A feeble no is not a yes in the context of Rape: A question of consent

of the Indian Penal Code

A man is said to commit “” who has sexual intercourse with a woman under any of the six following circumstances:

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.

Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

A feeble no is not a yes in the context of Rape: A question of consent

Rape is defined as sexual intercourse performed without the victim’s consent. Hence, even a feeble is considered as an unconsented sexual act.

An acquittal of Mr Mahmood Farooqi in a high-profile rape case in India has been remarked in the debate over the meaning of consent of women after a judge set aside the conviction of a Bollywood Film Peepli Live’s 45 years old co-director, Mr Mahmood Farooqi, accused by a 23-year-old American researcher for rape by saying that, “a ” could still signal to unwillingness on the part of an alleged victim.

A feeble no is not a yes in the context of Rape: A question of consent
Mr. Mahmood Farooqui

Judge Mr Justice Ashutosh Kumar said that it is not known during any sexual act in which one of the partners may be a little or less willing or, she may be unwilling. Mr Justice Ashutosh Kumar also observed in his ruling that, “Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.”

A lower trial court had earlier held the 45-year-old Bollywood filmmaker & Co-director Mr Mahmood Farooqi guilty and sentenced him to seven years in jail. An appeal to Delhi High Court was filed, overruled the 85 pages judgment of the lower trial court and held in more than 80 pages in which the court has unfortunately elided over the legal definition of consent while Indian law stipulates that consent must be “unequivocal,” or in other words, absolutely clear.

A feeble no is not a yes in the context of Rape: A question of consent

Doctrine of feeble “NO

The Delhi High Court’s judgment gives the doctrine of feeble “NO” in three aspects-

  • As per the first aspect: When both the parties are strangers to each other, a “no” is a “no”, however feeble.
  • As per the second aspect: When one of the “parties” i.e. woman is conservative, then “mere reluctance” would amount to “negation of consent.”
  • As per the third aspect: When the “parties are in a prohibited relationship” i.e. extra-marital relationship or “persons of letters”, “little or no resistance” combined with a “feeble no’” would not actually mean “denial of consent.” 
A feeble no is not a yes in the context of Rape: A question of consent

The verdict concludes that the victim is not served the justice because the accused failed to accept her consent as ‘No’. The Delhi HC judgment, coins a new principle of “affirmative denial” for “intellectually/academically proficient” and non-conservative women. 

The verdict sets a dangerous precedent both legally and socially in our society. In law, it opens the door for every rape accused to claim that he had mistakenly read the woman’s “No” as a “Yes”.

A feeble no is not a yes in the context of Rape: A question of consent

From this judgment, we must conclude that: a woman’s educational qualifications also matters like there is a difference between educated and uneducated women for having sex. As it seems that for the Delhi High Court, it is the woman’s character (her being conservative or modern, educated or illiterate), not the man’s failure to accept or respect a NO, which carries weight in deciding an appeal against a rape conviction.

The ruling was met with frustration in legal circles because it completely erodes the definition of the consent of women in the context of rape as given in our Law Statutes or Books. It sends out a message that the responsibility for understanding and respecting a “No” does not lie with men; instead of this, the onus is on women to make sure their “No” is understood! It sends out a message that even if a woman fears for her life, she must ensure that she sustains obvious physical injuries so that her violation is recognized as rape.

A feeble no is not a yes in the context of Rape: A question of consent

Conclusion

The High Court acquittal order is wrong on facts and in law and is basically differentiating between the feeble no of uneducated women and the feeble no of educated women.

After this whole Scenario of Delhi High court’s Judgment, It is the duty of the court to tell us that how do we even measure whether a ‘no’ is feeble or strong? What amplitude or frequency of volume will constitute a clear NO? By what kind of act- physical resistance, we have to accompany it?

This judgment does not blur the lines of consent but this judgment erases that line making the whole concept of consensual sex a dream. So, it may be concluded that the court may claim that the affirmative model of consent cannot be applied to all scenarios of sex as rape and in some or certain cases; “positive denial” may remain “dormant.”

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