On September 25, a judgment delivered by the Delhi High Court set aside the Saket Trial Court judgment convicting Mahmood Farooqui. In doing this, the court acquitted Farooqui of the rape of an American researcher. Shockingly, it did this by speculating that the accused may not have understood that he was raping her.

The judgement delivered by the Delhi High Court is fairly unique in its blatant contradictions: For half its length, we are led to believe the judge might be sympathetic to the plight of rape victims, only to watch all the lipservice crumble into direct attack on the victim and her experience and testimony. What do we do with a judgment which cites powerful preceding cases that ended in conviction, psychological experts on Rape Trauma Syndrome, and legal cases that question the need for a waterproof testimony from the victim - and YET goes on to dismiss the testimony of a young woman who clearly stated that she did not consent, and offered ample proof of her lack of consent?

Implausibly enough, the judgment feels the testimony of the “sterling witness” can be dismissed on this ground:

"It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.… Instances of woman behavior are not unknown that a feeble “no‟ may mean a “yes‟.”

While having been forced to acknowledge that the victim has Rape Trauma Syndrome and that she is a “sterling witness”, the judgment refused to understand how the perpetrator could have intended to violate/rape. Does this have to do with the fact that it was oral sex, or is it just good old class solidarity?

The implications of the judgment

There is a staggering shift in the judgment.

It begins with hearing the testimony of the victim, who says she was raped, that she did not consent, that the accused overpowered her physically and that she resisted in every way she could or in every way any reasonable woman would.

Suddenly, there is a U-turn and it ends up conjecturing about the mind of the perpetrator, his “cognitive” state, and the possibility that he did not understand that she was not consenting.

This turn is shocking and dangerous. How many more men will claim that they were not in a state in which they could differentiate consent from lack of it?

The future implications of such reasoning are horrific to imagine. Won’t this enable men to claim that since ‘No’ actually means ‘Yes’ according to this judgment, they assumed a no was a yes? Will a woman’s No count as a “real” No only when sworn to and signed in triplicate? Does this allow men to think the sex (bordering on rape) that they have been having all this while can continue because the standards of consent will only always be defined according to their experience, because the accused has to be given the benefit of doubt?

What about the cognitive and psychic state of the woman who experiences this act? What about her understanding that this is not consensual, and that it is not stopping despite her clearly communicating to him by saying no, pushing him away, refusing, pulling up her underwear?

Two steps back?

As it is, we have a set of legal procedures that disavow the nature of rape and interrogate the rape victim’s testimony on the grounds of “independent evidence” – call data records, cab company records, messages and emails, and the testimony of the man’s friends and powerful protectors, because after all, we need “proof”. Add to all this the benefit of doubt given to the man because maybe he didn’t understand when she said she didn’t want it? If a sterling witness's testimony is not enough to convict a rapist, what is?  

Is this then a roundabout way of saying a conviction can only be based on medical evidence, that a man should only be sent to jail when there are signs of brutality and “evidence” of physical injury?

This judge (like so many of the ‘progressive’ civil society people who stood up for Farooqui or refused to stand up for the woman who charged him with rape) seems to have been influenced by the fact that this was a case of forced oral sex (and not peno-vaginal) and that there was no physical brutality (of iron rods and intestines) – thereby quietly wishing away the fact that the violation of rape and the injury of physical hurt are two entirely different concepts and may or may not co-exist.

As feminists who know very well how rape actually happens, we cannot allow the discourse to go back to ‘she shows no injuries and so she wasn't raped’. After three decades of feminist jurisprudence, we could begin battling with courts, institutions and their rational/commonsensical/experiential prejudices all over again, to make them understand what rape is.

Judicial backlash on ‘vindictive’ women?

Unlike the ‘70s and ‘80's though, we face an enemy that takes on many faces and uses many mediums. We have to deal with a backlash well versed in gender speak and sensitive masculinity, and to top it all off, maybe even a backlash by women who feel other women shouldn’t be so fussy. Women who say, “After all, haven’t we all dealt with this and survived?”

A recent PIL filed by Madhu Kishwar in the Delhi High Court says that women are filing false cases motivated by revenge and rejection, that courts convict rape accused on the sole testimony of a woman, without medical corroboration, and that this is "Draconian".

