Podcast with Mini Saxena on Conditional Consent – Law School Policy Review

Rachana   0:07
Consent is often discussed in binary terms as given or not given. But there’s this huge area of conditional consent which complicates this understanding, and it raises important legal and ethical questions. What happens when, say, consent is given, but under specific conditions such as the use of contraception or a promise of marriage or even personal identity disclosure? In this episode we speak with Mini Saxena, whose research delves into the legal treatment, the cultural perceptions, as well as justice implications of conditional consent.
She’s done this by drawing on both US case law as well as ethnographic field work in India. Miss Saxena’s work highlights the inconsistencies in legal responses and the lived experiences of those navigating conditional consent violations.

Ayishath   1:01
Mini Saxena is an academic who is currently pursuing her PhD in the School of Oriental and African Studies, London. Her work focuses on the intersections of gender and the law, including areas such as feminist legal theory, sex equality and gender identity, sexual orientation and the law.
This conversation will explore the jurisprudence on conditional consent, its real world implications and the role of legal and non-legal remedies. We will also discuss how concepts of justice, sexual agency and consent vary across legal systems, cultures, and individual experiences. We are completely honored to have you in our podcast.

Mini Saxena   1:46
Thank you for having me. Yeah, happy to be here and hopefully contribute something.
Just a couple of very quick clarifications. So my university is just called SOAS now, unfortunately or, fortunately, because the word oriental of course has certain implications. So we’ve sort of gotten rid of that, so we don’t actually have a full form of the abbreviation. And my research draws on ethnography in India, but also UK case law.
So less US, but more case law in the UK, but other jurisdictions as well.

Rachana   2:55
OK, perfect.
So just to start us off and lay some groundwork for the discussion.
So the first question we want to ask you is, what exactly is conditional consent?
We generally sort of restrict it to the examples of promises to marry or stealthing. What are some other scenarios that fall under this umbrella of conditional consent?

Mini Saxena   3:15
Yeah, sure.
I think, to start with, the first important thing to say is that conditional consent is terminology that’s being used basically sort of only in England and Wales law and specifically in the UK, and that is because there’s been quite a large number of cases that have come before courts here in the last five or ten years, which means that even though it is terminology that is not very widely used, it is something that everyone is quite aware of, and hopefully that becomes clear with some of the examples that I’ll be giving you shortly.
The terminology also doesn’t actually get used in cases or by judges. It’s more used by academics. I think one of the first uses of it was done by the Crown Prosecution Service: the Crown Prosecution Service is a body in the UK that kind of makes decisions on what to prosecute and what not to prosecute in conjunction with the police. The police is the kind of evidence collecting body and the CPS then kind of assesses that evidence before anything ever goes to court. And so the CPS for a long time has had guidance, and you can look this up online, on conditional consent. So they have a whole web page on conditional consent, which gets amended once every so often.
The way that I explain it, and I’ve been doing this for about a year because I did field work on this, is that there are three broad categories that fall within conditional consent.
The first and potentially easiest to explain category is when there is an explicit condition, so something like stealthing would fall within that. The idea that you have a conversation with your sexual partner or partners about something or the other, some aspect of the physical intimacy – and I say physical intimacy very deliberately, because this is not just limited to sexual intercourse- and that aspect then gets breached.
So stealthing of course is when condom usage is negotiated and a male partner takes off their condom without telling their other partner or partners either midway through the sexual relations or beforehand. But essentially that condition gets breached.
It also happens the other way around, which is usually called contraceptive sabotage. So the idea that a woman might lie about taking oral contraception later on, so she says she would but then she doesn’t.
There are also other explicit conditions. There was a case in the UK where a husband and wife negotiated consent to sex on the condition that he wouldn’t ejaculate inside her. And he then did. There is a longer history to that case as well, but I won’t go into that right now.
The second category is promises, so classic examples are promises to marry, especially in the Indian context. But it could also include any other kind of promise. It could include a promise, and of course, there is some overlap with the first category. So as I said, a promise not to ejaculate inside a woman. It could include bigger promises, a promise to buy someone a house, or a car, for example. A promise of payment, as in the context of sex work.

And then the last category, which is the sort of broadest and trickiest category, is the category of deception or implicit conditions. So the idea that you represent yourself as having a particular occupation or a particular – even caste, religion in the Indian context, gender identity – any kind of representation that is made and then that representation turns out to be false. Again, there’s been a case in the UK where someone said that they had had a vasectomy when they actually hadn’t, and there was a pregnancy as a result of that, which did lead to abortion in that particular case.
But it could, you know, be representations about marital status, relationship status, disability, as I said, gender identity. Really anything.
So those are the broad kinds of things that fall within the ambit of conditional consent.

Ayishath   7:21
Right. So in your work, you have adopted a doctrinal approach to conditional consent in the UK, and you have carried out ethnographic work in Delhi as well.
So why has conditional consent been a focus mainly in academic discussions and not in the broader legal discourse? Did you find that people outside academia understood and experienced conditional consent differently than legal scholars?

