Beyond The Binary: The Psycho-Legal Paradox Of Codifying Consent
- IJLLR Journal
- 1 hour ago
- 1 min read
Shivesh Mishra, B.A. LL.B. (Hons.), Mahindra University, Hyderabad (School of Law)
ABSTRACT
The legal system, in its demand for adjudicative certainty, has reduced consent to a binary proposition: it either exists, or it does not. The transition from the Indian Penal Code (IPC) to the Bharatiya Nyaya Sanhita (BNS) marks a shift in Indian criminal jurisprudence, yet the fundamental legal understanding of sexual consent remains deeply entrenched in a traditional and binary framework. Section 63 of the BNS, like its predecessor, demands a rigid, objective standard of consent, a definitive “yes” or “no” for the sake of judicial efficiency. However, behavioral and forensic psychology view consent as fluid, contextual, deeply subjective, and often ambivalent. This paper critically examines this tension through a psycho-legal lens. It argues that a “perfect” statutory definition of consent is illusory because human sexual decision-making is influenced by power dynamics, trauma responses, intoxication, coercion, and social norms that defy binary classification; the aspiration to achieve a “perfect” binary legal definition of consent is not merely incomplete but structurally impossible. Instead of attempting to rewrite the BNS definition to be perpetually “stricter,” this paper proposes a necessary shift in judicial and evidentiary mechanisms. It advocates departing from strict statutory literalism toward a holistic, behavioral- evidence-based approach that integrates forensic psychological evaluations to accurately assess a victim’s state of mind at the time of the incident, bridging the gap between rigid criminal statutes and the nuanced reality of human trauma.
