The Delhi High Court’s regressive ruling on consent is a setback for women’s rights
The Delhi High Court ruling, acquitting Peepli live director Mahmood Farooqui of a rape charge on the ground that the complainant's “feeble no” could be construed as a “yes” given their prior shared relationship, is a serious setback to women's rights, gender justice and rape laws. It is all the more damaging because the sexist ruling concerns a case where both parties come from an educated and privileged elite and are “intellectually proficient,” according to the court. By thrusting the entire responsibility of a sexual violation on the woman's hazy or lack of communication, it has allowed the abuser to run free with an easy conscience. Worse, the ruling has set a precedent that will be referenced, interpreted or misinterpreted in a myriad ways to benefit the perceived offender. It will compel traumatised and lesser aware survivors into not reporting any transgression or sexual violence whatsoever. Worst, the court has given more weightage to assumption rather than actual proof. The ruling came in the wake of Farooqui appealing against the conviction by a lower court in 2016 that held him guilty of raping a US citizen, a Columbia University student. The court seemed to rely on past history of sexual reciprocity and familiarity between the two and assumed that an exchange of kisses would logically move to the next step and the lady in question, in the tradition of Victorian coyness, was actually leading the man on with her “no.” Did not the court know that women — even when they are with men known to them or with whom they may share a relationship — are in charge of their own comfort levels of intimacy and may kiss but not want a full blown sexual consummationIJ Or in this case oral sexIJ A no is a no, feeble, hesitant or strong. Pinned down by a physically stronger and overpowering male aggressor, what other mode of communication does the court expect from the victimIJ Is she in a position to flail her limbs or kick her desperationIJ In this case, the woman researcher, traumatised as she was and having been aware of the brutalisation of Nirbhaya, admitted to faking an orgasm to avoid further atrocities by her aggressor. Rape survivors are so disoriented that they take days to recover and gather courage to speak out in the first place. By diluting consent in this ruling, the court has made the woman's trauma irrelevant, put a brake on a survivor's right to seek justice and perpetuated the chauvinist mindset that a woman complainant must have done something wrong. Now transpose this on the rural context and imagine the implication. Or consider its impact on marital rape which is still considered a societal aberration.
Perhaps, we might recall the Bombay High Court ruling which had said if a woman consents to a sexual relationship when intoxicated, it would not be valid under Section 375 of the Indian Penal Code. The court had considered “without a woman's consent” as having a wider meaning.