Mini Saxena   7:49
That is an excellent question.
I think there are probably multiple answers to that question. I think conditional consent is something a lot of us probably have experienced. I would even maybe go so far as to say all of us probably have experienced in some iteration or another.
I haven’t done ethnography in the UK. I’ve only done ethnography in India, and specifically only in New Delhi. But the way that it gets talked about, I think, is how consent is complex. So the idea that consent is not a yes or no, it’s not binary. There are gray areas. There are situations where it’s messy, complex. You know, muddy. So when I talk to people about this and I give the example of stealthing for instance, or even the example of someone lying about something or the other, the response I often get is, of course, that happens all the time. It’s happened with me. It’s happened with friends.
But people wouldn’t necessarily use the terminology of conditional consent for it.
I think there are two reasons for that. One is that in terms of lived experience, it’s broadly very well known that consent is not the yes or no that the law makes it out to be. I think that’s not really even a question. And so people find it – the people I have spoken to at least – find it very easy to say, “Yeah, of course. You know, it is complex and these things happen.” And they describe it as kind of one of the things that happens in life because consent is not necessarily a yes or no question.
The other reason, I think, is because for those of us who delve into the law, and I use that phrasing very intentionally because I’m trying to capture a broad swathe of people, whether that’s academics, judges, lawyers – anyone who really has anything to do with the law – we really like compartmentalizing things because the law compartmentalizes things. So for people who deal with the law, it’s very easy to say, “Look, there’s this bunch of situations which we’re now calling X, and now let’s think about how to deal with X from a legal perspective.” without thinking too much about what is X, what does X mean for everything else, what are the implications of X,  what are the implications of conditional consent for sex more generally, physical intimacy more generally, relationships, gender. We tend to think divorced of those things and in boxes because it’s easier to think in boxes and because the law thinks in boxes. The whole point of the law is to compartmentalize so that it can make rules about the compartments.
So it’s a lot easier to give something a name and then think about how to legally address it without thinking about, well, how does it actually play out in real life?
So that’s probably why that divorce exists.

Rachana   10:48
Yeah, I think that really put it into context to think about the discipline of the law and to then understand that lived experiences don’t match up like case reports in such a very pedantic, sort of doctrinal approach.
Just to move further about like the specific findings that you had throughout your studies, right? You studied both the UK judiciary and how its approached conditional consent and you’ve identified some inconsistencies in your review of case law.
In terms of how different instances of this stealthing, this whole entire umbrella of differences, instances are treated differently, right?
So why do some conditions like, say, deception about gender identity, vitiate consent in UK courts while others like stealthing and condom use, they’re treated differently in terms of, to use your words, legal consequences, who can be a survivor, and what instances of breach is considered major versus minor.

Mini Saxena   11:49
Yeah, it’s a really interesting question.
And that’s kind of why I have decided to spend 4 years of my life looking into this.
The case law in the UK has been really interesting, especially over the last 10 years.
I mean, there’s been older case law as well, but especially over the last 10 or so years, I would say.
So there is a line of cases that in my head at least, I categorize as pregnancy/contraception, and that’s where I put in stealthing, and also the ejaculation case I talked about earlier, and then also the vasectomy case I talked about earlier, which is the most recent case that we have in England and Wales on conditional consent, it was a 2020 case, although having said that, someone was recently charged, or rather sentenced for stealthing in Scotland.
That limited line of cases to me are quite similar to each other, because essentially we’re talking about a few common themes – Use of contraception, protection against pregnancy, protection against STIs.
Having said that, stealthing and the ejaculation case were both held to vitiate consent and so they were both held to be to be sexual assault. The details of the cases are a little complicated, so I’m not going to use the word rape because that wouldn’t be accurate, but they were both held to be sexual assault.
The 2020 case, on the other hand, was held to not be sexual assault, which was the one where someone lied about having had a vasectomy. And to me, that’s very interesting because if you think about it from the perspective of the survivor, and if I remember correctly, the survivor in all three cases were women, and in the stealthing case, I think multiple women, the considerations are pretty similar.
The considerations are protection from pregnancy and protection from STIs. So why the same sort of situations are being treated differently judicially, I think is an interesting question. The reason why the vasectomy case was held to not be sexual assault is because the judgment if you read it says that the deception, that is the deception about having had a vasectomy, was not sufficiently closely connected to the act of sex. So the judges essentially said that the lie is not closely connected enough to the sex itself.
But I think what is closely connected to sex and what is not closely connected to sex, are very interesting questions, and I think they’re very individual questions, right? Because for me, I might be very worried about whether you have had a vasectomy or whether you’re wearing a condom. But I might not be all that worried about the gender identity of the person that I choose to have physical intimacy with, for example.
And so that brings me to these other cases, right? So we have a whole line of cases on deception as to gender identity in the UK, although granted, most of those cases have been in lower courts and in the UK, lower court cases are often unpublished, so we don’t necessarily have the judgments. We have some sentencing remarks here and there, but uniformly those cases have held consent to be vitiated, and for it to be sexual assault.
And across the sentencing remarks and the judgments, you’ll see judges saying things like this was cruel and deliberate and wicked and a preplanned, premeditated deception. You know, just painting the defendants in really almost evil terms. And the defendants, by and large, are young people, teenagers who are thinking through their own gender identity and maybe are confused or maybe are, you know, at a stage where they’re exploring things.
And they often have been sentenced to very high periods, very long periods rather, of sentencing, of imprisonment. And again, so McNally, which is the only deception as to gender identity case that is a higher court case where we do have a judgment. In that judgment, the judge says, well, of course it’s a question of common sense – and I’m quoting directly here – a question of common sense that a sexual encounter with someone who is a man is different from a sexual encounter with someone who is a woman, or rather, I think, the judge said, it’s a question of common sense that the gender identity changes the very nature of the act.
But is it a question of common sense? So I think the reason we run into difficulties here, there are many reasons we are under difficulties here, but for me the foremost reason is that what we take into account when we consent or not consent to physical intimacy is very different for each of us, and that difference is not something law is very good at handling because the law is all about uniformity and making rules for swathes of people. 

Just very briefly, before I finish, there was another case which was about a policeman undercover. And again, there’s a long history behind this case. But the policeman was undercover and he underwent a very long term sexual and emotional relationship with a woman. And only after 19 years or something, he told her that he’s actually an undercover police officer and he was initially pretending to be a trade unionist and environmental activist, and so on. So she filed a case, and the court again said it was a sort of preliminary stage of the trial. But the court essentially said this also does not vitiate consent and it’s not sexual assault, because deception as to occupation again, is not sufficiently closely connected to the act of sexual intercourse.
Again, I would question that. So I think the reason why a lot of these judgments are being made is because they are made on normative bases. Normative meaning judges are making decisions about what matters for sex and what doesn’t matter for sex. And according to judges, what matters for sex is the gender identity of the person you’re with. But what doesn’t matter is their occupation, who they really are, their political beliefs, whether they’ve had a vasectomy, for example, those things don’t matter. Now,
I would disagree with a lot of that, and I think a lot of people would disagree with a lot of that, which is perhaps why these inconsistencies arise.

