Decoding
sexual consents in rape cases involving persons who have been maintaining close
relationship with a shared past of physical intimacy can be a tricky
affair. It takes a highly balanced and
nuanced approach to resist the temptation to read the past history of intimacy
into the offence to infer presumed consent.
A close
study of two High Court orders passed over the last week makes one wonder
whether patriarchal sentiments and moral prejudices are at play, at least at
the judicial sub-conscious mind, in dealing with such instances.
Mohammed
Farooqui case.
One is the
rape case involving director and artist
Mohammed Farooqui, who was acquitted
of rape charges by the Delhi High Court early this week. This was the first reported
conviction in offence under Section 376 IPC, after the definition of ‘rape’
under Section 375 IPC was expanded by 2013 amendment to include non-penetrative
sexual acts. The accused and the lady in
the case were close friends; they used to express physical intimacy by
exchanging kisses and hugs. On the day of alleged offence, the accused was
intoxicated and seemingly in a gloomy mood. The lady tried to console him, and
hugged him. Thereupon, the accused forcefully performed oral sex on her.
The acquittal is
on the ground that that the man had no means to know whether the woman was
protesting his sexual advances. In other words, the
woman did not communicate her protest in an intelligible manner. There was an
assumed consent; though the woman was not willing.
But the judgement itself notes that the
woman had pushed the man, when he advanced. And when the man had tried to kiss
her, she had told in clear terms that she wasn't up for it. The following factual findings in para 81
& 82 of the judgment are relevant :- There are some exchanges between
the parties regarding their being good persons in their individuals rights. The
prosecutrix starts feeling motherly towards the appellant. Then the appellant
communicates his desire to suck her. The prosecutrix says „No‟ and gives a
push but ultimately goes along. In her mind, the prosecutrix remembers a
clip from the case of Nirbhaya, a hapless girl who was brutally raped and
killed, when the maelfactor had declared that if she (Nirbhaya) did not resist,
she might have lived.
Isn’t the initial push of resistance
from the woman a sufficient signal of protest? Doesn’t her declaration of ‘No’
to the accused when he tried to kiss unequivocally signify her lack of consent?
However, without
dealing with it, the judgment proceeds to further note as follows.
There is no
communication regarding this fear in the mind of the prosecutrix to the
appellant. The prosecutrix makes a mental move of feigning orgasm so as to end
the ordeal. What the appellant has been communicated is, even though wrongly
and mistakenly, that the prosecutrix is okay with it and has participated in
the act.
An important point
is being missed here- that the woman had conveyed her protest through verbal
(‘No’), and non-verbal( push) communication. When accused proceeded and made
physical contact with the victim ignoring the protest, there occurred
commission of offence at that very moment. Whether the victim made any
resistance subsequently and whether she enjoyed the act are of no significance,
for the commission of offence was complete the moment when accused made initial
physical contact despite the woman’s protest.
The Court
trivializes the impact of the said initial protest made by the victim by
suggesting that it might have been a feeble ‘no’. The Court did advert to
proviso to explanation 2 of Sec.375 IPC which states to the effect that lack of
physical resistance from the woman should not be construed as consent.
However,the Court carves out a new exception for this principle by stating that
a different yardstick of consent is applicable to ‘persons of letters’ who are
‘intellectually/academically proficient’.
The following observations of the Court in that context are telling. But
same would not be the situation when parties are known to each other, are
persons of letters and are intellectually/academically proficient, and if, in
the past, there have been physical contacts. In such cases, it would be really
difficult to decipher whether little or no resistance and a feeble ‘no’, was
actually a denial of consent. (para 78). It is highly doubtful whether this
judicially created exception is legally sound. Can the benefit of Explanation 2
to Section 375 be denied to a woman who is a person of letter, having
intellectual/academic proficiency who used to have physical contact with the
accused before? Also, this was not a case of no resistance by the woman. There
was protest; but the Court chose to ignore the protest, by stating that the
protest was not sufficient to convey lack of consent. One is left to wonder as
to what more a woman is required to do than a ‘push’ and a statement of ‘No’ to
signify lack of consent to sexual act.
