Peepli Live co-director Mahmood Farooqui was acquitted on 25th September, of all charges of rape by the Delhi High Court, overturning the verdict of a lower court which sentenced the accused for seven years in jail.
While we can’t argue the merits of the case, what we found extremely shocking were the arguments made by the Delhi HC’s Justice Ashutosh Kumar, while acquitting Farooqui.
Justice Kumar observed that consent is complicated and can be subject to erroneous interpretation especially when the man and woman in question have enjoyed some kind of physical intimacy in the past.
We’ll break down some of the troubling portions of this judgement into an appropriately simple language. And we’ll try not to oversimplify it.
Absence of any real resistance of any kind re-affirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.
– which basically translates to a feeble ‘no’ does not mean ‘no’.
It is not unknown that during sexual acts, 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.
– it’s hard to believe that a learned judge has actually repeated himself about how someone’s feeble hesitation about getting intimate, does not constitute a ‘no’. He’s expressly stated that one of the parties is bound to be a ‘little less willing’ and he/she can be forced to participate in such a situation.
A day after the occurrence, the prosecutrix cannot be said to be under any fear of reprisal or reaction and her not approaching the issue with the appellant is rather surprising.
– translating to that an alleged victim of rape not communicating with her alleged rapist is odd, and hence the accused is not guilty.
The consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms.
– Don’t even get me started on this. How is hesitation or reluctance (however feeble) NOT a no?
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….But same would not be the situation when parties are known to each other
– Did he just say that? Did he just say that when the parties are not strangers, the victim’s ‘feeble no’ is not an indication of her consent?
Obviously, Twitter was outraged at this bizarre understanding of consent:
No means No. Am shocked beyond words at the reasoning of this judgement. WTF is ‘a feeble no’? Unbelievable. https://t.co/pt07PbbeRP— Amit Varma (@amitvarma) September 25, 2017
It’s incredibly disheartening and disappointing to see a member of the judiciary not understand consent. No wonder, the rest of the country doesn’t either. It is NOT complicated. Any kind of a negative, hesitation or discomfort – is an absolute no.