No, Delhi High Court: Alcohol doesn't cause rape

Rape is an offence and not a medical condition, and it isn't forensic evidence but exercise of sagacious judgment which should determine whether one has consented to sex, the Orissa High Court had ruled in Fanibhushan Behera and Ors case (1994). The judges realised and acknowledged that determining consent (or the lack of it) merely on the basis of medical evidence - presence of injuries (to prove resistance) was a treacherous terrain which could often lead to injustice.

This note of caution, or call it a lesson, even, appears to have been lost on the Delhi High Court which acquitted Achey Lal in the 2010 case involving the rape and murder of a 65-year-old woman. The victim didn't live to tell the tale, there were no eyewitnesses so circumstantial evidence was all the court had at its disposal.

The post mortem report showed abrasions and injuries on the victim's private parts, and that she had consumed alcohol.

It was evident from the injuries that her coitus with Achey Lal was forceful, but was it forcible? No, it was voluntary, ruled the judges. Did she consent to having sex? Yes, she did, they held.

Why? Because, the absence of injuries on any other part of the body proved that she hadn't resisted Achey Lal's advances. And, alcohol must have caused her to shed all inhibitions and consent to having sex with an unknown person.

There is a cryptic, stray observation in the court's ruling - that the victim, aged between 65-70, was past the age of menopause. This has led to much outrage and many misinformed conclusions, but they aren't pertinent because the court did not expound upon this observation. Using an isolated remark to indulge in fervid speculation about what the judges could have thought about the victim's libido would be a fool's errand.

However, Achey Lal's acquittal should provoke both outrage and introspection. Because it stands out as yet another example of the pitfalls of what experts term as "medicalisation" of consent. And of course, the court's shocking presumption that consumption of alcohol would point favourably towards consenting to sex.

The Indian legal system's preoccupation with forensic evidence, to the forceful exclusion of all other reasonable possibilities, to prove or disprove consent isn't a recent one. And the rulings based on this shock one's conscience.

Consider the Andhra Pradesh High Court's decision in Public Prosecutor versus Yejjala Ramaswamy case (2004). A pregnant midwife had alleged rape. The court refused to believe her because, she was well-built, and there were no injuries to prove that she had resisted her attacker. Surely, a pregnant midwife, well aware that rape could cause abortion, would have fought with all her might, and must have the bruises to prove that she had, the judges ruled. They drew upon the Supreme Court's infamous judgement in the Tukaram case (1979) which had sparked off nationwide protests and after a bitter struggle, culminated in amendments to the rape law.

The detriment in medicalisation, grounded as it is in the patriarchal belief that absence of protest means an enthusiastic yes to sex, is exacerbated by the poor quality of forensic evidence in India. How many victims have the wherewithal to hire an expert to successfully rebut the prosecution's medical expert's testimony that the nature of injuries conclusively proved the victim's agreement or acquiescence?

Alcohol consumption, or even inebriation, to blame rape victims, or to presume consent on their behalf, is a tried and tested method, laden with extremely misogynist value judgement. The court's reliance on this was injudicious in the extreme, to put it mildly.

As it is, the recent amendments in the rape law have made many men livid, (erroneously) crying victimisation. The high court could well have eschewed this pernicious precedent which comes as a big boost to rape apologists.