Author and About :- Tanishq Gupta Is the student of Rajiv Gandhi National University of Law, Patiala

  1. Introduction to TFGBV and Digital Consent

A fairly noted wonder of technological transformation has been to establish a sense of global ‘interconnectedness’ among people. Multiple studies have demonstrated that digital interpersonal connectivity has had an affirmative impact on a person’s psycho-social development, given how it transcends physical boundaries to establish communication and decrease distance. However, the same wonderous acknowledgement often takes a backseat when digital spaces, platforms and networks are used to facilitate, exacerbate and allow sexual violence against gender and sexual minorities to take place. Technology-Facilitated Gender-Based Violence (“TFGBV”), is a form of “digital violence which may occur online, but can manifest in physical spaces, is committed and amplified through the use of information and communication technologies, and is intended to harm folks based on their sexual or gender identity”.

Sexual violence is an assertion of an individual’s power and control over another person through sexual actions which are unwarranted, non-consensual and harmful. Consent is the primary distinguishing factor which separates sexual activity from sexual assault, and it can be broadly defined as “behaviour indicative of an internal willingness to engage in a particular act”. However, this definition of consent is critically debated within feminist scholarship. The divergent view holds that sexual consent is independent of one’s actual willingness to have sex. This includes instances of intoxicated consent[1], power imbalance or coercion, marital relationship, and the pretext of a false promise[2]. The scope of this research is limited to understanding how can a digital model of obtaining consent be designed in order to curb instances of TFGBV. This model includes a method of applying law + technology approach for designing digital sexual consent in two major instances of computer-mediated sexual experiences – 1. Image-based Sexual Activity and 2. Virtual Reality Haptic Communication.

  1. Computer-Mediated Sexual Experiences: The Good, The Bad and The Ugly

First, sharing of sexually explicit images with consent is a demonstration of one form of digital sexual activity. The perils of digital image sharing involve the underlying problems of extended perpetuity, where a single event can be relived over a period of time beyond the activity, and faster dissemination of such images exacerbates the fear[3]. After a photograph has been clicked and shared, consent which was obtained in the first place cannot be withdrawn.  This lasting risk of unwanted exposure is created if the parties to the activity do not continue to engage in a safe, affirmative relationship with each other. A single act of granting consent, when exposed to digital infinity births a situation of digital sexual harassment. Non-consensual image distribution is often undertaken both after, the consent to viewing the image has been granted, and when the image is obtained non-consensually by the perpetrator. Here, the ability to block or cease contact cannot prevent sexual harassment.

Second, Immersive Virtual Reality (“VR”) Technologies allow user interaction through avatar representations in a digital world. Virtual haptic communications, is defined as ‘a tactile feedback technology that takes advantage of users’ sense of touch by applying force, vibrations, or motion the user”. Such technologies facilitate sexual harassment digitally, for example, touching someone’s virtual representation with a joystick, or groping someone in a virtual digital world[4]. Sexual assault on such platforms have aggravated effects on the victim, due to the ability of this technology to mimic real experiences. Sexual harassment over such platforms can be both non-physical and physical in nature, while the former case account of sexual harassment which happened on Meta’s Horizon Venues can be categorised as manifestly non-physical, the act of self-touching of the perpetrator’s own body and attaining sexual gratification in the witness of others qualifies as coercive physical harassment[5].

  1. Legal Framework to Penalise Online Sexual Violence: Adequacy vs Relevancy

Before discussing the provisions against digital sexual harassment, as contained in the Indian legal framework, it is important to offer a caveat on the viability of the following discourse – the question is not on the adequacy of such a law, but rather the relevancy of it. Provisions present in the Indian Penal Code, 1908 (“IPC”) and Information Technology Act, 2000 (“IT Act”) penalise certain acts of sexual violence. However, there is a lack of empirical data to suggest they’re sufficient in preventing TFGBV. Hence, the approach undertaken in such a scenario would be to present a solution which not only prevents the happening of the event, but also protects the victim in instances where such events might inadvertently take place.

