Mahmood Farooqui: HC’s troubling interpretation of consent
By suggesting 'no may not always mean no,’ and acquitting Farooqui, Delhi HC has presented a troubling understanding of consent.
The Delhi High Court on Monday acquitted writer-filmmaker Mahmood Farooqui of charges of raping a US researcher at his home in a drunken state.
In his judgement, Justice Ashutosh Kumar suggested ‘no may not always mean no,’ while giving Farooqui the benefit of doubt.
“Instances of woman behavior are not unknown that a feeble “no” may mean a “yes”… when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble “no‟, was actually a denial of consent,” noted Justice Kumar.
Skewed understanding of consent
Rape is, as accepted widely, a crime about establishing or demonstrating one’s power over the person who is raped. Although it involves sexual activity, it is not generally about sex alone, and, consequently, the commission of the crime hinges not merely on the occurrence of sexual activity in the manner contemplated by the law but on whether or not the activity was consensual.
The Court appears to have developed a theory of consent which is incompatible with respecting the autonomy of women and their ability to convey what they mean — it relegates women to a passive role in sexual relations (or, as the decision puts it, “he performs the active part whereas a woman is, by and large, non-verbal.”
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Such an interpretation places an inordinate degree of importance on a formal education, and appears to accept that men are creatures who may not only hear the word “no” and understand it to mean “yes,” but who also may not realise that a woman may choose not to resist sex even if she says “no” simply because she is afraid or because doing so appears to her to be the safest course for her.
This is arguably an understanding of consent which, apart from being troubling, is also deeply insulting to both men and women. The Court itself has stated that ‘in today’s modern world with equality being the buzzword, such may not be the situation’ in relation to its comments about gender roles. Buzzword it may be, ‘equality’ is enshrined in the Constitution of India, and it boggles the imagination that men could be portrayed as possibly not understanding monosyllabic words they hear, or that women could be treated as not saying what they mean.
Consent is difficult to negotiate. It is particularly difficult to determine the existence and nature of consent when one is not even involved in the negotiation. And it is precisely for that reason that if a person says, “no,” to sexual activity, that word should not be interpreted by anyone to mean: “yes.”
Not by men or women in their everyday lives, and certainly not by courts expounding on the nature of consent in judicial determinations. This is a legal issue but it goes beyond the law, and speaks to the kind of society which we aim to construct. One can only hope that is a society in which, at the very least, the explicit expressed desires of people regarding the sexual conduct they wish to engage in (or not) are unreservedly respected.
— Apurva Vishwanath (@apurva_hv) September 25, 2017
Subjective interpretation of rape laws
About a year ago, a lower court had convicted Farooqui in the same case. At the time, there had been a fair deal of controversy about the rights and wrongs of his conviction.
The legal recognition of non-consensual oral sex as rape —which is what Farooqui has been accused of — is relatively new in India. It is a product of the amendments brought into force in 2013, in the wake of protests that followed the death of a woman after she was gangraped in Delhi.
These amendments, to put it mildly, are not unarguably ideal. They contain no proximity clause, for example — a man involved with a woman just below the age of consent could be accused of rape, if he himself were just above it. There’s also, no clear gradation of sentences to punish the commission of offences. Further, the amendments are not gender neutral — rape is thought of as a crime committed by a man against a woman.
When it comes to consent, in the context of rape, Indian law explains it in the penal code to mean ‘an unequivocal voluntary agreement when a woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act’. That said, the law does not recognise medical rape (which can occur during the conduct of medical procedures) at all and rarely recognises marital rape.
It does, however, explicitly state that not physically resisting penetration cannot by itself be regarded as consent to sexual activity. It also invalidates consent which is granted due to fear or misconception — if the person to whom it is so granted knows or has reason to believe that that is why it was granted. Apart from a general provision in the penal code, ‘fear’ is also additionally explicitly mentioned in relation to rape: sexual activity contemplated by the provision would not cease to be an offence if the woman’s consent had been ‘obtained by putting her or any person in whom she is interested, in fear of death or of hurt’.
Along similar lines, the requirement that sexual activity be consensual to avoid being a crime is not satisfied if consent is granted by a woman who cannot understand the nature and consequences of what she’s consenting to because of unsoundness of mind, intoxication, or the administration of any stupefying or unwholesome substance.
The law of evidence states that if ‘a woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent’ in a few specified circumstances.
These circumstances are, however, few and far between and involve situations where the power dynamics between the persons involved are clearly and heavily skewed against the woman who alleges that she has been raped.
The refusal to recognise that consent matters is the most horrifying and terrifying part of the #MahmoodFarooqui Delhi HC judgement.
— Why Loiter? (@whyloiter) September 26, 2017
What is a "feeble no"???
No should be a simple enough word, right? Our courts don't think so. #MahmoodFarooqui
— Why Loiter? (@whyloiter) September 26, 2017
As such, although a woman who says she did not consent to sex with a police officer within the limits of the police station, to which he is appointed, would be believed, the same presumption would not apply to a woman who said that she did not consent to sex with an acquaintance at his home.
There are some protections granted to a woman who alleges rape, though. In theory, if the question of consent is an issue in court, her trustworthiness cannot generally be challenged by evidence or by questions in cross-examination which relate to her ‘general immoral character, or previous sexual experience’ to prove either the existence of consent or its quality.
The trouble is that there is a great deal of subjectivity is embedded in these provisions relating to consent. And, considering the existence of consent cannot easily be objectively determined by a third party, rape is a notoriously difficult crime to prove.
It is difficult to ascertain if consent was granted, it is difficult to determine the circumstances under which it may have been granted, and it is difficult to be certain of what a man accused of having committed rape understood. A person who has absolutely no intention of committing a crime is rarely held to be guilty of that crime: that is one of the basic principles of the law although, as with all things legal, there are exceptions to it.
In the rape case against Farooqui, the court may well have found that the prosecution did not prove the commission of the crime beyond all reasonable doubt, and in such circumstances, the legal imperative is to acquit the man accused of having committed it. That is how the legal system is supposed to function: we are all innocent of the crimes we are accused of until proven guilty.
The Court also raised the issue of whether the man concerned ‘had the correct cognitive perception to understand the exact import of any communication by the other person’ considering that he has bipolar disorder although it did not venture into the field since no evidence had been led on it.
It's her action, her reactions, her responses, her words, her texts and her behaviour under scrutiny in the HC.
— Alok ಪ್ರಸನ್ನ कुमार (@alokpi) September 25, 2017
That said, although the Court has referred to statutory law, its understanding of consent seems to have been heavily influenced by non-statutory factors. From the decision itself, it appears that, in this case, the woman did in fact say, “No.” (In describing the factual matrix before it, the Court states, in Paragraph 81: “The prosecutrix says “No” and gives a push but ultimately goes along.”)
Despite obvious attempts by both the Indian Penal Code and the Evidence Act to be fair and to have rape be a crime which is punished and punishable, the letter of the law is never read in a vacuum. To the contrary, it is always read in conjunction with one’s understanding of a situation, and one’s own world view. And that is what is truly troubling about the acquittal of Mahmood Farooqui – not the acquittal itself but the comments the court made in relation to consent while coming to the conclusion that an acquittal was warranted.