The Delhi High Court's acquittal of filmmaker Mahmood Farooqui, who was accused of rape by a research scholar, has drawn much flak for its insensitivity towards the complex issue of consent.
The HC reversed a seven-year imprisonment awarded to Farooqui by a session's court in 2016. Although the jury categorically stated that "past conduct will definitely not amount to consent for what happened during the incident—and for every sexual act every time consent is a must," it seems the verdict has been reasonably impacted by the past relationship shared between the accused and the survivor.
A landmark judgment
This is the first judgment that recognises the 2013 amendment to the definition of rape. The amendment includes forced sexual acts other than penile-vaginal penetration within the definition of rape. This has been achieved after a long fight to expand the legal definition of rape.
The 82-page verdict is a must read for every woman and man to understand the legal complications in establishing consent. A court of law is different from our drawing room discussions, where we often pronounce guilt or innocence based on our perceptions. But for the law, all assumptions are based on admissible evidence, where the impact is enormous not just for the parties involved but for future complainants as well. Thus, it becomes even more essential for a court of law to ascertain the truth by viewing the facts through a gender sensitive lens.
Some familiarity with the complex vulnerabilities and trauma of suffering uninvited sexual intrusion would have gone a long way in clearing doubts over consent.
I have never heard the phrase "feeble no". I have just known "no" and "yes."
Although I am no authority to pronounce someone guilty and I may not be aware of all legalities, but to me the conclusions drawn in the judgment are bizarre. In all these years, I have never heard the phrase "feeble no". I have just known "no" and "yes". This concept of a "feeble no" introduced in this case is a veritable disaster that will set a dangerous precedence and allow facts to be twisted more easily. It takes a tremendous amount of courage and awareness for any woman to come to terms with sexual abuse, especially by somebody she knows. Raising doubts over a delay in filing an FIR, or the slow response from the survivor, shows lack of sensitisation over crimes against women.
Fact is, in 95% rape cases, the offender is known to the victim. So why is the court calling into question the prior friendship between Farooqui and the survivor? If a "feeble no" becomes equivalent to a yes, then all cases of domestic or sexual abuse involving family members or acquaintances will be perceived as an "invitation." All sexual assaults—on the streets or at home, with a stranger or a known person, with a strong resistance or a weaker one—do not play out the same way. It is obvious that every person will respond differently. It is inhuman to assume how rape survivors should, or ought to, react, whether it's how long they take to report the crime or how forcefully they resist the violation.
Every time women's rights move two steps ahead, there are incidents that take them a step backward.
The verdict comes straight out of a cheap Bollywood saga, which has taught men in our country to take a woman's NO as a yes.
Every time women's rights move two steps ahead, there are incidents that take them a step backward. The recent verdict is a perfect example of prioritising gender sensitisation in our legal framework. Also, this is not something that can be taught in one workshop and magically infused into the system. It is a lifelong process that begins at home. If every man was taught about consent, just like girls are fed with the concept of "honour," there would be fewer perpetrators of crime, and fewer insensitive arguments.
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