Ayishath   18:05
I found that very interesting because obviously what matters and what doesn’t matter when you consider conditional consent should ideally depend on the people who are engaging in the act and not the judges per se.
So it’s honestly kind of disturbing to think about. So my next question would be, are there legal precedents outside of the UK that you believe offer a more coherent framework for addressing conditional consent?

Mini Saxena   18:49
Great question. The short answer is, probably not. There are other precedents.
There’s been some cases in the US. There’s been cases on stealthing in some parts of Europe – so Switzerland, Germany, although there are some issues there because the judgments aren’t necessarily in English. Canada has also addressed stealthing and in fact, in Canada, in the Supreme Court, there was also a case about a woman having, if I remember correctly, a woman having poked holes in the condom of her male partner.
And then there’s also some case law from Australia. Australia is a bit different because of their legal structure and they had a separate offense called procurement – procurement of consent, so that was seen as separate from sexual assault. This was also a result of colonialism, actually. And then there was also a case in Israel which got a lot of international attention because it was about a man – well, the reported facts were that a man lied about being Jewish when he was in fact Muslim and Arab. And he also lied about being single and interested in a serious relationship when he was in fact married. 

Again, those facts are a little complicated because it was a plea bargain and so actually instead of rape by deception, it seems like it was actually violent sex but the defendant accepted a plea of rape by deception as part of the plea bargain. So again, a lot is happening there.

Do any of these form a coherent framework for conditional consent? Probably not. And I wonder if that’s because it probably may not be possible to have a coherent framework for conditional consent because how can the law address something which is so diverse? And I think this gets to one of the roots of the problem which is the public-private divide, I suppose. 

We are asking public law to address a very private matter. And is it a private matter? I don’t know the answer to that myself. One might think of these questions of sex as very private, but in some ways they are also very public. If we were to take the example of the case in Israel and if we were to take the facts on their face, you have a woman who is aggrieved because someone lied about their nationality and their religion, and so perhaps her grievance should be addressed by the law and even criminal law because what is the law for if not to address grievances? On the other hand, if the law were to address her grievance it would be reinforcing the stigma against Muslims and Arabs. It would be reinforcing already very entrenched nationalist and religious divides which have their own long histories. And so the question is, should the law do what it ought to do or should the law do what it is already doing? So should the law reinforce and re-entrench these nationalist and religious divides? Or should the law actually work at addressing someone’s very private grievance but a private grievance that has very public implications? So it is a very difficult question. I’ll leave it there. 

Rachana P : 

I think this gives us a good segue to move towards your empirical work from the Global South in Delhi, India, specifically. Because, like you said, conditional consent is so context-specific and diverse and obviously has a lot of cultural meanings associated with the nature of sex acts, and the nature of consent also play into a lot of these considerations. Just to move to your research that takes on a decolonial approach in moving to the Global South, just to lay down the foundations of what this work was. What kind of empirical studies did you conduct for your research? You had also mentioned that you had some findings that you had not expected initially. If they are two separate questions, you can take turns to answer them.

Mini Saxena: 

There is some empirical work on conditional consent, there’s not a lot. There was a study done in the US, but I don’t think it was across the country. I think it was a specific state or geographical area. It spoke to women specifically about stealthing. It came about a while ago, maybe 2017. And that was very interesting because part of the questions there were about how these women might conceptualize stealthing as a violation, and many women talked about it being more in the nature of a breach of contract. So not necessarily breach of contract in a legal sense, but in their heads, they conceptualized it more as a breach of an agreement rather than the classic violation which sexual assault is supposed to address although there is some overlap there – the classic violation that sexual assault laws are supposed to address is sexual autonomy.

So what I had decided to do was, firstly, look at not just stealthing but any and all conditions including conditions that may not have come before courts ever at all. I also decided to do this work in Delhi largely because conditional consent, as has been clear from our conversation so far, really only gets addressed in the Global North. So obviously, you have England and Wales where a lot of these conversations are happening, and then some cases in other jurisdictions, all of which are Global North jurisdictions. And I was curious about how it might play out in a totally different setting, in a totally different scenario. And that is why I chose Delhi.

I was initially planning to work across a few other states in India also, but thanks to some excellent supervisors, I was told to not be quite so ambitious, because there is only so much that an individual PhD researcher can do in the course of one year of field work. So I limited myself to Delhi, which I think was a really interesting experience. And, again, classic legal anthropology takes place often inside courtrooms and, I think, now, there’s even a running joke in Delhi that there’s more ethnographers in the courtroom than lawyers. But I didn’t want to do that for the simple reason that these cases don’t actually get to court. Not many of them, anyway. 

So, in India, of course we have promise to marry. I’m assuming your listeners are familiar, but just to very quickly provide an overview, promise to marry is a line of precedent which says that if a woman consents to sexual intercourse based on a promise of marriage from a man, and if that promise is false from the start, then that sexual intercourse is deemed to be rape. And so that is a kind of conditional consent in the sense that she is consenting based on that promise of marriage. 

The other manifestation of conditional consent under Indian law is something that you will find in the statute itself, although I will have to check if this continues to be in the BNS, because the BNS is, of course, relatively new, and I am less familiar with it. But there is a provision on impersonation of the husband. So someone impersonates a woman’s husband and has sex with the woman, that is deemed to be rape. Again, there is a long history behind this provision that are interlinked with colonialism as well. Those are the two ways that conditional consent plays out in the courts. I was less interested in those ways, although I have done some work on promise to marry as part of my ethnographic work. I was more interested in what happens outside the courts, and why these things are not getting to court. 

