“Instances of woman behavior are not unknown that a feeble ‘no’ may mean a
‘yes’” stated Justice Ashutosh Kumar of the Delhi HC while acquitting
Mahmood Farooqui, the co-director of a popular Bollywood movie ‘Peepli
Live’, of charges of raping his friend and US Fulbright scholar at his
Delhi residence in 2015. While a woman’s ‘no’ may mean a ‘yes’, a ‘yes’ may
mean a ‘no’ as evidenced by Section 375 of the IPC that states that sexual
intercourse with a female under sixteen years of age, with or without her
consent, will be construed as rape. Ironically, the same IPC act also
provides that *sexual intercourse by a man with his own wife, the wife not
being under fifteen years of age, is not rape. *Baffled yet?
This particular ruling, overturning the trial court sentence of seven years
to the accused, on the back of the ‘benefit of the doubt’ extended to him,
is not an aberration but a mere reflection of the fact that our judiciary
too finds its roots and prejudices in a suffocatingly patriarchal society.
One needs to delve into the precious nuggets of abhorrent logic that this
specific court judgement contains to understand how rulings such as these
actively take away agency from women and question their capacity for
independent thought and decision-making. It was not very long ago that the
now well-known Gurmehar Kaur claimed that it was war that claimed her
father’s life, and not Pakistan. Instead of trying to appreciate the
sensibility of a young woman who chose not to lay a blanket blame on a
country for the missteps of a few rogue elements, she was called out by
many, who claimed her ‘mind was being polluted’, yet again infantilising
a thinking young woman.
“When there is an assumed consent, it matters not if one of the partners
to the act is a bit hesitant”- thus goes a part of the judgement. This
shouldn’t merely baffle but enrage you, men and women alike. The essence of
this pearl of wisdom seems to be that despite there being ‘assumed’ and not
unequivocal consent and the woman’s observable hesitation, the judge
believes that it was difficult to conclude whether there was an actual
denial of consent. So, the absence of denial of consent means consent.
Right? Wrong. As per the law, “ consent means an unequivocal voluntary
agreement when the woman by words, by gestures or any form of verbal or
non-verbal communication, communicates willingness to participate in the
specific sexual act”.
This idea of ‘assumed consent’ needs to be revisited. This putrid
assumption stems from yet another mistaken idea that consent, once granted,
stands for all future occasions. So, a person you have slept with can’t
rape you much like your husband can’t really rape you, for nothing wrong
happens within ‘sacred’ bond of marriage. The construct of ‘assumed
consent’ is also strengthened by an unequal sense of entitlement over a
woman’s body and that once consent has been given, everything is fair game.
In February this year, a cathartic Ted Talk of an Icelandic woman with her
Australian boyfriend who had raped her, underlined how men are conditioned
to believe that women’s resistance may not necessarily mean no. So, what
essentially violates the woman’s body and is rape to her may just be sex
for the perpetrator.
It’s pretty evident that the rot goes deep within the social system, of
which the judiciary is also an extension. Needless to say that educating
the young about sexuality and consent is of paramount importance and no
number of laws can substitute for the chance to inform our young.
The author likes to be known as:
“A girl has no name”