Evidence of sexual activity itself is not evidence of rape. Determining whether the crime of rape has occurred hinges on the question of whether the activity was consensual.
But proving consent (or the lack of it) is never easy. The law relating to consent itself is not unclear but, like all laws, it is not tailored to individual cases. It is therefore up to courts to interpret it and apply it to specific circumstances.
That is precisely what the Delhi High Court did on Tuesday, when it acquitted writer and Peepli Live co-director Mahmood Farooqui, in a rape 2015 case filed against him by an American research scholar who met him while she was in India.
In arriving at its verdict, the court has made a number of comments that could potentially make it far more difficult for men accused of rape to be convicted. Most striking are the court’s various observations on what qualifies as consent, which could dilute and obfuscate a concept that is already widely misunderstood.
In effect, the court seemingly conveys that a man to whom a woman has said “no” could still believe that he had permission from her to proceed. It nearly says as much in its judgment: “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.”
No is not enough
The High Court judgment adds: “The fact situation with which this Court is faced is like this...The prosecutrix says ‘No’ and gives a push but ultimately goes along...”
Another part of the decision states: “The prosecutrix can of course be called a sterling witness as, by and large, the sequence of events narrated/deposed by her, matches with the evidence of the PW [prosecution witness] 10 and PW 12. But whether the allegation of the prosecutrix that the appellant, without her consent and will, sexually abused her by use of force, is to be believed, is the question which this Court is beset with.” (The term prosecutrix, of course, refers to the woman who made the rape allegations against Farooqui, whom the court refers to as the appellant.)
This selection of quotes from the decision does not convey the nitty-gritty of the case and, short of satisfying the urge for voyeurism, there is probably very little reason anyone beyond those involved in the matter needs to know the details.
What the extracts do indicate, however, is that the prosecutrix said, “No,” and that the Court has recognised that there exist legal standards by which she could conceivably be called a “sterling witness”. Despite this, the man she accused of having raped her has been acquitted.
What is consent?
As a general rule, the legal system believes that someone who does not intend to commit a crime or cannot be proven to have committed the crime beyond all reasonable doubt should not be convicted. Although there are exceptions, the principle that guilt should be incontrovertibly proven for there to be a conviction forms the bedrock of the criminal justice system, as it should.
That said, it is worth considering the laws on which the court has relied in coming to its determination, and the rationale which it has employed. Unlike the facts specific to this one case, these are issues which could affect all of us.
Amongst other factors, the court appears to have believed that even though the woman used the word, “No,” the man could have been under the impression that she had granted consent.
“Consent” is explained in the Indian Penal Code to mean a woman’s “unequivocal voluntary agreement” to participate in a specific sexual act. Her agreement may be verbal or non-verbal, and the mere absence of physical resistance to the act of penetration cannot be deemed to be consent.
Further, consent given under fear or intoxication is not always legally adequate to deflect an accusation of rape.
As such, there is no requirement that consent be verbal. However, there also exists no suggestion whatsoever in the statute that one form of consent be privileged over another, or that where consent is verbally denied, a man rely on non-verbal cues he thinks he discerns to proceed. Non-verbal communication is permissible but the law does not say that it supersedes verbal communication in relation to a woman’s granting or withholding consent.
Of feeble nos
The judgment is extraordinary because on the one hand, it seems to acknowledge egalitarian and progressive lines of thought while, on the other, it fails to follow through on them. For instance, it acknowledges the importance of consent and recognises the possibility that consent can be withdrawn at any time. Nonetheless, it adds: “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’,’” although it clarifies that the no-can-mean-yes theory cannot be extended to cases where the people involved are strangers to each other.
The court attempts to ascribe differences to consent depending on how the people involved are placed in relation to each other and the world, and depending on their gender.
For instance, the judgment implies that consent can be understood differently “...when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.” (Emphasis added)
There’s a lot packed into those lines. The court appears to indicate that there is a different, possibly lower, standard to understand the grant of consent if the people involved are acquainted; this is of particular concern since the vast majority of rapes are committed by someone known to the victim.
It also conflates intellectual and academic proficiency, failing to recognise that the two are not necessarily synonymous and that neither may have any bearing on one’s ability to negotiate consent in the real world. Additionally, it speaks of prior physical contact between the people involved, which should not ideally have any bearing on determining the question of consent in a specific incident.
The understanding of consent expounded by the court is simply not supported by statutory criteria laid down in the legal explanation of what constitutes consent. Instead, it appears to be a superimposition of an old-fashioned and likely patriarchal perspective onto statutory law.
One of the court’s observations seems to buttress this suspicion, even though it recognises that such gender dynamics may not be at play nowadays. The court states: “The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal.”
And, so, what one is left with is a decision which indicates to women that simply saying, “no,” may not be recognised by the law as being the denial of consent in and of itself. To make matters worse, it is not clear what would be certain to constitute the denial of consent in a court’s eyes. And that is a truly terrifying predicament for women who invoke the legal system after having been raped to contend with.
Nandita Saikia is a lawyer in Delhi.