What I did was, I spoke with a few different constituencies. I spoke with academics, I spoke with lawyers who might be working on these sorts of cases, again from both sides, or, my attempt at least was to speak to lawyers from both sides. The conversation with lawyers tended to focus on promise to marry, simply because that was the only iteration that actually finds its way to court, and I found the lawyers I spoke with very reluctant to speculate on anything else, because I suppose by their very nature lawyers are a bit hesitant to speculate because they only want to say what they’re absolutely sure of.
Apart from them, apart from these two constituencies, I also spoke with individuals. So my initial plan was to try and speak to people who have actually faced breaches of conditional consent. That plan backfired a little bit, simply because no one talks about conditional consent in those terms, as we were saying at the beginning of this episode.
So what I did instead is, I just started speaking to as many individuals as I possibly could. I started by speaking to someone who I know has faced stealthing in her own life because she’s a theater artist and she was commissioned to produce a play about her own experience of stealthing a few years ago, and that’s kind of how my journey also started, because we were friends at the time and she took me on as a legal consultant because she needed to speak to someone about what the law actually is on this.
And then kind of snowballed from her speak to other people. Again, I was planning to only speak to women and queer people, but I did get access to speak to some men as well, and I thought that was quite interesting, so I included them in the work as well.
I also spoke with civil society organizations and community based organizations who broadly work on sexual and gender based violence, and then also with some of the populations that they work with. And then lastly, I did some focus group discussions at universities because I wanted to speak with younger people among whom these conversations are happening in part because they are a little more online, they have access to social media. #Metoo has happened not that long ago.
Largely, it was undergraduates, so I did focus group discussions with undergraduates at universities across Delhi. I initially did also want to speak with sex workers, but for various reasons I eventually ended up carving them out of the study, although I’m hoping to maybe pick that up at a later date.
Yeah. So I spoke to all these different constituencies and the plan was to find out firstly, what is the harm of these kinds of situations and whether any of that harm is legally relevant. And secondly, what does justice mean to the people I’m speaking with for these sorts of situations?

Ayishath   30:17
Expanding on your research in India, how do you think the cultural factors in India influenced how people experience breaches of conditional consent compared to Western legal frameworks?

Mini Saxena   30:35
Yeah, that’s a really interesting question. There is, I think, a lot to say there.
I think socioeconomic, sociocultural contexts affect everything, and I personally think it would be false to say that they affect things more in the global south than they do in the global north. I think they affect things everywhere.
I have, as I say, I haven’t done ethnographic work in the global North so I don’t know but I would think that they affect things everywhere. It’s simply that the norms are different. But certainly there was a lot of that that I saw in my ethnographic work. One of the easiest examples to give here is the example of marriage. And it’s very interesting because all of my life, I’ve been trying to work on sex and this ghost of marriage keeps hounding me because, actually, I keep wanting to separate the two because I think it’s worth thinking about sex without thinking about marriage. But it seems almost impossible to do that in the Indian context.
I’m not saying that everyone spoke about marriage necessarily. I think what’s happened has been very interesting because we don’t think about marriage as much now, especially some of the younger people I spoke with. And I say younger because I am personally much older than a lot of the undergraduates I spoke with.
So it wasn’t necessarily that they were speaking about marriage, but I think what’s replaced marriage is a very similar kind of structure. So the idea that any physical intimacy that you engage in is more legitimate the closer it is to a marriage-like relationship and is less legitimate the farther it is from a marriage-like relationship.
So a lot of people I spoke to spoke a lot about being deceived as to their partner’s marital status, their partner’s relationship status – You know, women would often say, “He didn’t tell me that he was married” or “He didn’t tell me that he was seeing another person/other people.”
Inevitably, a lot of the people perpetrating the deception were men. I’m not saying all of them were men, but a lot of them were men. And those were the deceptions that mattered a lot to my interlocutors – the people I spoke with. These other deceptions around stealthing or lying about other things seem to matter less for some reason, which to me was very interesting because I would have thought that if you asked someone to wear a condom and they don’t wear a condom that would be, to me at least, very serious, because it means I could get pregnant.
I identify as a cis woman, so it means I could get pregnant, it means I could get an STI, et cetera. But for a lot of people I spoke to, it was these other very sort of emotional deceptions that mattered that were more to do with emotion and that had a lot to do with, like the potential longevity of whatever relationship they happened to find themselves in at that time. 

So, to me, it kind of feels like we aren’t necessarily, again, it might vary between constituencies and cities, but for a lot of the younger people I spoke to, it seems to me that we are no longer in a situation where we think of  marriage as a legitimate site for sexual relations. But we are still in a situation where we think sexual relations are more legitimate if they are long-term, monogamous – if they look like marriage. 

To be very clear, I am not saying that deceptions as to marital status or relationship status shouldn’t matter, or are fine, I am not saying that at all. I think those are also very morally wrongful and hurt the person who was deceived. They wrong that person. But it’s interesting to me why they hurt more than the others. So this kind of privileging of a marriage-like relationship, I think, is very interesting. And you can see that also a lot in the promise to marry discourse. 

Because everyone I spoke to about promise to marry said that the reason why these promise to marry cases are being instituted is because a relationship happens for, let’s say, a number of months or a number of years. It’s a serious relationship – obviously, how long a serious relationship lasts differs from person to person – but the common element is that it is a serious relationship for everyone, or at least the women involved. It then breaks up for whatever reason and the woman is very hurt and very aggrieved and so she goes on and files or wants to file a promise to marry suit. 

Now, I am not in favor of the promise to marry provision personally, I actually don’t know if I am in favor of it or against it because that’s a whole other tricky question but this is clearly not the way it was intended to be used because it was only intended to be used when the promise was false from the very start. And as soon as you get into any long-term relationship in a cultural context like India, you start saying things like ‘Of course, we’ll get married, of course we are serious about each other, of course it is a long-term commitment, etc.’ So of course, more often than not, there will be a promise of marriage somewhere there because that is just how people talk. Was that promise false from the start? If it wasn’t, did something change for that promise not to be fulfilled? And if that promise was not fulfilled, what do you do with the hurt that you are left with? What do you do with the feeling of being wronged that you are left with? Is it the right thing to then approach the criminal law for something like that, when, more often than not, what you want is not necessarily for that person to go to prison but simply for that person to come back and be in a relationship with you. 

