One only needs to examine the first page of the judgement in the case of Mahmood Farooqui versus the State (Government of NCT of Delhi) to reveal the power asymmetries between the doctoral student from Columbia, the rape survivor/complainant and the accused – Mahmoud Faroouqi, the director of Peepli Live,  the appellant/defendant. He has a regiment of nine lawyers; she has two. Justice Ashutosh Kumar of the Delhi High Court in an 82 page verdict overturned the sentencing of the Appellate Court which had sentenced Farooqui to 7 years of Rigorous Imprisonment and a 50,000 Rupees fine, perhaps a just but by no means, an exemplary punishment for rape.

The judgement presents a vivid though terrifying account of the evening she was assualted. We know that the she went to his house believing they would all be going for a wedding. She found herself alone with a drunk Farooqui and his male friend.  We know she was concerned both about Faroouqi’s state of inebriation, and his mental health, because she called his friend so that he was not left on his own. She wanted to leave soon after arriving. However Ashish Singh, a friend of Faroouqi, asked her to stay back since his wife had not returned, as if being a female friend somehow obligated her to provide “care” for him by “feeding him” in his wife’s absence (pp 4 of the verdict). Despite the fact that she had called a Meru cab (3 times) to leave his home and when the driver couldn’t find the location, she was willing to leave in a rickshaw, she was prevented from doing so by Ashish Singh, using the ruse that it would be unsafe for her to do so.

It’s interesting that the judge does not consider any of these acts on the part of the survivor as indicators that she had indeed not consented to sex. You wouldn’t want to leave a house so desperately if you wanted to have sex with its resident. The details of the evening present an ominous atmosphere – a young woman, a foreigner, with two men in a house, being stopped from leaving, and one of them is drunk and making sexual advances at her. This is a textbook example of an unsafe space. The fact that she knows both of them is redundant – majority of rapes are committed by people known to the survivor, not by strangers.

The anatomy of consent

Prior to these events, from the version presented at the Court, it appears that Farooqui and the survivor had multiple interactions usually in the presence of other people. During many of these instances Farooqui is described as being drunk and there are two mentions of consensual kissing. It would not be unfair to surmise that there may have been a casual flirtation between the defendant and the complainant and that as a foreign scholar she had access to and became friends with Farooqui and his friends in Delhi who on multiple instances offered assistance for her research. However this neither explains nor excuses non-consensual sex at a later date.

The fact that she knows both of them is redundant – majority of rapes are committed by people known to the survivor.

It was clear that she cared for him – she tried to comfort him, even when  the “the apellant was crying so bitterly that nasal mucous was dripping down his moustache (pp 10)” and even gave in to his demands for procuring alcohol on a dry day in Delhi. The survivor described herself as feeling “maternal” towards him. This makes the act even more egregious, because it is a gross violation of the norms of friendship.

Consent is a constantly negotiated process. Women can consent to certain sexual acts and not others. They can consent to having sex with protection and in its absence withdraw consent. They can start to have sex but withdraw consent at any time during the act if they are uncomfortable. There is an excellent animation that uses the humble and ubiquitous cup of tea to explain what consent is.

There is no doubt that this act was non-consensual. The survivor’s own articulations of what happened to her makes it clear –  “I used to own my sexuality. You took that away from me. You forced me to do something I didn’t want to do. I stopped struggling because I was scared” (pp 14 and pp 16). In emails to his wife and Farooqui, the survivor had clarified two things worth noting : firstly his Bi-polar disorder should not be an excuse for sexual assault and secondly that what he did was non-consensual.

Judicial logic and understandings of consent

When one analyses the judge’s logic in acquitting Farooqui several things come to light. See the paragraph below for example:

Instances of woman behavior 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” (pp. 59-60)

This (mis)understanding of consent reflects not just a judicial position but is in fact a reflection of the ways in which the larger society constructs consent. Further it is preposterous that a “feeble no” is taken as a no when the complainant and the defendants are strangers. However a “feeble no” cannot be presumed to be non-consensual if the parties are known to each other. Also what indeed is the relationship of intellectual or academic merit with consent? It is precisely these kinds of fallacies, among other things that have been instrumental in the non-criminalization of marital rape in India.

