One doesn’t know where to start responding to this barrage of speculations advanced by the High Court to reformulate real consent, real resistance and real rape—the holy trinity of inexcusable defense in rape cases.
The Delhi High Court judgment acquitting Mahmood Farooqui is the Kohinoor among the jewels of bad judgments in cases of sexual violence and that is an admirable feat itself when it competes with other appalling judgments and orders that even after the progressive amendments to the law in 2013, continue to build bad rape law precedents in this country.
It invents new defenses for the accused, tends to redefine rape law and turns the definition of consent on its head and all these, by a willful disregard of the existing law and a dishonest and confounded appraisal of facts.
The trial court last year convicted Farooqui on charges of rape. The trial court had carefully examined the statement of witnesses, all material evidence placed before it, the conduct of the victim and her testimony to convict the accused. It found the statement of the prosecutrix to be of sterling quality as well. More importantly it understood the import of the newly added definition of ‘consent’ in S. 375 of the Indian Penal Code by locating ‘lack of consent’ in the taking away of one’s control over her sexuality.
The High Court disputes none of these findings. It holds that the prosecutrix is a sterling witness (para 96 of the judgment) but puzzlingly creates a separate class of survivors-- the ‘educated women’ (like the prosecutrix) for whom the standard of ‘positive denial’, it deems, will be higher.
Needless to affirm, this bizarre and avowedly sexist judicial invention has absolutely no basis in law. The definition of consent was added to the expanded definition of rape in the 2013 criminal law amendments to mean ‘unequivocal voluntary agreement’ when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The legislative intent behind putting a definition to consent was to thwart decades of patriarchal and prejudicial reading of ‘presence’ of consent in the judicial discourse where past sexual history, absence of physical injury and other phallocentric commonsense were considered.
The Verma Committee while expanding the definition of rape had noted that definition of rape should require the existence of ‘unequivocal and voluntary agreement’ as well as proof by the accused of steps taken to ascertain whether the complainant was consenting. This was in keeping with decades long struggle by women’s groups to expand the definition of rape, include a definition of consent and to ensure that the victim could access the legal system without the threat of re-victimization. The High Court judgment in a twisted way proves why the legislation felt the need to encode a definition of consent in S. 375 and shows how in spite of that, the courtroom can be the graveyard for (progressive) law reforms where its embedded patriarchy stubbornly makes a mockery of the object and intent of the definition of consent.
The court also assumes that the accused, also a man of ‘letters’, known to the survivor, did not understand that the survivor had said ‘no’, because presumably the ‘no’ was ‘feeble’ and that the accused was ‘bipolar’ and unable to comprehend her response. The focus therefore magically shifts from what the woman said to what the man understood. This irony is even starker when one considers the immediate instance—where the case of the accused in the trial court was that the act not having taken place—it was an active denial on grounds advanced by the accused that there was no opportunity or time for oral sex and that there was no relationship between the accused and the complainant.
The accused in his statement before the trial Court denied any intimacy or physical contact; he denied both these past instances of consensual kisses (as was stated by the complainant); he even denied that any sexual act took place on the day of the rape. In his statement before the Trial Court he categorically denies that there was any intimacy between the victim and him at any point.
He told the Trial Court that after he apologized to her via email, he called her on the phone, “I told her that there had never been any intimacy between us and there never shall be....” He also stated before the Trial Court, “It is an incorrect statement given by the prosecutrix as I never sexually assaulted her nor did oral sex with her.” In other words, there was nothing to warrant allegations of ‘feeble’ no arising from ‘misunderstanding’ (in the mind of the accused no doubt, according to the High Court) based on past sexual behavior.
The new ‘plea’, completely contradictory to the earlier plea, bordering on the ‘argument’ that, ‘if at all, such an occurrence had taken place, it was with the consent of the prosecutrix’ was allowed to be added by the Judge as an ‘alternative plea’. Never mind, that the Supreme Court has also clearly laid down that irreconcilable and contradictory stands should not find any favor in trials. And yet, the court allows this and yet does not allow the complainant to lead evidence on this ‘alternative’ plea, and happily qualifies the negative consent of the complainant by garlanding it with an adjective (feeble), without giving the complainant a chance to rebut this. How is a supposedly material fact that consent was feeble tested here without a cross examination?
One doesn’t know where to start responding to this barrage of speculations advanced by the High Court to reformulate real consent, real resistance and real rape—the holy trinity of inexcusable defense in rape cases, which progressive law reforms in the past 30 years had sought to eradicate. To begin with, the court creates a new defense for ‘intellectually/academically proficient’ parties, who are ‘persons of letters’ and not ‘conservative’ and unexposed to the ‘various ways and systems of the world’ where a ‘feeble’ no, the court says would not always mean a denial of consent (para 77). Factually, was the ‘no’ by the complainant ‘feeble’? The testimony of the prosecutrix in the trial court on page 76 in the trial court judgment, gives an idea how many times she said no, by words as well as gesture. What she had stated in her testimony in court, she had stated in her FIR and her statement recorded under S. 164 CrPC. Her subsequent conduct is reproduced in the emails in the Sessions Court as well as the High Court judgments. They together show that nowhere is her lack of consent ‘feeble’.
