By Manali Joshi
On 25th September 2017, the Delhi High Court acquitted Mahmood Farooqui of raping a Columbia University researcher in 2015, reversing the lower court’s decision. The judgment, which has already attracted widespread criticism, acquitted Farooqui by concluding that three things ‘remain in doubt’—whether the incident as the prosecutrix narrated it took place; if it did take place, whether it was without her consent; and if it was without her consent, whether Farooqui could discern or understand this. The judgement flows from a deeply problematic understanding of consent, and the Court’s reasoning behind its first two conclusions is also inadequate in several respects.
A no means a no
The crux of the judgement is that the element of consent by the prosecutrix was not communicated to Farooqui wherein the paragraph 86 states that “it is not known whether he has been communicated that there was no consent of prosecutrix.” Expression of sexual desires by Farooqui to the prosecutrix is itself admitted by the court as she says “no” and pushes him away. Then the question arises as to how does it conclude to her not communicating or a lack of consent? Thus, a regressive assumption that is continuously used to delegitimize rape, which the court holds based on sadly ingrained logic to substantiate that sometimes “No” means “Yes”, is saddening.
The court came up with different meanings of ‘no’ used under different circumstances, which in itself, was a heinous thing to do. The scenarios to decipher various meanings of “no” are if the parties are strangers or are in a prohibited relationship or if the prosecutrix is conservative and is not exposed to various ways of the world; then a simple no or mere reluctance is enough. However, in acts of passion or actuated by libido, the scenario becomes complicated. Specifically, in the case of Farooqui, it was stated by the court that when persons are known to each other, are persons of letters… intellectually / academically proficient….or had physical contact in the past, the court holds a view that “it would be difficult to decipher whether little or no resistance or a feeble “no” was actually a denial of consent or not.”
As ridiculous as it could get
The justification advanced by the Delhi High Court that sometimes in woman behaviour, “no” means “yes” is based on gender stereotypes. The socialisation of men and women to reciprocate sexual consent differently is on the basis that men are the initiators of sex. However, it immediately discredits this line of thought by saying that “this may not be the situation in today’s world, where equality is the buzzword.” Indian Penal Code ( IPC ) provision on rape explanation (2) S. 375 states that consent is an unequivocal voluntary agreement when a woman, by verbal or non-verbal communication, communicates willingness in a specific sexual act. The court’s argument against this is at odds with this provision. The judgment at various places states that consent must be affirmative, clear and unambiguous, expressed outwardly through mutually understandable words or actions. It is hard to see how saying ‘no” can be clearly, unequivocally construed as actually saying its opposite.
The court suffers no hardship in doing so, at least it seems so. This assertion that ‘no’ can have multiple meaning enables the court to separate the plain words actually said by the prosecutrix from what “has been communicated” to Farooqui. The prosecutrix finally went along and feigned orgasm though she said “no and pushed Farooqui away” is stressed by the court. This is used by the court to conclude that even though the prosecutrix may have faked an orgasm to end her ordeal quickly, what the appellant has been communicated is that “she was okay with it and has participated in the act.” It must be noted again that the court accepted the fact that the prosecutrix said ‘no’ to Farooqui and pushed him away and then her ultimately going along was her being subjected to sex without her consent.
Easy road to injustice
The express provision of IPC is that a woman who does not physically resist the penetration shall not be regarded as consenting by her lack of physical resistance alone. Also, the orgasm that prosecutrix faked was at the end of her forced subjection. Thus the communication that Farooqui received from the faked orgasm does not matter as he had already committed a sexual act without her consent. It is evident that the Court’s argument is erroneous. It is high time for the courts to understand that even if the no said by a woman is feeble it still means a no. The judgment opens up avenues for individuals to get away with rape even when women say they do not consent, subverting the intention of the law. The ‘affirmative model’ and the literal interpretation of ‘yes means yes’ and ‘no means no’ which was rejected by the court is, in fact, precisely what must be adopted.
Featured Image Source: Visual Hunt
Stay updated with all the insights.
Navigate news, 1 email day.
Subscribe to Qrius
