A woman’s ‘no’, feeble or not, is still NO

The acquittal by the Delhi High Court of the Peepli Live co-director Mahmood Farooqi in a rape case filed against him has shocked feminists — both men and women. The judgement has been criticised on many counts; one, for saying a feeble ‘no’ is not enough, the woman in question is expected to shout it out. And even when she says a firm ‘no’, if the man perceives it as consent, he is not guilty of rape.

Moving into dangerous and sticky ground, the judge seems to have made a distinction between situations when a ‘no’ could be accepted or rejected by the man in question! Both the reasons and the examples given are bizarre and amply reveal the patriarchal mindset that exists in our country. One that believes that even in something as heinous as rape, the woman’s being “conservative” or otherwise can decide the fate of her complaint.

The judgement suggests that in some cases even a ‘feeble no’ will suffice, as when she and the man accused of rape are “strangers”, or if one of them is a “conservative person”. “But (the) 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.”

This is more than just bad English. The logic simply stumps you. How can intellect and education, of the lack of it, ever be considered legal ground for declaring sexual intercourse as rape or just plain sex with mutual consent?

Are we to stomach the premise that the complainant’s being an American — and therefore presumed ‘forward’ — and educated woman came in the way of her no, feeble or otherwise, being interpreted as a real ‘No’. Another questionable part of the judgement reads thus; “and if it was without her consent, whether the appellant could discern/understand the same”. So, if the man is an idiot or imbecile, of the uncertified variety of course, and cannot “discern” that the woman is not willing, he can walk out free?

One can imagine the joy with which defence lawyers representing alleged rapists, will digest the import of this judgement, which can wreak havoc in a country where sexual aggression against women is rampant. It sets a dangerous precedent and deserves to be overthrown at the first appeal. And to think that the lower court had held Farooqi, who said the act was consensual and the two were already in a relationship, guilty and awarded an imprisonment of seven years, which the High Court overturned.

You can’t be blamed for suspecting that the woman’s being in a relationship with the man, as stated by him, could have harmed her claim that she repeatedly said ‘no’, and gave in finally only because she was terrified that she might be killed. And the man was totally drunk when it all happened.

Why do I get a sinking feeling that a good chunk of Indian men, particularly of the “conservative” variety that the judge mentions, will laud this judgement, the legal premises of which hopefully an appeal will throw out?

I have heard too many men, not the ‘conservative’ but the ‘intellectual/educated’ ones, being either dismissive or derisive about women’s complaints of sexual harassment, either at the workplace or outside. They openly express resentment that a woman always gets the upper hand, or an undue advantage, when she makes a complaint about the unwelcome advances or harassment made by a male colleague or friend. Of course, generalisations are odious and all women who make complaints of sexual harassment or rape charges against men are not necessarily in the right always. But let’s admit, in the power equation, the dice is almost always loaded against the woman.

Add to this the kind of stigma that rape still carries in our society, only the odd bravehearts come forward to file complaints or press charges, risking an immediate and unjust judgement of their ‘character’ and lewd comments on how they must have either “invited” it or “deserve” it. Particularly, if the girl is ‘modern’ and doesn’t fit into the accepted norms of the ‘Bharatiya nari’. And if she smokes or consumes alcohol, the sympathy quotient falls further. But of course things are changing as we found in the Varnika Kundu attempted kidnap case, when her being out late at night and enjoying a glass of alcohol was brought in to damn her. Scores of young women posted midnight selfies, a drink in hand, in a welcome and dramatic act of defiance. Let’s say cheers to that!

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