No means no: consent and our courts

Two recent court orders on sensational rape cases have indicated that there may be gaps in understanding consent and what it entails.

Published: 27th September 2017 04:00 AM  |   Last Updated: 27th September 2017 12:19 AM   |  A+A-

Two recent court orders on sensational rape cases have indicated that there may be gaps in understanding consent and what it entails. The first case is that of the Punjab and Haryana High Court order suspending the sentence of three youths convicted of rape of a fellow student. While the order stated that it would not go into the merits of the verdict  that is being appealed, it did make some sweeping statements about the relationship between the accused and the victim.

The case involved a student who said she had been blackmailed into having sex with the main accused and his friends. The court in dealing with the matter, did not seem to view her as a victim at all, rather stating that her charges lent themselves to an alternate conclusion of “misadventure stemming from a promiscuous attitude”.

The other case is the Delhi HC judgment overturning the conviction of filmmaker and Dastangoi exponent Mahmood Farooqui. He was convicted for orally raping an American student. The HC in its verdict indicated that despite the victim’s acknowledged consistency: “It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.”

These orders take back the women’s movement by decades, the first by making the morality of the victim a point of relevance in rape, and the second by stating the victim may not have communicated her refusal of consent effectively. Must women enduring sexual assault either out of fear, coercion or blackmail—all of which legally negate consent—risk their lives by vociferously demonstrating lack of consent? While no innocent person should be punished, and no one accused be denied their right to fair trials, it is worth asking if the courts have not fixed unreasonably high standards for victims of sexual assault—a grossly underreported crime—to meet.


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