At a time when we in India are trying to get the courts to recognise the importance of consent and to acknowledge marital rape as a criminal offence, yesterday’s Delhi High Court verdict acquitting Peepli Live director Mahmood Farooqui giving benefit of doubt as the victim was familiar with him is a huge step backward in the movement.
In the 82 page judgement, the court said, “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.”
The judgement further states that if the parties (the victim and the perpetrator) are known to each other, are ‘persons of letter and are intellectually/academically proficient, and if, in the past, there have been physical contacts’, it would be difficult to interpret whether the ‘feeble no’ is actually denial of consent. This is outrageous since whether or not the no is ‘feeble’, no means no.
The email which the victim wrote to Farooqui on 12th April, 2015, about her abuse, she has described her ordeal. One wonders how the honourable High Court judges found this a “feeble no”.
You were supposed to be my friend. Instead you manipulated me. You hurt me. I said no. I said no many times. You didn’t listen. You pinned my arms. You pulled my underwear down.
She further wrote,
I used to own my sexuality. You took that from me, you forced me to do something I did not want to do. I stopped struggling because I was scared. I wanted to get out. I did get out. So remember this, what you did that night wasn’t one night, what you did that night continues to affect me and my suffering, my pain. It’s on your hands, when I carry this forward in life. It is your sin that I carry forward. It is you sin that I have to overcome. You disgust me……
While I am not commenting on the judgement, as I believe it relies on facts more than anything else, the language used by the judge to talk about consent is worrying. In a country where as many as 90% of rapes are committed by person known to the victim, a ‘feeble no’ to a ‘person familiar to the victim’ gives the rapist a freehand at abusing.
Irrespective of the background or the familiarity between two people, no should be considered as an absolute no.
Earlier in 2016, Farooqui was convicted by a special fast track court for raping a 35 year old American woman. Advocate Vrinda Grover, who represented the American woman, claimed that in an email dated 30th March, 2015, Farooqui had admitted to the crime and even apologised for having committed the act without her consent and against her will.
Arguing for Farooqui, former Minister of Law and Justice and Congress leader Kapil Sibal, said, “even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant.”
He also argued that Farooqui was a “bipolar patient and under rehabilitation regimen”. This is not the first time Sibal’s arguments in court with respect to dignity of women made us physically cringe. If former law minister could have such regressive thoughts on triple talaq and consent, one can only wonder what he would argue on criminalising marital rape.
The regressive language used by the court makes the fight of criminalising marital rape just gets tougher. While marital rape has been criminalised in many countries have criminalised marital rape, including countries like Ghana and Nepal, India has a long way to go. However, sooner or later, the government will need to swallow the bitter pill and criminalise the same.
The words used in the judgement only add to the Bollywood stereotype that if the girl says no, she most likely means yes and wants you to woo her, following which the hero turns on his stalker mode. I’d like to add here that importance of consent is gender neutral. If a man says no, it should also be considered no. India, as a society, not only has to deal with abuses towards women and insensitivity with which they’re dealt with but also the fact that many are in denial that men also get raped. That a man, or even a woman, is equally capable of raping a man.
The way forward
Judiciary, lawyers and judges, get a little sensitised towards dealing with sexual harassment and sexual abuse cases.
Let us not limit “no means no” concept to movies like Pink and actually implement them in real life. If films are allegedly encouraging people to resort to stalking and violence to get the person of their desire, they should also educate them the importance of consent.
Make rape, including marital rape, a gender neutral offence.
Let us not sweep these issues under the carpet. The abolishment of instant triple talaq was a great step in empowering women from abuse. Let us also take a firm stand on issues like marital rape and acknowledge that no, feeble or otherwise, is no. Get public opinion, form legislations and make marital sexual abuse a criminal offence instead of combining it with Domestic Violence Act as “civil offence”.