No means no: 3 viral FB posts on Delhi HC's 'feeble' judgment in Mahmood Farooqui rape case
Ayesha Kidwai
"Consent cannot also be analysed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. 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.
Thus gender relations also influence sexual consent because men and women are socialised into gender roles that influence their perception of a sexual relationship and the expectation of their specific gender roles with respect to the relationship. However, in today's modern world, with equality being the buzzword, such may not be the situation."
Translation, anyone? My options are:
1. She was asking for it without knowing in her rational mind that she wasn't asking for it.
2. Women can't say anything but a feeble no because of patriarchal socialisation.
In short, women always end up asking for it. They are just there — being nonverbal — while the men have to do all the hard work.
Rebecca Mammen John
Deeply flawed reasoning coming out of a Delhi High court judgment in a rape case. For a start, your lordship, "equality is not a buzzword", it's enshrined in every Article of our Constitution. Second, consent has now been defined in the statute and you have no business saying that "instances of woman behaviour are not unknown that a feeble no may mean a yes". Watched too many crappy Hindi movies, Sir? And what in God's name do you mean when you say, "in an act of passion, actuated by libido, there are myriad circumstances that can surround consent and it may not necessarily always mean yes in case of yes, or no in case of no".
I have been reading too many ill-informed, sexist, misogynistic rulings that reinforce every damn stereotype that we have fought against. It is no longer about any one case.
It's no longer about the personalities involved, or the polarised debate surrounding them, in which we are forced to take the I am with her/I am with him stand. Courts can acquit or convict based only on evidence and, in doing so, they are expected to have a sophisticated understanding of the law. Obviously, there is no such understanding and that's a huge problem. So they end up sounding like the likes of Sakshi Maharaj. Terrible.
Jhuma Sen
Some preliminary thoughts on the Farooqui versus state, aka #nomeansyes case.
1. This has got to be one of the most baffling judgments I have read in recent times and that is saying a lot considering the rape law jurisprudence developed by our courts is less than passable.
2. First, let us clear the air regarding popular social media fantasy posts that the prosecutrix (the survivor) lied, meaning the act was consensual. The court categorically states that her testimony is of sterling quality. This has also been the finding of the trial court. However, the high court then sets out to explore the question of whether consent was provided by the woman. This stumps me because in the trial court, the case of the accused was that the act had not taken place.
This new plea, contradictory to the earlier one, was allowed to be added by the judge as an alternative. While relief can be sought in the alternative, the contentions raised cannot be contradictory.
What is even more astounding is that after allowing the appellant/accused to raise contradictory pleas (that the act did not happen and, if it had, it was consensual), the court did not allow the survivor to lead evidence on this alternate/contradictory plea.
This is baffling because the fundamental principle of criminal law is to prove facts and facts can be tested/proved only by cross-examination of witness. All material facts pertaining to this new plea (that there was consent) are not tested, nor proved but largely inferred from the evidence led in the trial court. How is the fact that "consent" was "feeble" tested here without cross-examination? The court is putting words in her mouth. It should have stuck to the evidence led and tested in the trial court and not "infer" from it.
3. Second, on the question of consent, and this has already been said before, the court shows scant regard for the letter and spirit of the law. Consent is encoded in the explanation to section 375 of the Indian Penal Code (IPC).
It is an unequivocal voluntary agreement when the woman verbally or non-verbally communicates willingness to participate in the specific sexual act. The testimony of the woman on page 76 in the trial court judgment, gives an idea how many times she said no, by words as well as gesture.
Her subsequent conduct was reproduced in emails in the session court as well as the high court judgments. They together show that nowhere is her refusal of consent "feeble". There is no hole in this testimony, as deduced by the trial court as well as the high court [one may please read the pages 115 to 121 for emails (please see email dated 30.3.2015 at para 43, page 117), pages 122 to 125 - testimony of prosecutrix, para 22 at page 110 for "consent", page 157 to 162 - the conclusion of the trial court judgment].
The high court imagines this consent to be "feeble" while deciding a fresh plea on consent and does not allow the survivor to rebut this assumption.
4. What counts as feeble? The court frankly had no business qualifying her lack of consent by using adjectives. The court, in para 85 of the judgment, said that "in an act of passion, actuated by libido, there are myriad circumstances that can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no".
This is unacceptable and one doesn't even know where to begin to respond to such crap. This is the kind of Bollywood logic that has pervaded a courtroom culture in rape cases and this is why the Verma committee suggested the incorporation of a definition of consent in the IPC, which was incorporated later in the 2013 amendment. We all know "consent" of the prosecutrix is crafted by the court through an assortment of past sexual history, victim blaming and the like.
5. The law also prevents the accused from raising irrelevant facts such as past sexual history and victim blaming and shaming during the trial [Section 146]. And yet you find the court allowing to be put on record the past sexual history of the victim in order to prove consent.
6. The most baffling part is the juridical imagination of the state of mind of the accused. The better part of the judgment seems to hinge on the fact that was not pleaded: that the accused was bipolar and hence unable to understand the lack of consent conveyed by the survivor. Is the court trying to say, for example, that a drunk man who forces himself on a woman in spite of her categorical lack of consent is not guilty because he was unable to comprehend anything because he was drunk? How is this even a legal defence, let alone a moral one?
PS. Senior advocate KTS Tulsi lied through his teeth on the NDTV show The Buck Stops Here when he alleged that the survivor had exchanged a kiss with the accused on the day of the incident, leading the accused to believe there was consent.
Can someone please tell senior advocates to desist from deliberate hazing?