In fact, the statement of the victim in the Mahmood Farooqui case, which has been accepted by the High Court as being of “sterling” quality, shows beyond doubt that her lack of consent was emphatic, resounding, clear, and expressly communicated:
“At that time, accused kissed me. I said no. I pushed him away. He tried kissing me again and he said “I want to suck you.” (the witness started weeping)
I said no. He started putting his hand up my dress and pulling my underwear down from one side. I was trying to pull my underwear up from the other side. He held my arms and pinned my arms and body on the diwan. I said no. I struggled to push him away but he was stronger than I was. I did not understand how he could be that much strong. I was very scared. (The witness continued weeping and restless).
I thought two things. The first thing I thought “I had seen a clip from documentary of Nirbhaya case where rapist had said that if she (victim) did not fight, she would still be alive.” I thought that I am going to get out of this and survive. Accused forced oral sex on me. I faked an orgasm because I wanted it to end…”
After communicating her lack of consent repeatedly through words, gestures and actions, when the accused still does not stop forcing himself on her, and in fact begins to use force and his physical strength to pin her down that she is forced to submit and resorts to ending the ordeal. It is impossible to imagine which part of this sterling testimony of the prosecutrix conjures an impression of ‘feeble’ no in the mind of the judge.
Legally, does it matter, even if hypothetically one assumes that it was a ‘feeble’ no? It doesn’t. The definition of consent was added to the expanded definition of rape in the 2013 amendments for a reason. Again, past intimacy of a consensual nature must not have any bearing on the trial. The law prevents the accused from raising irrelevant facts such as past sexual history and victim blaming and shaming during the trial and yet one finds the text of the judgment allowing past history to intervene, to show at the very least that the accused did not understand the communication of negative consent from the complainant. There is no doubt that consent, lack of consent and expression of lack of consent is different in situations where there has been past sexual intimacy. But in a situation where the woman has stated that she expressed her lack of consent repeatedly (and the same is unchallenged during cross-examination) and where the accused has repeatedly denied that any sexual act took place, either in the past or on the day of the rape, can a court or public commentators claim that they know that the accused did not understand the ‘No’ because they as third person have decided that the ‘No’ was feeble, not resounding and not emphatic?
Similarly, while ‘bipolar’ condition was not a defense (and nor is it a valid defense in law) advanced by the accused, and surfaces only by way of email communication between the complainant and the wife of the accused, the court invents it as a plausible defense speculating reasons for non-comprehension of negative consent by the accused, while hastening to add that it would not venture into a speculative field since no material has been advanced by the accused.
Will the court say for example, that a drunk man who forces himself on the victim in spite of her categorical lack of consent is not guilty because he was unable to comprehend anything because he was drunk?
Contrary to what is being argued in think pieces, consensual intimacy in the past is bound to lead a woman to believe that the man will accept her first signs of resistance and her expressly communicated lack of consent. It will make a woman believe that she doesn’t need to scream, shout, physically hit back to make the man stop raping her. In this case, contrary to certain distortions of the facts, there was no “relationship” between the parties. In a perverse and deliberate misreading of facts, the sexual autonomy of the prosecutrix, who owned her sexuality to affirm that there were two consensual exchange of kisses in the past (and no relationship) to repeatedly suggest that even though she continuously communicated her lack of consent when the accused forced himself on her, it was unreasonable to expect the accused to stop raping her, because he did not understand her non-consent.
This is the tragedy of our courtrooms – that our courts consider the average Bollywood narrative of consent, when even Bollywood has learnt to introspect. The farce is, there is a larger pattern to judgments like Mahmood Farooqui v State and that is, a politics of backlash. Courts have flippantly spoken about ‘common knowledge’ and ‘studies’ without ever citing hard data and numbers from actual studies, only to affirm that women ‘misuse’ law, when a careful scrutiny of such judgments reveal how easily the courts obfuscate the distinction between ‘proved’ and ‘disproved’ categories in law.
The judicial activism in eroding progressive legislations has seen the demise of S. 498A of the Indian Penal Code, assaulted the understanding of ‘shared household’ in the domestic violence act, and in cases like Farooqui, spun the definition of consent by adding additional protective layers for the accused as a man of letters to ‘understand’ consent. The future of radical feminist politics survives on confronting the judicial and popular hazing to articulate a collective response to backlash.
The Author is a law professor at Jindal Global Law School