And that’s not something the criminal law can deliver, unfortunately. That’s not something law can deliver at all, and so one of my interlocutors, I remember saying to me, “The law cannot school people to become better human beings.” But we seem to want to keep doing that. Especially the criminal law, which is such a blunt tool. So I think the primary way socioeconomic and sociocultural norms came to bear in all of my field work is this privileging of long-term monogamous marriage-like relationships. The longer it is, the better it is, the more successful and legitimate it is. And any deceptions that stand in the way of that are the worst ones. 

Rachana   38:14
I think that’s very interesting because that segues perfectly into the next question that we had for you about how people perceive these breaches of conditional consent. And I remember, something that really stood out to me from our initial call was about what justice looks like to different people who are at the receiving end of such a breach. What role does, specifically, criminal law play in regulating such situations? Should the legal response be punitive, civil or restorative? Or perhaps should some people at the receiving end prefer to move to a space outside the law altogether? Yeah, I think that’s exactly what we wanted to move to in our next question.

Mini Saxena   38:42
Yeah, I thought that was a really interesting part of my work. From what I remember, I don’t think a single person said to me that they wanted that person to go to prison. I don’t think anyone said that. Yeah, not even for a short time. It was really interesting, because when I asked the question of “Do you think there should be a legal remedy for these sorts of situations, every person said yes. Not a single person said no.
So everyone wants some law, not necessarily criminal law, but some law. And I think again, there is an interesting history there of the levels of legal consciousness that we have in India. And that again has a lot to do with just the way that the law has played out since our independence and the way that we tend to go running towards the law for any social problems. You know, if you think of rape law reform, or queer rights, we always think of the law as the solution, and we don’t really think of anything else, perhaps because it is easier as well to think of. It’s a very tangible change to say consensual same sex acts have now been decriminalized. That’s a very real thing to hold onto.
But in terms of outcomes, not a single person wanted imprisonment. A lot of people did want financial redress and I think that obviously, that depends a lot on the survivor’s own position that they come from, economic position they come from. What they think they could do with that monetary compensation, for example. And there’s a lot of people for whom it would be very useful.
So a lot of people did say to me, “I feel like this was a violation or I feel like this was some sort of breach or I feel wronged or that this was wrongful and I want money for it.” And I think that’s very interesting. 

We squirm a little bit when we think of anything to do with money, and if we put money and sex in the same sentence, there’s a lot of squirming and – squeamishness, I think is the word that I was looking for. So as soon as those two things get close together, we get very awkward about anything like that.
But I think it’s a very legitimate ask. I think if you feel violated and if you want financial redress, then I don’t see why that’s a problem. So quite a few people said that. And in fact, one of the lawyers I spoke to was very interesting because she talked a little bit about how in her practice, she does try and find solutions under civil law for a lot of these sorts of things.
So again, from what I remember, she talked about a case where someone had lied about being queer. They were not, in fact, queer. And so she kind of does this very imaginative thing where she, or rather their practice. They send legal notices. They talk about, you know, potentially what kind of legal action can be taken. But they also think about restoration orders, compensation orders, things like that. So that was quite interesting.
That was the only instance I found of legal solutions and monetary compensation solutions actually being explored in this arena. But there were certainly a lot of people who said yes, this is what I would want.
There was actually one particular group of students who talked about money and then said “Oh, but you know, if the person who did this to me doesn’t have the ability to pay, what then? And then should we make the state pay for these kinds of violations? And that kind of brings you to that larger point of what is the public duty. Is it a private duty to redress these kinds of violations, or is it a public duty? And if it’s a public duty, then is there a larger public duty for sex education, therapy, and so on, right?
So that was quite interesting, but there was only one group that said that and I thought that was so thoughtful because no one else really mentioned that consideration. Apart from that, there were a lot of people who wanted nothing to do with the law, right?
So a lot of people said I want this person to go to therapy or to somehow or the other get an understanding of what they did, you know, and acknowledge it. And then say sorry to me. I think a lot of people’s trauma or, maybe trauma is a bigger word, but a lot of the issue is that these things are done without any understanding of why it’s a violation or a breach.
So a lot of people wanted the person to understand what the problem actually was, because often these things are not talked about. Even the theater artist I was talking about earlier, when it actually happened with, and again, if you go to see her play, which was showing a few years ago, but she does repeats every so often.
What actually happened is that after it happened, she was the one who said sorry the next morning, as if somehow she was at fault. Because we are so socialized as women to not inconvenience men in any way, right? Because I think the next day there was a conversation around, “Ok, I need to go and buy the oral contraceptive pill because of course, you didn’t use a condom, so there’s a risk of pregnancy. Sorry, emergency contraception is what I meant.
And I think she felt maybe vulnerable going alone because of course, this is Delhi and going alone to buy an IPL can be scary. So I think she maybe wanted him to come along. Again, I’m trying to remember the details from a few years ago. And she apologized for that inconvenience, even though she was the one who had been violated the night before. And I wouldn’t say violated because this is her experience, not mine. So I don’t want to put words in her mouth. But we don’t talk about these things. And so for a lot of people, it was like I want that person to understand what they did and to and to acknowledge it and maybe to apologize to me. And then there was a whole other last category of people who actually wanted nothing to do with the perpetrator. For them, their healing was about:
I want to be able to talk about this. I want people to understand me. I want people to understand my experience and what I went through. I want to not be misunderstood.
I want to not be shamed for what happened to me, I want acknowledgement that I was not at fault. That this was someone else.
And so it was about community and finding your tribe and healing in that way, rather than healing having anything to do with the perpetrator, for lack of a better word.
So I think justice also looks very different for different people.
One of my interlocutors, I remember saying so clearly, she said to me, “Justice is the feeling. You will know it when you see it, like love.”
And so she was kind of like, “I wanna feel that. And I don’t think I’ll feel that just because that person goes to prison.”

