How Can a Feeble ‘No’ of the Woman be Her Consent?

Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created aflutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28th March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of ‘promiscuous character’.
The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation 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.
Judgement reads like a fiction, which elaborates that the victim has come to the house of the accused on his invitation. Both the victim and the accused consumed liquor in varying measures. The accused was displaying highly emotional behaviour in a drunken state. Somebody else was also to join them in the drinking session but he did not turn up. The victim’s inherent motherly love started overflowing towards the accused. Then the accused expressed his desire to make love with her. The victim initially says ‘No’ but ultimately goes along. In her mind, she remembered the case of Nirbhaya, a hapless girl who was brutally raped and killed and succumbed to the desire of the victim. She even made a mental move of feigning orgasm so as to end the ordeal and participated in the act. After completing the act, the accused asked her to do it again. In the meantime, the privacy was disturbed with the ringing of the doorbell and the arrival of the two associates of the appellant. The questions which arise are whether or not there was consent; whether the accused mistakenly accepted the moves of the victim as consent; whether the feelings of the victim could be effectively communicated to the accused and whether mistaking all this for consent by the accused is genuine or only a ruse for his defence. At what point of time and for which particular move, the accused did not have the consent of the victim is not known.
To answer the aforesaid questions, it would be necessary to see what the word “consent”, especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredient of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. The sermon of the Court on and says that ‘in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean ‘yes’ in case of yes or ‘no’ in case of no. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed 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 man and woman are socialized into gender roles which influence their perception of sexual relationship and 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’.
There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the victim and the accused and after coming to know about the alleged incident, she had corresponded with the victim wherein she had informed her that the accused had been under a rehabilitation regimen for his ‘bipolar mental condition’. The victim rubbished such an explanation by stating that the occurrence had to do more with the physical power of the accused than the mental condition. Though the mental condition of the appellant may not be a ground to justify any act which is prohibited under law, the same can be taken into consideration while deciding as to whether the accused had the correct cognitive perception to understand the exact import of any communication by the other person. Under such circumstances, the benefit of the doubt is given to the appellant.’ This is bizarre logic and it has shocked the conscience of the legal community.
The Punjab and Haryana High Court, which acquitted three persons, who were convicted for having raped a woman at Sonipat is equally disturbing. It is a well-established principle of the criminal jurisprudence that the benefit of doubt is given to the accused when his/her crime is not proved beyond all reasonable doubts but here in the case the court has not only acquitted the accused persons but damned the victims by quoting her statements from examination like, ‘it is correct that room was got booked by me on my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me’ and then goes on saying that ‘it is actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world’. It further condemned the allegations of the victim to be an act of blackmailing.
The Court went on to say that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents’.
It is strange when there is growing awareness for the gender sensitisation these judgements have dealt a severe blow to victims by letting off the accused on such grounds as are not found at all in substantive or procedural criminal law.

How Can a Feeble ‘No’ of the Woman be Her Consent