Kishwar’s outbursts are just the tip of the iceberg of disbelief that this case has unveiled and given sanction to, with many progressives speaking for Farooqui in the months before the trial, discussing his ‘good’ character and consequently, the fuzzy nature of consent (subtext: he is “one of us” and therefore can’t be capable of violence, and rape without violence isn’t really rape.)  

What do we make of this desperate attempt to protect the figure of the patriarch (one who wields the power granted by his gendered position) by casting him against the figure of the woman who ‘routinely misuses the law’, the ‘vindictive woman’, the ‘habitual liar’?

How do we understand this particular judicial backlash against the increasing visibility of the discourse on gender justice and sexual violence? Visibility that makes a judge dismiss and trivialise equality as a passing fad and a “buzzword”, and ensures he takes it upon himself to inject ‘reasonableness’, ‘neutrality’, and ‘scientific theory’ (on yes and no, on women’s behaviour and men as initiators of sexual interaction) about how women actually consent.

The vilification of the sexually active woman

In the Tukaram vs State of Maharashtra verdict of 1979, considered by the women’s movement and activists to be a turning point in rape-related jurisprudence, the fulcrum of discussion was the fact that the courts ought not to acquit men of rape because the woman is deemed to have been sexually active and “habituated to sex” (the victim in this case was a young Adivasi girl who was raped by two policemen in Chandrapur).

What has happened to the intensity and historical effects of this concern? Or is the fact that the victim here is a young white woman from another country (in the mind of the judge, “habituated to sex”), rendering her narrative suspect for him and all those others who stand with Farooqui?

This is epitomised in one of the most ridiculous sections of the judgment: “If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of consent. 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.”

So in order to convict your rapist, you need to be:

a) conservative, and of course, offer proof of this conservatism (maybe through long rants against sex on social media or wearing a desi chastity belt to court)

b) some form of “innocent” (and prove that you know nothing about sex and will never try to learn)

c) intellectually unequal to the man (because women who are men’s intellectual equals can’t possibly be raped)

d) safely married (in which case you can be considered your husband’s sole property and no one else should dare to lay a pinky finger on you, forget about oral sex.)

Or if you are none of these things, then after being raped, you must create a huge scene (however scared or confused you are), immediately leave the space (whether night or day, taxis or no taxis), and sort through all your feelings about someone you know having done this to you, and go straight in the same taxi to the police station.

Reluctance to believe women

An acquittal is routine in many criminal cases but if the ground for it is disbelief, and if a progressive discourse contributes to deepening disbelief, then do we need to rethink the nuances in our feminism?

In recent years, feminist discussions around rape laws have included these issues: minimum mandatory sentencing; incarceration; how much jail is too much for rape; whether women should even resort to a paternal criminal justice system; whether women victims should bear the burden of the marginalised identity of the perpetrator who is incarcerated for raping them.

How do we ensure that our understanding of the nature of the crime of rape is not compromised and that we don't forget that even though gender equality may now be a “buzzword", the prejudice against and reluctance to believe the violation experienced by women victims of sexual violence is a very real thing?

The fuzzy nature of consent

Finally, let us directly discuss the fuzzy nature of consent, which appears as the grounds for acquittal. Yes, consent is complicated, sex thrives on ambiguity and risk. But it’s a different story when we patronisingly explain this to women who say that they have been raped. The very same women who know that they have been raped, so deeply that they are willing to survive the misogynist obstacle course also known as the criminal justice system. Are we assuming that these women do not know how to sort through what sex was consensual and what sex was non-consensual in their own lives?

Funnily enough it is in these very cases that the past sexual history and character of a woman are constantly hinted at, both judicially and socially.

It was precisely because of a recognition of the complicated nature of consent (and not a blindness to it) that the victim in this case recognised this act as rape. She recognised that she had not wanted it, had expressed this in several ways (verbally and physically) and yet he had persisted in forcing sex on her. It is the same woman who herself informs the Court that she and the accused has exchanged *consensual* kisses on earlier occasions, some months before the rape. There is thus no defence here that the fuzzy nature of consent and “grey areas” in sex can offer him, and yet those who are discussing consent are using that in his favour.

Miscommunicated feelings end up being his way “out” of culpability. The judgment as well as supporters of Farooqui have conjured this ambiguity out of very thin air and made us lose faith, once again, in women being able to lay some feeble claim on justice.

Views expressed are the author's own.