Rachana   46:13
Yeah, I think that was very interesting for me to hear because it stuck out to me since our first call and that was something I was very excited to get to.
So I’m glad we spoke about it. So just to pick up on the themes of perhaps the coloniality of law, the kind of boxed-in thinking that you’re forced to do when you’re thinking in terms of the law, right? You do mention this in your work that dealing with language both in terms of translation and the literal language of the law was a bit of a challenge. Could you maybe elaborate on how the coloniality of the legal language shaped the discourse on consent, and you’ve just highlighted how it sort of falls through in so many important ways. But yeah, if you could just reflect specifically on the coloniality of legal language.

Mini Saxena   47:03
Yeah, sure. Again, a really broad question.
I think at a much broader level, I suppose that what talking in legal terms does is that it forces people to think in legal terms. And again I’m using these very broad terms intentionally because I say ‘talking in legal terms’. I don’t even mean talking about the law or talking law. I just mean talking in legal terms. So one example is – To describe my research, I always say sexual misconduct. I don’t say sexual violence. I don’t say sexual assault. Because I feel like sexual misconduct is a much broader ambit of what may or may not be encompassed under that.
So, for example, one of my findings in the field was about being stared at. And this came through in some interviews, but it also came through, and I, again, won’t speak in detail about this because there’s again a lot there, but it also just came through in my own kind of bodily experiences in the field. Like, how do you exist as a woman in Delhi on the street? In the metro? You are constantly being looked at, right?
And that is also non consensual because you didn’t ask to be looked at, you didn’t give permission for people to look at you, but no one conceives of that as sexual assault or sexual violence.
And maybe it’s sexual. Sometimes, it’s about caste or class. Sometimes it’s about gender. Sometimes it’s about sex. Sometimes it’s about a weird combination of some of those things.
But it is nonconsensual, right? So it is in some ways a breach of your boundaries. I’m not necessarily saying that that means there should be legal recourse for it, but
all I’m saying is that it is non consensual.
So when we use words like consent or sexual violence or conditional consent or even words like heterosexual, homosexual, bisexual, etcetera, etcetera. All of these words
create binaries, right? Or create categories, compartments. You either consented or you didn’t. You either are a victim or survivor of sexual misconduct, or you’re not. You are either heterosexual or one of the other LGBTQIA plus categories.
You are as a person defined by your sexuality, by your potential experiences of sexual misconduct, by your gender identity, etc. And I really wonder how useful that is, right? And I think a lot of this is colonial because obviously a lot draws from in, well common law or English law, but even at a more conceptual way. Like if we think of sexuality, for example.
And this is why I always use the word queer and I don’t like using LGBTQIA plus kind of terminology because again, I think it puts people in boxes, whereas I think the word queer is a lot more fluid. But just the idea of sexuality being who you are as a person versus sexuality being what you do. And the law has forced us to identify as heterosexual, homosexual, gay, lesbian, bisexual. Because once we have those identities, we can then go run to the law and say give us these rights – the same rights as the heterosexuals. And again, I’m not belittling that struggle. I want the same rights as the heterosexuals.
But it forces you to think of yourself in those terms as opposed to thinking of sexuality as things you do. And if you think back to, again, some of this is not necessarily part of my doctoral research, but it comes from some of my previous work.
There is this great book called Sexualness. If I remember correctly, it’s written by an author called Akshay Khanna. I think, if I’m not wrong. It talks about how pre-coloniality, sexuality was simply something you did other than who you were.
I think colonialism has been responsible for a lot of binaries, for a lot of, sort of categories and the law is also, and I’m not saying colonialism and law always go hand in hand, we know very well that there is a post colonial afterlife of things like the sedition law, which we are seeing play out in front of our very eyes currently.
But the law also compartmentalizes, makes things uniform. And as soon as you compartmentalize and categorize and binarize you marginalize other identities – things that fall outside of those boxes, things that fall outside of that imagination, people that fall through those cracks, subjectivities, identities, intimacies that are not conceived of in those categories.
And when it comes to field work, I don’t know how to resolve that. Because when I ask a question, I have to use certain language, and that language presuppose a certain answer, presupposes a certain common shared understanding.
So by the time I came to, at the end of my field work, I started saying, you know what, I’m having a conversation about consent and about how consent is complex. So I just put it in very general terms, but even the word consent is a bit of an import, right? It’s not necessarily something we came up with. It’s not an indigenous conception.
Again, I’m not saying it’s a colonial conception, but it’s not an indigenous conception.
Or like thinking about indigenous translations of queer – thinking about indigenous translations of love. There’s a lot that we have about, like this distinction between friendship and sexual or romantic love is again a very sort of outside concept.
There’s a lot of tradition in India about the fact that these distinctions are blurred and that there is a chosen family. There’s a shared family. There is parenting among many people, for example.
So when you are importing many concepts that are traditionally English or England, Wales or colonial, and trying to think about how those concepts live in anywhere in the global South, language, I think will always be an issue at a broader level, but also at the level of, you know you speak in Hindi to your interlocutors and they say all these things. And then what do you put in the transcript?
I was looking at one transcript today where one of the people I spoke to said Mohabbat, Ishq and Ayashi and she distinguished between all those three.
Now what do I do about that in English? I don’t know. But the point she was making was like these three are all very different. And she also told me how they’re all very different, but I don’t have direct translations for these in English.

Ayishath   54:40
That is very interesting to hear, especially when you said that when you compartmentalize with language, you’re marginalizing other identities. I found that very interesting. 