Locating provisions relating to digital image sharing, S. 354C of the IPC[6] penalises the Act of non-consensually capturing and sharing private images of a woman. The explanation to the provision states that consent to capturing of the image, and not sharing does not function as an umbrella consent and such dissemination can be constituted as an offence under this section. When read with S. 66E of the IT Act[7], which criminalises the act of capturing, disseminating and publishing pictures of ‘private area’ of a person, a very narrow definition of ‘sexually explicit activity’ emerges. This definition can preclude acts of digital voyeurism in two instances – a) augmented reality, where there is no medium to ensure that affirmative consent has been obtained before capturing the image, and b) images or videotapes recorded where the private area of a woman is not visible yet some form of sexual activity is taking place.

Locating provisions relating to VR sexual harassment, S. 354A of the IPC[8] penalises the act of making physical contact and advances which involve unwelcome and explicit sexual overtures, constituted as sexual harassment. The inclusion of physical contact excludes instances of assault in virtual reality platforms, as per a strict interpretation of the provision.

Intents and advances criminalised under the aforementioned provisions, not only exclude cases of assault in virtual reality platforms, but also offer to interpret the act of ‘giving consent’ as the basis of adjudging an advance as ‘unwelcome’.

  1. Designing and Locating Digital Consent Mechanism as a Preventive Tool: Integrating the Law + Technology Approach

The popular literary demand is to call for overhauling of the legal framework to include provisions for criminalising manifest forms of sexual harassment in evolving technological avenues, the author, however, offers to include technology itself as a preventive tool to shield the victim in such scenarios. To effectively eliminate an adverse, traumatic experience on the victim, technology should be integrated as a supplementary medium to facilitate consent in the digital world.

In order to design a viable sexual consent technology, it is important to integrate the jurisprudential theories of consent within the system – 1. Consent should be flexible, and 2. Consent should be affirmative.

The first design should be created by discarding a ‘check-box’ model of consent, where consent is given as a one-time permission, and does not include the option of withdrawal at the behest of the individual, or does not indicate taking permission for individual sexual acts. The law + technology approach in this case would be to design the application in such a manner, that consent can be continuous. For example, while recording an audio on WhatsApp, one has to continuously press the record button until they are satisfied with the audio so recorded. A similar approach can be adopted while sharing media online, so that the flexibility of giving and withdrawing consent can be at the disposal of the person sharing the information.

The second design should be to include the model of affirmative consent in consent exchanging practises. Here, the technology should be designed in such a manner that explicit exchange of consent can be recorded to reduce the chances of misinterpretation and sexual coercion. The law + technology approach in this case would be to employ AI and ML technology within the code that can immediately detect sharing of sexual information and give the option to the individual to opt out of such conversation, or continue such conversation with the disclosure that the application advocates for affirmative consent exchange and it is on the comfort of the individual to cease conversation whenever necessary. For example, in a Direct Message exchange on Instagram, whenever an individual activates the quiet mode, the other party to the conversation receives a top-up notification that the other user may not be notified of the message due to the mode activation. Similar disclaimers can be made available on exchange platforms.

  • Conclusion

In conclusion, technology can often be cornered as an iterative villain that perpetuates sexual violence, but integrating the facets of this very technology can also save the victim from undergoing the trauma that follows such negative experiences. While TFGBV has been present in India ever since digital infrastructure has become easily accessible, there is still a lack of engagement at academic, policy and enforcement level that opts to leverage technology to protect the victim from the harm inflicted by the lack of positive consent exchange, sexual coercion and unawareness.

[1] Anand P. Chanar v. State of Maharashtra, 2017 SCC OnLine Bom 187.

[2] Ajeet Singh v. State of Uttar Pradesh and Ors., 2024 SCC OnLine SC 11.

[3] Alexandra Marcotte and Jessica Hille, ‘Sexual Violence and Consent in Digital Age’ in Anastasia Powell, Asher Flynn and Lisa Suguira (eds) The Palgrave Handbook of Gendered Violence and Technology (Palgrave Macmillan 2021).

[4] Soumen Mukherjee and Leslie Ramos Salazar, ‘Scrutinising Sexual Persecution in Digital Communication Through the Field of Haptics’ Gender Violence, Social Media and Online Environments (Routledge 2022)

[5] Ibid

[6] Indian Penal Code 1860, s 354C

[7] Information Technology Act 2000, s 66E

[8] Indian Penal Code 1860, s S 354A

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