of fraud.

  13. NiV, it’s not conditional consent, because he doesn’t actually need to marry her afterwards if he changes his mind. It’s about fraud – whether the promise was genuine – did he mean it at the time he said it.

  14. If he says “I promise I will marry you if you first have sex with me” then that’s a conditional promise. Suppose she refuses to have sex, but insists he “promised to marry her” – he can say “No, I didn’t promise to marry you. I only promised to marry you *IF* you had sex with me, and you didn’t have sex, so I didn’t promise to marry.” But if she has sex and he then changes his mind about marrying, that’s breach of promise.

    But if he only asks for sex and she says “I consent to have sex with you *IF* you marry me afterwards” then that’s only conditional consent. If you’re going to marry her afterwards, then the consent’s good. If you’re not, or you’re not sure, or you want to be able to change your mind, then it doesn’t count as consent. She HASN’T consented to what you wanted – string-free sex. She’s only consented to the combination: sex-AND-marriage. So if you have sex but don’t marry her, it’s rape – carrying out a sexual act for which you don’t have consent. Since he’s not actually promised anything it’s not a breach of promise on his part. He’s just gone ahead with the sex part of the sex-AND-marriage act agreed to, as if he had her consent.

    If she can prove that that was the form of consent she gave, like by getting it in writing, and you don’t feel you can guarantee marriage, then you have to treat it as her saying “No”. It’s the whole deal or nothing at all.

    It’s potentially an interesting tactic, on her part. But it clearly only works if you explain the legal implications of the precise wording to the boyfriend first.

  15. NiV, very interesting, but that’s not what’s going on in India.

    Conditional consent is a new concept in English law, it didn’t exist in the common law that India inherited on independence, and the Indian courts are not importing it.

    What the Indian courts are doing is expanding a different concept, of consent being negated by consent. Hence, as I said, it only works if the man had no intention of marrying her at the time.

    Also your definition of conditional consent in English law is wrong anyway. The courts won’t just accept any condition as being relevant – the conditions they accept as being strong enough to negate consent, and so turn consensual sex into rape, are very limited and rare.

    In particular, in English law the only conditions that are accepted as being relevant are those that apply only while the sex is actually happening. The main case on conditional consent is Assange (consent conditional on using a condom), and there’s a subsequent case that accepted consent being conditional on withdrawal before ejaculation. But conditions that would need to take place after the sex has finished are not accepted as negating consent (e.g. a case where a man had sex with a prostitute, promising to pay her afterwards, but didn’t – it was held that this did not negate consent).

    There’s no way that the English courts would accept that a promise of subsequent marriage was a sufficient condition to negate consent, and nor do the Indian courts. Just because it is a condition doesn’t mean that the courts will accept it as a sufficient condition for its failure to legally negate consent.

  16. Apologies; in my third paragraph above, “consent being negated by consent” should be “consent being negated by fraud”.

  17. “What the Indian courts are doing is expanding a different concept, of consent being negated by consent.”

    What they’re doing is applying section 90 of the Indian Penal Code regarding the definition of ‘consent’.

    90. Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

    Consent obtained by deception isn’t consent. The question the Indian courts are struggling with is whether a promise of marriage being false, or a belief that they are going to marry being false, constitutes a misconception of fact.

    It’s a fact that a promise was made. If the man intends to break the promise when the woman believes he intends to honour it, that’s a misconception of fact. If the man intended at the time to honour it and later finds he cannot, or changes his mind, then at the time the promise was as genuine as the woman believed, and so was not a misconception of fact. But if the woman doesn’t just believe that the man *intends* to, but that the man *will* marry her, and won’t change his mind, and the man knows it, then that is a misconception of fact. Although given that intelligent women know how the world works and that circumstances can change, it may be difficult to persuade the court that she truly believed so. There are shades of grey.

    However, I was proposing something slightly different. I wasn’t arguing that the consent had been obtained by deception, I was suggesting that the consent was not to having sex, but only to the compound act of sex-and-marriage. I’m not saying she consented to sex but the consent wasn’t valid. I’m saying that the act she consented to wasn’t the act that the man carried out. Sex-without-marriage is not the same thing as sex-and-marriage. They are different acts. And if the man performs a sexual act on her she didn’t consent to, even if it turns out the act she consented to would have been impossible, even if she only finds out later, then that’s rape.

    Of course, there’s also the mens rea requirement, which might get him off. But if the man knew that he couldn’t guarantee marriage but went ahead anyway (and intelligent men know how the world works, too), then it’s arguable that he knew it *might* be rape but recklessly went ahead anyway.

    Ultimately, the courts will make a decision one way or the other. And then either women will stop having sex-before-marriage on the basis of promises they know cannot be enforced, or men will stop having sex-before-dumping-her knowing that it constitutes rape. If you want sex-without-strings, have sex-without-strings. Don’t have sex-with-strings-that-might-or-might-not-be-firmly-attached.

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