Now before I move on to the next question, I sincerely want to thank you for this podcast. I found it so engaging, so interesting. Especially when you said that women are so socialized to not inconvenience men in any way. It got me thinking about sexual agency. So when you were conducting your research, your empirical research, what did you think about the whole scenario of sexual agency or sexual independence of the woman or gender minorities, especially when we’re considering legal discourse around consent as a whole, not even conditional consent, sexual agency is not fully discussed. So what did you think when you were interacting with these people?

Mini Saxena   55:40
Yeah, I was actually literally just writing about this today.
There’s a scholar in the UK who says that actually we should replace the consent standard, and we should instead think about whether a particular person in a particular instance has the freedom to communicate and negotiate consent. So, a freedom to communicate standard rather than a consent standard. So not just did you consent, but also even if you ostensibly consented, did you do it in an environment where you were actually free to say the opposite, right?
And if we go back to that ejaculation case, the history that I was talking about was that it was a husband and wife who had been married for some more than 20 years, very long term relationship. And it was a chronically abusive marriage. So even on the particular night where this conditional consent violation, I don’t know if it was night, but on that particular time when this conditional consent violation happened, it was preceded by a whole exchange where the husband kept saying ‘I want to have sex with you’, the wife kept saying no, so he kept persisting.
And then eventually she gave in and said fine, but as long as you don’t ejaculate inside me. And this is what I mean about the about the law’s inclination to compartmentalize because as soon as that case came to court, the only thing they looked at was the condition.
They didn’t look at the previous persistence, the kind of chronic abuse, any of that.
They didn’t factor that in. They just looked at this one thing and said, well, OK, this is a violation, so it’s fine. So we’ll say this is sexual assault. 

So some of this is about time. How much time does the law take into account? Some of this is about emotion and the complete incapability of the law to take into account emotional hurt or like an emotional investment in something or the other.
But just coming back to sexual agency, the reason I mentioned the freedom to communicate and negotiate standard, I think, is because, I’m not necessarily saying I agree with that particular scholar, but I do wonder if it would be a more useful standard, especially in a sociocultural context like, again, I would say Delhi because I haven’t done work in any other city.
So it’s interesting because I spoke to a lot of women who are, let’s say, I would say maybe in their 40s or 50s. And at that time you are now starting to have negotiations around consent. So you are starting to ask the people that you have sexual encounters with, “Are we gonna use a condom?” “Will you use a condom?” “Will I use contraception?” “Are you in a relationship with someone else?” “How will we do this?” “What will we do?” “Are we having sex?” “Are we having oral sex?” “Are we having anal sex?” “Are we having penetrative sex?” “Where do we stop?” “What are you comfortable with?” “What am I comfortable with?”
These are difficult conversations to have. I recognize that. And I also recognize the fact that no one taught us how to have these conversations, which is a very sad state of affairs. But only at this around this age, and a lot of the women I spoke to put this down to MeToo, and the kind of conversation that happened after MeToo, and the fact that people are not talking about this, but only now are these conversations starting to happen. And even then, they often don’t happen.
Sometimes the parameters of the physical encounter will be negotiated but the parameters of the emotional encounter will not be. So the idea that, “I’ll talk with you about what we’re gonna do tonight, but I’m not gonna talk with you about what you might do with someone else tomorrow. Because I don’t want to find out that you’re seeing someone else.” So this fear of, and I think a lot of that lies in, you know.
There’s a lot in common with the younger women I spoke to. Because the younger women I spoke to, woman after woman said to me, “Oh, you know, sometimes women say yes because they want to keep the relationship or they want to not piss off  the guy or they want to,” as I was saying earlier, “not inconvenience the man.”
And again, I’m not saying any of these are illegitimate reasons to consent. Not at all. I think everyone has very different reasons to consent. But I think there is something missing there which is about what is it that the women desire? Do they actually desire that physical intimacy at that time? And are they saying yes because they want it? Or are they saying yes for some other reasons?
So with the older women, these conversations are starting to be had. But again, there are routine deceptions around marital status, relationship status, you know.
No one is asking the question of, “Is there someone else in this world right now who thinks that they are in a monogamous relationship with you?”
I think that’s a great question to ask, right? Because if someone else thinks that, then it’s worth having that conversation. Even if you didn’t necessarily lead them to believe that.
With younger women, the conversations are just not happening. Often because they have come to Delhi for university. It’s a new environment. They feel pressured into being friends with men, being in relationships with men, and then often they feel pressured into that relationship lasting because as I said earlier, the longer the relationship, the more legitimate it is.
There is a lot of emotional involvement on the part of young women leading to pretty severe mental health consequences when the relationship inevitably does breakdown, as it often does. And the sexual encounters are just not being negotiated. When there is no skill for that conversation, the conversation doesn’t happen.
And when the conversation doesn’t happen, inevitably, the desires of the man gets precedence, because the man is seen as the initiator. And once the desires of the man get precedence, there’s not a lot that can be done because that skill has not been entrenched. So a lot of this is down to not having those emotional skills, not having that comprehensive sexuality education. Not knowing how to engage with each other in a way that is – not knowing how to engage with each other, period. Not just in a sexual way or a romantic way, but even in a platonic way.
And so, because those conversations aren’t happening, consent is not being negotiated, and inevitably the desires of the man are given into, because the woman wants that. She’s kind of trading physical intimacy for emotional investment, right?
And so, yeah, I think sexual agency is missing. But I think sexual agency is missing because there is a much deeper rot that starts a lot earlier.
And I think that’s not something the law can do much about.

Rachana   1:03:08
Yeah, I think this has given me quite a lot to think about and like specifically, it really makes me wonder about those group of people who kind of deny how textured and varied consent can be to begin with and they think consent itself is so complicated to handle that like, oh, every single time we have to navigate this with like every single encounter with every person but irrespective of the fact that they’re in a relationship, so on and so forth, it makes me wonder, if you sort of introduce the idea of conditional consent to then say like it’s not just overall consent that matters, it’s conditional specific parameters under which you consent.
It makes me wonder what people are inclined to respond to that, and especially the naysayers. In the same line, if you have some thoughts on that, I would love to hear it.
And also specifically moving towards the last question that we have for you today is what do you hope people take away from these conversations and the idea of conditional consent and yeah, essentially what do you hope people take away from your work?