This (mis)understanding of consent reflects not just a judicial position but is in fact a reflection of the ways in which the larger society constructs consent.

Further the judge clarifies that the defendant was unaware that the survivor “consented under fear” because she apparently did nothing to convey this.

“There is no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along.”

Also Read: My Modesty Is Not Outraged, I Am! Patriarchy In The Language Of Law

It is interesting that Justice Kumar decided to use the term “ordeal” while at the same time arguing that the complainant did not convey that she was scared. The legal definition of consent according to Section 375 of the Indian Penal Code makes it clear that there needs to be physical resistance to the act of penetration for it to count as non-consensual, despite the fact that consent is understood as an “unequivocal, voluntary agreement either through words, gestures or any form of verbal or non-verbal communication” (pp 36). Thus in the legal imagination a rape survivor is always a battered, bruised woman displaying physical wounds that testify to her physical resistance. Otherwise she appears to have “deemed” to have given consent. The threat of a man much bigger and with greater physical strength is not adequately scary for a woman to give consent and in this particular instance the survivor has said that he pinned her arms down before pulling down her underwear.

The defence’s tactics were initially to establish that the act couldn’t have taken place because 1-2 minutes are not enough to “perform the act”. From their version it would appear as if they have zero practical knowledge of sex, as if a minute is an inadequate time to rape. However despite the protestations of the Prosecution, the defence used a different set of arguments in Farooqui’s favour – the issue of consent, which had presumably not had such currency when the Appellate Court convicted him.

The arguments that were used to establish that the act was consensual were as follows: the complainant had exchanged kisses with him earlier, had continued to be in his presence despite the fact that he was “drunk and befuddled”, did not “resolutely or stoutly deny” sexual favours (despite the fact that she did tell him repeatedly that she did not want to have sex with him, did not tell his wife and his brother when she met them immediately after being raped, and did not run away from the house after the act (pp 38-39). Further the verdict argues that their history of prior intimacy may have given the defendant the impression that there was consent.

At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner” (pp. 38-39)

This characterization of hesitation as feeble hesitation is deeply problematic especially in the light of what Judge Kumar has to say on pages 62-63:

“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 an 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”.

While he says there is some “difficulty” in accepting this model, he doesn’t explain what this difficulty is except to say there is a possibility of dormant consent. This implies that because someone didn’t say no, it implies a yes, which is dangerous legal precedent setting at multiple levels. In other words, other Judges can use this example to establish that consent was given because there is the possibility, however slim, that the accused presumed consent.

in the legal imagination a rape survivor is always a battered, bruised woman displaying physical wounds that testify to her physical resistance.

A deeper reading gives some clues as to what these difficulties might be especially when rape is seen as an act of uncontrollable “passion, actuated by libido”.

“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 (underlined for emphasis by the author) 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
(pp 64)”.

The judge’s narration is a refraction of the heated contestations about female agency, gender and violence in India. Whether these are issues of domestic violence or rape, it is important for the victim to establish that she is innocent and deserving of legal protection. There are numerous references to her smoking and drinking. It is unclear whether this, her race as well as casual prior flirtation and Farooqui’s diagnosis of Bi-polar disease, influenced the judge.

There’s nothing surprising or novel in his views, but what is interesting is that between pages 65-75, the judge seems to vacillate between being aware of the complexities of consent and active female agency in giving consent and displaying fairly non-egalitarian notions of consent, including not situating rape as an act in the exercise of power, but instead blaming it on sexual drive.

He even makes sympathetic statements in favour of the survivor by stating that her behavior post-rape seems to indicate that she may have suffered from Rape Trauma Syndrome and is not proof of her guilt as the defendant’s team would like us to believe. He also brings up studies of memory, quoting them at length; perhaps this is a form of internal self-justification that would ratify his understanding that consent was presumed, even if not explicitly given. Ultimately his verdict hinges on the fact that she did not say no loudly, unequivocally and resolutely. And so Farooqui walks free.

Also Read: Understanding Consent Beyond A ‘Yes’ Or A ‘No’


Featured Image Credit: The Quint

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