The recent Delhi High Court judgement acquitting Mahmood Farooqui, a well-known writer and film-maker, of rape charges has raised some questions about all the dramatis personae involved, including the judge himself.
Justice Ashutosh Kumar overturned the trial court judgement that had convicted Farooqui of the rape charges and sentenced him to seven years of prison. The filmmaker is now walking free. It is to be seen if the Supreme Court upholds or nullifies the Delhi High Court's interpretation, which that has set off a big debate in the country.
Farooqui's lawyers changed language of discourse from the factual to the philosophical domain—when a "no" actually became a "yes" or when a "feeble no" became an unspoken "invitation to action."
On the face of it, it ought to have been an open-and-shut case. A woman complaining of a sexual encounter without her consent, as per the strict law of today, should have ordinarily sealed the fate of the accused. Indeed, it did so in the trial court. However, a battery of high-profile lawyers, like Kapil Sibal, who appeared for the accused, changed the language of discourse from the factual to the philosophical domain—when a "no" actually became a "yes" or when a "feeble no" became an unspoken "invitation to action." Which other message would travel to a man when the woman signals neither "affirmative consent" nor "positive denial," was the question posed.
The high court ultimately gave the benefit of doubt to the accused on the philosophical interpretation of the sequence of events presented by the complainant herself.
The high court took notice of the email—the first written communication after the alleged forced sexual encounter—that the complainant, an American research scholar, wrote to Farooqui. The incident had happened on 28 March, 2015. The email was dated 30 March.
The woman wrote:
"You know that I consider you a good friend and I respect you, but what happened the other night wasn't right. I know you were in a very difficult space and you are having some issues right now, but Saturday you really went too far. You kept asking me if you could suck me and I knew you were drunk and sad and things were going awful. I knew that this wasn't going to help things and I told you many times I didn't want to. But you did become forceful. I went along, because I did not want things to escalate, but it was not what I wanted. I was just afraid that something bad would happen if I didn't."
She went on to say:
"I completely own my sexually and I consider you a good friend. I like you. I am attracted to you, but it really made me feel bad when this happened... In the end I consented, but it was because of pressure and your own force physically on me. I did not want things to go bad. I have only decided to tell you how I feel for your own well being. I am afraid that if you don't realize that this is unacceptable, you may try this on another woman when you are drunk and she will not be so understanding."
The research scholar's mail to Farooqui was interpreted as affectionate advice rather than a complaint by the lawyers of the accused, ignoring the fact that survivors in some instances may at first not fully grasp the gravity of what has been perpetrated against them. The lawyers representing Farooqui quoted the last paragraph of the same mail, saying it was a giveaway:
"I do love you and wish you well. I want the best for you, whatever that is, but I also need you to know doing what you did the other night is unacceptable. I hope this doesn't affect our friendship, but am willing to deal with the repercussions if it does."
A person who had been violated against her wishes, argued Kapil Sibal, would not be so understanding as to confront the appellant with such a "simple reproach."
He insisted that the woman was confused—that while she may not have liked what Farooqui did she wished him well and wanted to remain friends.
The court accepted the argument of Farooqui's lawyers—that because the woman was split in her emotions towards Farooqui, she could not communicate precisely her lack of consent when Farooqui pressurised her. The judge fell for this argument:
[T]he unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant. If that were not so, the prosecutrix would not have told the appellant that he had gone too far on that night. At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.
Unfortunately, Justice Ashutosh Kumar virtually ignored the import of another mail the American scholar sent to Farooqui 12 days later. This communication, filled with expletives, was far more forceful in tone than the first one and accused Farooqui of ruining her life:
"Xxxx for doing this. Xxxx for taking away my confidence, xxxx for making me leave India the country I love. Xxxx for taking advantage of my kindness. Xxxx. You were supposed to be my friend. Instead you manipulated me. You hurt me. I said no. I said no many times. You didn't listen. You pinned my arms. You pulled my underwear down.
In the past two weeks I have blamed myself. I have spent the last two weeks crying, processing. I have thought about death. My mother tried to fly here to get me. My sister has put my nieces on the phone to talk with me so I don't hurt myself...
I am xxxx scared now. I am xxxx screwed up now. I used to own my sexuality.
You took that from me, you forced me to do something I did not want to do. I stopped struggling because I was scared...
So remember this, what you did that night wasn't one night, what you did that night continues to affect me and my suffering, my pain. It's on your hands, when I carry this forward in life. It is your sin that I carry forward...
You disgust me..."
This evidence should have nailed the case. But Kapil Sibal argued that this change in the complainant's attitude came about because the accused, after reading the woman's 30th March mail, "realized the necessity of calling the prosecutrix and telling her that there never was any intimacy between him and her and that it shall never be and he did not want to continue any alliance with her."
The lawyer of the accused argued that the complainant's version changed after Farooqui decided not to continue the relationship with her. But then if that was the case, why did Farooqui apologise to the woman in the first place, soon after she wrote the 30 March email?
Just see the lame excuse advanced by Farooqui's lawyers:
"... the appellant (Farooqui) has admitted that the prosecutrix (the American woman) had sent him an email to which he had replied as "my sincerest apologies". He has stated that it was written only after reading the first two lines of the email as the appellant was busy that morning and was constantly in communication with other artists and writers regarding his performance of 'Dastangoi'. The first impression of the appellant after going through 2-3 lines of the email dated 30.03.2015 was that prosecutrix was upset because full attention was not given to her on the last night," and that is why he wrote that apology note to the American lady."
Can there be a more facile argument than this?
But Justice Ashutosh Kumar refused to take into cognizance these later developments: his conclusion was that the American scholar that night clearly did not do enough that night to convey the message clearly to the accused that she was unwilling to participate in the sexual act.
That raises important questions about the interpretation of the consent of a woman—a question which possibly the Supreme Court will have to finally answer.
* All quotes taken from the Delhi High Court judgment, available here.
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