Guest post by GARGI MISHRA AND SHREYA MUNOTH
Do a woman’s attire, appearance, sexual history or prior relationship with a perpetrator of sexual violence constitute a valid defence for a perpetrator of a sexual offence? Does the meaning of consent vary for educated women? The law, as it stands, doesn’t permit these factors to be taken into account while adjudicating crimes of violence against women nor does it prescribe varying standards. Unfortunately, however, deeply ingrained patriarchal mindsets rear their ugly heads ever so often flouting express statutory proscriptions, most recently demonstrated by two judgments delivered in the last fortnight dealing with rape.
The Punjab and Haryana High Court suspended the sentences of three students granted by the trial court for the rape of another student. The basis for this suspension, amongst others, was the victim’s “misadventures and experiments”, her “promiscuity” and the absence of brutal violence accompanying the sexual assault. Close on the heels of this, the Delhi High Court, on appeal, acquitted Mahmood Farooqui, a filmmaker, overturning the trial court’s verdict of finding him guilty of rape having performed forced oral sex on a visiting woman scholar. While so doing, the Delhi High Court purposively misinterpreted the position of law on what constitutes consent and seems to have been largely influenced by the victim’s previous relationship with Farooqui, her being educated (a “woman of letters”), the supposed feebleness with which she said ‘no’ to the sexual act, and the fact of Farooqui’s bipolar disorder.
The legal framework
After the brutal gang rape and murder of a young woman in Delhi in 2012, a committee headed by Justice J.S. Verma was constituted to recommend changes to laws dealing with violence against women. The definition of the offence of rape in the Indian Penal Code has undergone significant changes after the enactment of the Criminal Law (Amendment) Act 2013, based on the recommendations made by this committee. Before 2013, rape was understood as sexual intercourse (i.e. peno-vaginal intercourse only) by a man with a woman without her will or consent. Significantly, the 2013 Act expanded the definition of rape to include not just sexual intercourse, but also acts of forced oral sex, anal sex and digital penetration. An explanation has also been added to define consent in the Indian Penal Code. Consent now means an unequivocal voluntary agreement to participate in the specific sexual act, conveyed by the woman through any verbal or non-verbal communication. The Justice Verma Committee took into account the suggestions made in the United Nations Handbook for Legislation on Violence against Women, which recommended that legislation on sexual assault must require the existence of “unequivocal and voluntary agreement”. The Handbook also cautioned that defining sexual assault in terms of lack of consent has sometimes, in practice, resulted in placing a burden on the prosecution to prove beyond reasonable doubt that the complainant-victim did not consent to the sexual act, thus resulting in secondary victimization of the complainant. In order to prevent and mitigate such secondary victimization, it recommended that legislation must also require the accused to prove the steps that he took to determine if the complainant had consented. However, the recommendation made by the Justice Verma Committee, and the subsequent amendments in law, do not incorporate the test of reasonable belief in consent which places the burden on the accused to prove that he took measures to ascertain consent of the complainant. The Delhi High Court’s decision pertaining to Farooqui exposes the dangers of this omission.
The 2013 Act also brought about changes in the evidentiary framework relating to sexual offences. Section 53A and an additional proviso to Section 146 of the Indian Evidence Act were introduced specifying that a victim’s previous sexual experience with any person is irrelevant for the issue of consent or the quality of consent.
The judicial discontents surrounding consent
The Delhi High Court was confronted with the question of whether Farooqui had sexually abused the complainant without her will and consent. The Court, in its judgment, emphasizes that consent must be given for each sexual act each time, it cannot be assumed and that it must be affirmative in clear terms. However, it goes on to say that “instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’”. As per the Court’s understanding, such instances of “woman behaviour” are apparently the case when the parties are educated and are “intellectually and academically proficient”, have known each other, and have had a prior sexual relationship. In such cases, it would ostensibly be difficult to consider lack of resistance and a “feeble no” as a denial of consent. It rejects the affirmative model of consent (“yes” means “yes” and “no” means “no”) as it reasons that in some cases there can be “affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other.” Examining the facts of the case, the Court notes that the complainant said no (this being the “feeble no”) to Farooqui’s request for performing oral sex on her, but “ultimately went along”; that she did not communicate her fear of being hurt if she resisted Farooqui; that she feigned an orgasm; and in such circumstances Farooqui had been communicated that the complainant had consented to the act and he did not have the opportunity to know that the complainant was under fear. The Court, despite no such plea taken and lack of evidence, also attributed Farooqui’s inability to accurately perceive any communication from the victim of her unwillingness to his acts, to his ‘bipolar disorder’. One can only speculate on the legal basis for this line of argumentation proffered and accepted by the judge.