Also to be read
along with this is a problematic observation which occurs in an earlier part of
the judgment that ‘instance of women behaviour are not unknown where a
feeble ‘No’ may mean a ‘Yes’(para 78). Problematic on two counts:- first,
to import unverifiable personal knowledge into adjudication process is not a
sound approach. Second, it tends to send a wrong signal to the society. Deep
rooted patriarchy has designed many of the male minds in such a manner to
harbour a sense of entitlement with respect to sexuality, and this observation
could embolden such minds to indulge in predatory and stalking practises upon
women.
It must be said
that the Court did strain a lot to make a scrutiny of fact situation, and the
judgment does empathise with the victim.
But ultimately, one gets the feeling that the male perspective trumped
all other considerations by giving a benefit of doubt to the accused on ground
that he misread the situation to presume consent. The other observations in the
judgment to the effect that ‘in
normal construct man initiates sexual acts’, ‘he performs the active part
whereas a woman is by and large, non-verbal’, ‘a woman’s feeble no may mean a
‘yes’’ etc seem to suggest that situation was approached and studied only
through a male perspective, and that strong gender bias was at play in the
judgment.
To its credit, the
judgment makes a laudable observation that the basis of any sexual relationship is equality and consent. Unfortunately, the observation did not have
much impact on arriving at the end result.
The Jindal
University students case.
The judgment of
the Delhi High Court had a sophisticated tenor in language, and was considerate
and solicitous towards the agony of the victim. However, the order of Punjab
and Haryana High Court in the rape case involving Jindal Global University students contains
not so charitable observations on the victim, bordering on victim-shaming.
There, a woman student was gang-raped by three of her friends. She had a past
relationship with one of the men involved, and he had obtained her nude
pictures in the course of their relationship. After the relationship was
broken, the man black-mailed the woman with the nude pictures, and threatened
her into submitting to sexual acts with himself and two others. The trial court
convicted three of them for offences punishable under Section 376D IPC.
While allowing the
applications by the convicts seeking suspension of sentence, the Court made
some observations, which were best avoided. It was observed as follows :- A perusal of the statement of the victim as
also her cross-examination reveals a promiscuous relationship and sexual
encounters with all the three accused persons over a period of time and at no
stage did she ever make any attempt to reveal her mental state to either the
authorities in the college or to her parents or her friends. Irrelevant
comments were also made in the judgment about her smoking and drinking habits. It
was further observed that the entire
crass sequence actually is reflective of a degenerative mindset of the youth
breeding denigrating relationships mired in drugs, alcohol, casual sexual
escapades and a promiscuous and voyeuristic world.
The Court was
persuaded to think that it was an instance of casual sex, as clear from the
following reason stated for suspending sentence. The testimony of the victim does offer an
alternate story of casual relationship with her friends, acquaintances,
adventurism and experimentation in sexual encounters and these factors would
therefore, offer a compelling reasons to consider the prayer for suspension of
sentence favourably.
To trivialize the incident of a woman forced
to indulge in sexual acts against her will due to black-mailing as adventurism
and experimentation in sexual encounters is quite unfortunate. While
suspension of sentence is a matter of judicial discretion, it would have been
judicious on the part of the Court to refrain from making such sweeping remarks
and characterizations, at least at the stage of admission of appeal against
conviction.
The observations in both the cases makes one
wonder whether gender-based beliefs and patriarchal prejudices are at play in forming
the bedrock of reason in judicial outcomes in rape cases. In this context, the
observations in the Article “Will Women Judges Matter?” authored by Madame Justice Bertha Wilson,
Judge, Canadian Supreme Court are worthy of reference :- The studies show overwhelming evidence that
gender-based myths, biases, and stereotypes are deeply embedded in the
attitudes of many male judges, as well as in the law itself. Researchers have
concluded that gender difference has been a significant factor in judicial
decision-making, particularly in the areas of tort law, criminal law, and
family law. Further, many have concluded that sexism is the unarticulated
underlying premise of many judgments in these areas, and that this is not
really surprising having regard to the nature of the society in which the
judges themselves have been socialized.
Probably, it is high time to seriously debate
and consider the suggestion that rape cases be tried and heard by women judges;
as it can bring in more gender sensitivity in the process.
Published in LiveLaw on 27.09.2017
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