“Chilling” and “dangerous” is what women’s rights activists and lawyers in India have called a Delhi High Court judgment that set aside the conviction of a Bollywood filmmaker for rape after the judge ruled that a “feeble no” could indicate willingness on the part of the victim.
They warn that by diluting the meaning of consent, the judgment in the high-profile case rolls back some of the hard-won gains made after the horrific 2012 gang rape of a 23-year-old student in New Delhi, which led India to tighten rape laws.
Mahmood Farooqui was sentenced to seven years imprisonment last year by a lower court on charges of raping an American postgraduate student of Indian origin when she visited his home in Delhi in 2015.
The woman had told the court that he forced himself on to her and ignored her “no”, but after a point she stopped resisting fearing she may be harmed.
Farooqui’s lawyers said there was no evidence that he was alone in his house with her and “if at all” such an incident took place, it was with her consent.
This week, Judge Ashutosh Kumar ruled in Farooqui’s favor saying that it was not clear if the incident happened or whether it took place without her consent.
Several observations in the 82-page judgment have raised angry questions and triggered heated television debates.
It says that in a case where the parties are well educated and known to each other “it would be really difficult to decipher whether little or no resistance and a feeble no was actually a denial of consent.”
The judge holds that "in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no."
What constitutes consent ?
Denouncing the judgment as a “very dangerous one”, Kavita Krishnan of the All India Progressive Women’s Association, said it weakens the legal definition of consent that the women’s movement has struggled hard to get. Lawyers point out that consent has to be unequivocal, voluntary and must not arise from fear.
“Now he is saying that not only is an affirmative consent not required, but even if a woman has actually voiced “no” several times, even that is not good enough. I find this quite appalling,” says Krishnan.
Women rights activists, who have long struggled with deeply-rooted patriarchal attitudes to sex, are also taking exception to the judgement for drawing a distinction between an educated and uneducated person, and those who are in a relationship. They say this would reinforce stereotypes that a rape was usually the woman’s fault and the onus of preventing assault lies on her.
Fears have also been expressed that the judgment will make it harder to win convictions for rape in a country where low conviction rates are already a cause for concern.
“Take a woman who is very educated and very bright, take a woman who as in this case has spoken of kissing the accused before, only kissing, and take a woman like this who is then raped. I think it is chilling that this judgment could be cited as precedent for saying that ‘no’ means ‘yes’,” said Supreme Court lawyer Karuna Nundy, who advised on the reform of sexual assault laws.
More women coming forward
This is not the only order in a rape case that has caused furor. Last week, judges in the Punjab and Haryana High Court granted bail to three law students found guilty of gang rape and blackmail of a fellow student while their appeal is heard.
The woman was blackmailed with her nude photographs by a student with whom she broke up after a month-long consensual relationship. He raped her and also forced her to have sex with his two friends.
The order said the victim had a “promiscuous attitude and a voyeuristic mind," and that her "narrative does not throw up gut wrenching violence that normally precede or accompany such incidents."
The spotlight on sexual violence in recent years has prompted more women to come forward to report rape cases and fast track courts have been established to ensure speedier justice. Besides the Bollywood director, some other high profile personalities, including a prominent editor, have faced rape charges.
But women activists fear that there is an effort to read down the tougher laws in a country where many say that women who wear provocative clothes, drink or stay out late at night are actually providing consent.
“There is an active effort to create a backlash, to say that these laws victimize men and that behavior that ought to be considered normal behavior on part of men is being criminalized by these laws. In other words, it is trying to normalize violence against women,” said Kavita Krishnan.