Mini Saxena   1:04:26
Yeah, I think the two questions are very interlinked. I feel like the work I’m doing is actually kind of dangerous because we are still in a place where the basics of consent are not. I was going to say the basics of consent are not understood. That’s not actually true. I think it’s very easy to understand consent, but the basics of consent are not adhered to, if that makes sense. So we are still in a situation where overt sexual misconduct, and what I mean by overt sexual misconduct is simply sexual misconduct that is either physically violent or coercive.
Those things are still rampant, right?
So we still need to figure that out. We need to figure out how to address that. And here I am talking about conditional consent and how consent has many shades and it’s gray and it’s complex and it just it can very easily give fodder to people who say, oh, but it’s so hard to understand consent, right?
But that’s not my message, obviously. Yeah, I am scared about doing this work because I am also questioning consent, but I’m not doing it in the same way as a lot of other people are doing it. And I am also saying, oh, maybe that’s not a fit for purpose framework. Maybe that’s not a great standard. Maybe we should think about other things. But I am not doing it to undermine sexual autonomy, and I think a lot of people do it to undermine sexual autonomy, right? A lot of people say consent is hard to understand and then use that as an excuse to undermine sexual autonomy in the same way people use non-monogamy as an excuse for cheating without actually understanding what non monogamy is, right? So I think it’s very important to make those distinctions. But it’s difficult work. It’s work that requires nuance.
And I guess it’s linked to what I want to do with my work and what I want people to take away from this, which is that, I think fundamentally, these are complex questions.
And when I say complex, I don’t mean hard to address. I just mean complicated.
So I want everyone to talk about this. I want people to address these questions. I want people to have dialogue on this. But it requires nuance. It requires good faith, which I think is something we really lack in these conversations. We don’t engage with each other on a good faith basis and in general, I think our culture doesn’t engage on a good faith basis, just very generally. So it requires good faith. It requires nuance. And these are all things that the law cannot handle. The law is very bad at handling nuance. The law is very bad at handling emotion. The law is very bad at handling any kind of lack of clarity. The law always wants clarity. The law always wants uniformity, categories. And we don’t have those right now. And maybe we never will. Because that’s just what life is. Tough luck, right?
And so the law cannot govern all of life. And as I was saying earlier, we run to the law because it’s an easy win. It’s tangible, it’s there, it’s huge, it’s institutional and so on and so forth. And I haven’t even touched on the lobbying political because that’s a whole other thing. So I think the message I want people to take away is to stop –
So one of my interlocutors – I’m just stealing all of my interlocutor’s words.
One of my interlocutors said to me – she works for a restorative justice organization.
Rather, she actually runs a restorative justice organization. And she said to me, we look at sexual violence not through the lens of – so as soon as someone comes to us reporting sexual misconduct, we don’t look at it as a legal wrong or a crime, we look at it as as trauma, and I wonder if that can be useful. So as soon as someone starts talking about sex or consent or physical intimacy, or sexual relations or sexual misconduct, the first thing our mind goes to, and again this is related to high levels of legal consciousness, which have long histories. But the first thing our mind goes to is the law.
And so what I want people to take away from this is – Stop that. Don’t do that, because the law is not useful to these conversations because they are much more complicated.
Let’s engage with each other and think about why sexual violation is so rampant. Why sexual misconduct is the way it is. What makes consent complicated? What makes engaging with each other complicated? How might we do better at these things outside of criminal law’s changes or maybe even outside of civil law changes, outside the law more generally.

Because as soon as we start thinking of these things in legal terms, it’s immediately like, what now? What do we want? What should the result be? What should the punishment be? What does justice mean? Is this wrong? Is it not wrong? Was there consent? Was there not consent?
These are not the right questions to ask. Because there isn’t always a clear and simple answer. And so I really wish that we can divorce the law away from these conversations and think about them outside of the law and think about, you know, what, even if something went really wrong and you feel really violated, what can be done outside the law about that? What can be done at an interpersonal level, right?
What can be done at a Community level rather than a legal or institutional level? Or a state level, I suppose. Outside of the law, outside of the state.
And to engage with each other in good faith on those questions rather than to immediately jump to the law, which can be very blunt and punitive.

Rachana   1:10:46
Yeah, I think that’s quite challenging because right now where we are as law students at law is kind of all consuming and and we’re taught to almost ingrain an instinct to think in terms of the law. And it’s it’s very hard to remember that there’s an underbelly and a shadow to law that is far more encompassing than the law is.
So I think this was this is a very good and very useful, very insightful reminder.
Yeah, Ayishath, if you want to just conclude the podcast.

Ayishath   1:11:19
How do you conclude a podcast?
So this was a conversation with Mini Saxena on conditional consent. A very enlightening conversation at that, gave us a lot to think about.
I sincerely thank Miss Saxena for taking the time to talk to us and give us her – 

Rachana   1:11:47
Years of work in one hour, which we really appreciate.

Ayishath   1:11:48
Valuable insights.
Yeah.

Rachana   1:11:52
Thank you so much.

Ayishath   1:11:53
Thank you so much, Miss Saxena.

Mini Saxena   1:11:54
Thank you for having me.
And yeah, hopefully this is useful and or entertaining to someone out there.
If you want to get in touch, you can just look me up and you will find my e-mail and yeah, I would really welcome any feedback, comments, questions, challenges because I’m still working on my dissertation and I need all the feedback I can get.
But yeah, thank you for asking and thinking of me and having me here and for listening for so long.

Rachana   1:12:26
It was a pleasure.
Thank you so much.
Ayishath   1:12:29
Thank you.
I will stop recording now.