This (mis)understanding of consent actively defies the present statutory and judicial framework applicable to rape, force and consent. The Court firmly places the burden of clearly communicating denial of consent on a specific group of women (educated “women of letters” who have had prior sexual relationship(s) with the man) who have to emphatically and stridently ensure that their partner understands that they do not consent to the sexual act, and who have to overcome their fear of being hurt or injured by the man to tell him that they do not want to participate in the sexual act. The Court seems to view men in such relationships as having the right to assume unfettered access to such women’s bodies, and there must be a strong vocal communication by the woman of the fact that they do not have such unfettered access. This militates against the hard-fought battle of women’s rights activists and the current law on consent, which calls for consent to be unequivocal and explicitly provides that lack of physical resistance by the woman cannot be held to be constitutive of consent. The law also does not distinguish between different groups of women and their supposed varying abilities to communicate consent. The judgment places no responsibility on the man to ensure that the woman has in fact consented to the sexual act, and instead gives him a defence to a charge of rape by arguing that he did not “have the opportunity to know” that the woman had not consented.
As recommended by the United Nations Handbook, placing lack of consent as central to the offence of rape must also be accompanied by an evidentiary burden on the accused to prove the steps that he had taken to ascertain consent, as is the position in UK and Canada. This provision is not explicitly recognized in Indian law, and ill-considered judgments such as the Delhi High Court’s order spotlights the need for such a provision.
Evolving sexual politics and regressive judicial attitudes
The Delhi High Court’s judgment also betrays a deep confusion about changing sexual politics which have given women autonomy and agency over their bodies and choices. It refers to the gender binary and notes how men usually initiate sex and women play a passive and non-verbal role, and this gendered socialization affects the way consent is communicated. However, as per the Court’s understanding, modern notions of equality have changed such sexual dynamics and such assumptions about consent cannot be made. But does gaining “equality” translate into burdening women with the task of ensuring that they are not raped?
Judicial ignorance about evolving sexual norms is also demonstrated in the recent decision of the Punjab and Haryana High Court. Three men were convicted of charges of gang-rape and criminal intimidation of a fellow student. The victim had recounted how she had been forced to send her pictures in the nude. The perpetrator used these photographs to blackmail her into forced sex with him and his friends. She also recounted how she was forced to buy and use a sex toy so that her perpetrator could gratify himself . The High Court suspended the sentence of the male students terming their conduct as a “behavioural aberration” and as reflective of the “degenerative mindset of the youth”. However, when it came to the victim, the Court considered that her “casual relationships with men” and her “adventures and experiments in sex encounters” were compelling reasons to suspend the sentence of her perpetrators. The Court was of the opinion that as victim’s narrative did not indicate “gut-wrenching violence”, the sentences should be suspended.
No country for women
These regressive judgments fundamentally fail to recognize how sexual offences strip women of their very bodily integrity. In accepting various stand-ins for consents, such as education and sexual experience, the Courts, not only ignore the law, but also perpetuate harmful stereotypes about women’s sexual autonomy and place onerous and unacceptable burdens of proof on the victims. These judgments ensure that men, especially if they are upper-caste or have high social standing, will be excused for their abhorrent conduct, with a mere slap on their wrists, if at all. Equality will only remain a “buzzword” and an empty constitutional ideal, while in practice, women will continue to be treated as second-class citizens by the justice delivery system.
The authors are feminist lawyers based out of Delhi