Title: Punchihewage Sampath Kumara alias Bindu v Hon. Attorney General
Case number: S.C.APPEAL 16/2021
Decided on: 05/12/2025
Before: A.H.M.D. NAWAZ, J. ACHALA WENGAPPULI, J. ARJUNA OBEYESEKERE, J.
Consent in rape cases – Either she consented or she did not, no middle ground
In a landmark 2025 judgment, the Supreme Court firmly rejected the use of stereotypes and so-called “rape myths” in determining consent in rape cases. The Court cautioned judges against evaluating a complainant’s conduct through preconceived social expectations about how a victim “should” behave.
The Court observed that arguments based on assumptions that a woman would scream, physically resist, run away, or immediately report a sexual assault are rooted in unreliable societal notions rather than legal principles. Such reasoning, the Court warned, risks:
“denying woman’s sexual autonomy and implying that women are in a state of constant consent to sexual activity.”
The judgment emphasized that criminal liability in sexual offence cases must be determined solely on the basis of law and evidence, not on myths or stereotypes about victim behaviour.
Consent has no middle ground: Only Yes or No
Clarifying the legal test for consent, the Supreme Court stressed that when consent is disputed, a court can reach only one of two conclusions: either the complainant consented to the sexual act, or she did not.
There is no legal “middle ground.”
In reaching this conclusion, the Court relied on the influential decision of the Canadian Supreme Court in R v Ewanchuk, which stated:
“The trier of fact may only come to one of two conclusions: the complainant either consented or did not. There is no third option.”
The Supreme Court adopted this principle, making it clear that once a court accepts a complainant’s testimony that she did not consent, the law does not permit judges to infer or search for implied consent merely from her conduct.
A critical dDistinction: Consent is not mere submission
The judgment also reaffirmed a long-established principle in Sri Lankan law: submission does not equal consent.
Quoting with approval the observations of Schneider J. in Kalimuttu (6 C.W.R. 142), the Court reiterated:
“Consent is not mere submission. There can be no consent where there is no proper knowledge of the nature of the act. Consent cannot be implied unless the conscious mind had considered the nature and consequences of the act and had then submitted to it.”
The Court explained that where there are no spoken or written words, or any other clear form of communication indicating consent, consent may only be implied if it can be shown that the complainant’s conscious mind had understood the nature and consequences of the act and voluntarily agreed to it.
The facts behind the case
The case arose from events that unfolded over the course of a night. The complainant was at home when the accused entered the premises and later engaged her in conversation outside.
According to the complainant’s evidence, the situation escalated when she was threatened and forced into sexual intercourse. The defence, however, argued that aspects of her behaviour before and during the incident suggested implied consent, relying on her movements and lack of physical resistance at certain moments.
The central question before the courts was straightforward but crucial: did the sexual act occur with the complainant’s consent, or without it?
Why the court refused to infer consent from conduct
After reviewing the evidence and the findings of the lower courts, the Supreme Court concluded that the trial court had correctly accepted the complainant’s testimony as credible and reliable.
Once the complainant’s evidence established that she did not consent, the Court held that it was both unnecessary and legally incorrect to search for signs of implied consent in her conduct.
According to the Court, doing so would effectively revive the very stereotypes and misconceptions that modern sexual offence law seeks to eliminate.
A strong message on sexual autonomy and fair trial standards
This judgment represents a significant reaffirmation of two fundamental principles: that consent must be real, voluntary, and conscious, and that courts must not rely on outdated assumptions about how victims of sexual violence are expected to behave.
By rejecting “rape myths” and emphasizing that consent is either present or absent with no room for speculation based on stereotypes the Supreme Court has strengthened the protection of sexual autonomy while reinforcing an evidence-based approach to criminal justice.