Another decision lets down women!

Kunika

This time a Fulbright scholar pursuing PhD from Columbia University has been told that the “forceful” act of her “good friend” of “taking away her sexuality”, even after she said “no”, did not amount to rape. Why? Because she failed the ‘test of denial’. 

Apparently, she said ‘no’. 

But that ‘no’ was not strong enough to mean a ‘no’, rather it meant ‘yes’. Even when she was unwilling and explicitly expressed that to the accused, what got communicated to him was that she was willingly consenting and willfully participating in the act. Surprisingly, she communicated her consent by repeatedly saying no !

A `feeble’  no is yes?

The judgment of the Delhi High Court has reasoned it out by creatively highlighting the nuanced shade of a “feeble no” or “feeble hesitation” between an express Yes and No. 

A “feeble no’’ has been defined to mean a “yes” in the ``instances of woman behavior’’ and it is further explained that “feeble hesitation can never be understood as a positive negation of any advances by the other partner”. 

The court has, therefore, cast a duty upon the prospective victims in each case to ensure that there is a loud and clear NO even if she was in physical and emotional trauma. 

As per the decision, this categorisation comes into play when “the 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 which case little or no resistance and a feeble no would not mean a denial of consent”. 

Here are three examples to check how consent would figure- 

Parties known to each other: A 10 year old girl knows her step-father very well. However when he tries to force himself she is not able to resist and she falls in “feeble no” category.

Persons of letter and intellectually proficient: A PhD scholar is groped from behind by her university tutor in his cabin; she gets incapacitated by him and is unable to resist.

Past physical contacts: A wife gets divorce from her husband on the ground of cruelty and out of revenge the husband enters his former wife’s house and tries to sexually assault her. Due to fear the woman is incapable of any resistance. 

All these cases would now fall squarely within the above mentioned exceptional categorisation carved out by this decision. The women would be assumed to have consented by showing no resistance or feeble hesitation. It would not matter that she was overpowered by the perpetrator in those situations and could not fathom the correct manner of saying ‘no’. 

Coerced consent

The Court, erroneously, failed to consider that in many cases the victims ‘go along’ not because they are consenting or wish to participate in the act, but because the perpetrators are often forceful and the victims fear that something bad or worse would happen if they do not keep silent, as it happened in the present case. The victim had duly communicated her denial to the accused by saying no when he asked her and had also given him a push, but she went along as she was afraid. She was not consenting, she was fearful. There was no consent of any kind by any stretch of imaginative interpretation of the term as per the Indian Penal Code. 

This decision would also have a bearing on the issue of marital rape, which would be an alien concept post the invention of the different shades of ‘no’. Invariably, in all cases of marital rape the degree of ‘no’ falls in the “feeble no” category. The absence of any real resistance would, as per this judgement, “re-affirm willingness” as “an expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.” Moreover, due to past physical contact there would be an element of assumed consent and it would not matter that one of the partners to the act is a bit hesitant. Such feeble hesitations coupled with the history of physical contact would put to rest the whole debate on marital rape. 

However, it is not the first instance that the Courts have, instead of seeing women as equal autonomous beings, viewed cases of sexual assault through the male-centric lens. 

Stereotyped reasoning 

In 1979 a young tribal girl who was raped by police officers in the police station was termed a liar and disbelieved as she had failed to show a resistance strong enough for the judges to believe that she was violated. The Supreme Court , held that “her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission”.”

Recently, Punjab & Haryana High Court handed out a stereotypical and prejudiced understanding of a rape case. The Court, while suspending the sentence of the three accused, wrote a masterpiece on victim shaming. She was alleged of “casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters" and a case of “misadventure stemming from a promiscuous attitude and a voyeuristic mind" as the “narrative does not throw up gut wrenching violence that normally precede or accompany such incidents". 

The woman was not only violated by her ‘friends’.   

The Courts always approach rape cases in a stereotypical manner where a sexual assault must always be preceded by violence and resistance, the absence of which is understood to be consent. 

Such consent jurisprudence developed by the Courts has devised ominous propositions which could turn the tide in favour of the perpetrators in the future.   

The writer is an advocate in the Supreme Court