Consent At The Core

Mahmood Farooqui verdict lays down a new paradigm for determining sexual assault.

Written by Nandita Rao | Updated: September 29, 2017 8:22 am
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The basic principle of criminal law is that the benefit of doubt is given to the accused and unless the evidence is beyond reasonable doubt the person accused of a crime is entitled to an acquittal.
In the context of sexual assault, the Supreme Court, by way of several judgments, has given a special status to the testimony of a victim of sexual assault by holding that the uncorroborated testimony of “Indian women” is adequate evidence for conviction.

The reasons attributed by the SC for concluding that “Indian women” are unlikely to lie about a sexual assault are laid out in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat. The Court held: “In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury… We must not be swept off our feet by the approach made in the western world which has its own social milieu, its own social more(s), its own permissive values and its own code of life. Corroboration may be considered essential to establish sexual offices in the back drop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmoshphere… Without… overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault… Only very rarely can one conceivably come across an exception or two that too possibly amongst the urban elites because (1) a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had even occurred (2) She would be conscious of the danger of being ostracised by society… including her own family members, relatives, friends and neighbours.”

Thus, most rape convictions in India are based on the sole testimony of the female victim without corroboration by medical or any other evidence. However, with time and amendments to penal law — criminalising even non-penile vaginal penetration as rape — the issue of a victim of rape losing her chastity is no longer a certainty. With the law now accepting “live-in relationships”, premarital sex is no longer taboo and despite the continued prevalence of patriarchy women have to some extent gained the confidence to assert a sexual autonomy that doesn’t restrict sexual activity only to their husbands. The question that needs an urgent response is whether we can continue to rely on a judgment that chooses to accept the uncorroborated testimony of a woman on the reasoning that “Indian women” unlike “Western women” are not living in a promiscuous social ecology or would reliance on such a judgment now seem outdated?

Further, with the growing demand to criminalise marital rape and the increasing number of cases arising from allegations of sexual assault by friends or former sexual partners, the issue of a woman’s chastity is less significant than the issue of her dignity. Therefore, courts are now more often confronted with the question of whether the act was with the consent of the women than the question of whether the act occurred at all.

It is in this context that the recent judgment of the Delhi High Court in Mahmood Farooqui vs. State is significant in as much as the court has sought to determine the issue of consent in the context of a pre-existing non-platonic relationship. The HC has distanced itself from past precedent where the testimony of a prosecutrix is disbelieved simply because of minor inconsistencies in her statement. It has also kept away from making any sweeping generalisations on Indian vs. Western culture that is a welcome change from the past misogyny. The court has instead sought to analyse the evidence holistically from the perspective of “whether it could be said beyond reasonable doubt that the Prosecutrix made the accused aware of the absence of her consent which she was feeling internally” in the context of the proviso to Section 375 of the Indian Penal Code (which criminalises rape) which states that, “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate in the specific sexual act”.

This judgment, in my view, is significant because it has laid down a new test that can enable the determination of whether a sexual act between previously consenting partners was on a given date non-consenting.

The writer is a lawyer practising at the Delhi High Court. Views expressed are personal

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