For No To Be No

In Mahmood Farooqui case, past intimacy makes issue of consent more complicated

Written by Madhavi Goradia Divan | Published:October 4, 2017 12:11 am
consent, consensual physical relationship, intimacy, rape, sexual assault, Mahmood Farooqui case, Delhi High Court, Mahmood Farooqui vs State Mahmood Farooqui was granted bail in a rape case.

The recent judgment of the Delhi High Court in Mahmood Farooqui vs State (Govt. of NCT) shows how much harder it is to prove rape where the parties have been in a relationship of physical intimacy. In theory, consensual physical intimacy in the past ought to make no difference if there is lack of consent or unwillingness on the woman’s part to the particular sexual act constituting rape. This is because the statutory definition of rape posits lack of consent or willingness to participate in the specific sexual act in question. However, in practice, past intimacy of a consensual nature could cast a shadow on the question of whether there was, indeed, unwillingness on the woman’s part, to the specific sexual act she complains of and whether she adequately conveyed that to the man. This may have a bearing on the current campaign to outlaw marital rape where physical intimacy between spouses is presumed.

Between strangers, lack of consent on the part of the woman is much easier to establish. But when the parties have had consensual encounters, the judgment in Mahmood Farooqui suggests that the communication of unwillingness by the woman has to be more emphatic. The court rightly does not arrive at a conclusion that there was consent on her part nor does it presume consent based on past consensual encounters. However, the court arrives at a conclusion that there was a failure of adequate and unequivocal communication of unwillingness on the part of the prosecutrix and therefore gives Farooqui the benefit of doubt.

Farooqui’s case resulted in an acquittal because the HC found that given the past encounters of consensual intimacy, the avowed attraction that the prosecutrix had for the appellant, her conduct before, during and after the incident might have made it difficult for him to glean an unequivocal unwillingness on her part. What made matters worse was her acute awareness of his fragile emotional state, his alcoholism and his inebriated condition at the time (she even mixed a drink for him shortly before the incident). Not that any of these factors could justify a man foisting himself on an unwilling woman. It is the failure to communicate her resistance, and instead her call to “go along” with it, according to her, to avoid more harm, even “faking an orgasm” so she could be done with it sooner, that contributed to his acquittal.

One may ask: Is it fair to expect a woman to communicate her resistance, loud and clear, when she is under the overpowering physical strength of a man? In the vast majority of cases, probably not. In a situation like the Delhi December 2012 case, or indeed, even in a case of not such brutal violence, it would be unrealistic to expect a woman to offer any real or effective resistance. But the question is, in the facts of this particular case, whether the prosecutrix was rendered so disempowered as to be in no position at all to protest or extricate herself from the situation without suffering harm.

The judgment does not seek to draw sweeping generalisations, nor should it be stretched to be authority for the proposition that “no” means “yes”. That would do great harm to women. Giving Farooqui the benefit of doubt in the circumstances was correct.

What we must take away from the judgment is its sensitive examination of Rape Trauma Syndrome — the intense trauma the prosecutrix suffered for months after the incident, her sense of violation and even betrayal, by the person she was attracted to and cared about. The judgment also acknowledges the reality that victims are not able to rush to file a complaint immediately after; that the trauma and outrage, particularly when the perpetrator is someone you know, may take may take longer to come to grips with and even longer to muster the strength to file a complaint. And therefore, the court did not hold against her, the delay of several months she was accused of in filing an FIR. What went against her was that even though she might have been very unwilling, she failed to convey to him, a resounding “no”.

The writer is an advocate, Supreme Court
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