Source : India MediaOn September 25, Justice Ashok Kumar of the Delhi High Court set aside a lower court order convicting “Peepli Live” co-director Mahmood Farooqui of raping a US citizen. The judgment said it was doubtful if there was consent for the sexual act and that it was doubtful if that consent was effectively communicated. It said it was even doubtful if the incident ever happened the way the victim narrated it.
Our attitudes towards women and rape have not changed a bit. Take the Delhi HC setting aside a lower court conviction of Peepli Live co-director Farooqui for raping a woman. The judgment does not make sense at all. It makes lots of assumptions; believes in stereotypes and does not believe the rape victim at all.
If the woman is educated, progressive, liberal, easy-going, does not have inhibitions about sex, has a balanced mien, then she is difficult to believe!!
The victim in this case begins her communication to Farooqui, after the alleged rape, like this:
“I tried calling you, but was unable to get through, I want
to talk with you about what happened the other night. I
like you a lot. You know that I consider you a good friend
and I respect you, but what happened the other night
wasn’t right. I know you were in a very difficult space and
you are having some issues right now, but Saturday you
really went too far. You kept asking me if you could suck
me and I knew you were drunk and sad and things were
going awful. I knew that this wasn’t going to help things
and I told you many times I didn’t want to. But you did
become forceful. I went along, because I did not want
things to escalate, but it was not what I wanted. I was just
afraid that something bad would happen if I didn’t. This is
new for me. I completely own my sexually and I consider
you a good friend. I like you. I am attracted to you, but it
really made me feel bad when this happened. I haven’t
known what to say to you since then, I wasn’t sure if I
would say anything. In the end I consented, but it was
because of pressure and your own force physically on me.
I did not want things to go bad. I have only decided to tell
you how I feel for your own well being. I am afraid that if
you don’t realize that this is unacceptable, you may try
this on another woman when you are drunk and she will
not be so understanding."
Does the tenor of the communication raise doubts about the victim's character and attitude? To me, the opening paragraph suggests she is a solid woman who is mature and who is neither confused nor agitated. She was handling a sexual exploitation issue involving a friend -- that was something that shocked her, but she did not lose he sense of balance and proportion. Nor, at the same time, was she soft on him. Had she raved and ranted, abused him, vandalised his house, in fact behaved like a madcap, would she have stood a better chance of being believed? Pathetic.
So, we have a rape case where the High Court took a diametrically opposite view from the lower court. The judgment raises a number of doubts and throws up an equal number of assumptions – these form the basis of the judgment.
A deconstruction of the judgment, point by point, raises a point: Is there a stereo-type (i) format of rape (ii) format of consent or refusal (iii) format of the victim’s attitudes and reactions after rape (iv) format of no-possibility of rape where the man and the woman are close friends, and so forth? It seems that if the victim does not conform to a “stereotype”, she is in trouble.
Here is the deconstruction, based on the judgment, without attributing any motive either to the judgment or the learned judge:
The victim to Farooqui:
Victim, March 30, 2015: I knew that this wasn’t going to help things and I told you many times I didn’t want to. But you did become forceful. I went along, because I did not want things to escalate, but it was not what I wanted. I was just afraid that something bad would happen if I didn’t. This is new for me. I completely own my sexually and I consider you a good friend. I like you. I am attracted to you, but it really made me feel bad when this happened.
Victim, March 30, 2015: I want the best for you, whatever that is, but I also need you to know doing what you did the other night is unacceptable. I hope this doesn’t affect our friendship, but am willing to deal with the repercussions if it does.”
The victim to Farooqui, which communication was read by the latter’s wife:
Victim, April 12, 2015: You were supposed to be my friend. Instead you manipulated me. You hurt me. I said no. I said no many times. You didn’t listen. You pinned my arms. You pulled my underwear down.
Victim, April 12, 2015: In the past two weeks I have blamed myself. I have spent the last two weeks crying, processing. I have thought about death.
Victim, April 12, 2015: I have been trying to figure out what I could have done differently, but I couldn’t do anything differently…..I have spent the past two weeks protecting you, like I did that night. The only thing I know is I didn’t do anything wrong but that doesn’t matter. I am xxxx scared now. I am xxxx screwed up now.
Victim, April 12, 2015: I used to own my sexuality. You took that from me, you forced me to do something I did not want to do. I stopped struggling because I was scared. I wanted to get out. I did get out. So remember this, what you did that night wasn’t one night, what you did that night continues to affect me and my suffering, my pain. It’s on your hands, when I carry this forward in life. It is your sin that I carry forward. It is you sin that I have to overcome. You disgust me……”
Farooqui’s wife to the Victim:
Anusha, April 12, 2015: I chanced upon your email you sent Mahmood today…I am deeply disturbed by your email. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.
Anusha, April 12, 2015: You’d obviously wonder why I have not confronted Mahmood with this but instead I am writing to you directly. The reason for that is that Mahmood is in a rehab. I don’t know how and when it would be appropriate to speak with him. The issue is also complicated by the fact that he is a Bi-polar depressive
Anusha, April 12, 2015: I really don’t know how to express how responsible I feel. I have already spoken with his psychiatrist, and we both feel that this matter should be reported to the authorities if you so wish.
Anusha, April 12, 2015: Please find me and his family with you in the process of healing, as I hope the process will be of healing.
Justice Ashok Kumar, at point 19 of his Judgment, refers to the communication between the two women:
19….The wife of the appellant had apologized for what had happened to the prosecutrix. The prosecutrix also replied to the e-mail (Ex.PW3/C-12), telling the wife of the appellant not to blame the bipolar disorder of her husband for the sexual assault on her and that rape and sexual assault is executed with power.
Communication between the two women; the Victim’s proposed action and the Wife’s reaction:
Victim, April 12, 2015: Mahmood is the only one responsible. As you can see I am angry and hurt and processing this is very difficult right now. I cannot do it on my own at the moment and I do not have the resources in India to figure out how to begin the healing process, so I am leaving tonight to go back to New York. I need to be around my family and my colleagues. I need to get help and support for this.
Victim, April 12, 2015: Just please do me a favour and do not blame this on his bi-polar condition, at least in my presence. I know about the condition, but sexual assault has nothing to do with bipolar and everything to do with power. The assertion of power over another human being.”
Anusha, April 15, 2015: I am glad to know that you will be among your friends and family for the moment. I hope that you will be able to overcome this horrible incident. As I said before, his brothers and I will completely support you in whatever you wish to do about it
Anusha, April 15, 2015: I understand how angry you must be and therefore misread my categorical position on such matters. The reason I mentioned Bi-polar is because that is the reason why I don’t have access to Mahmood and therefore I am unable to confront him at present.
The crux of Justice Ashok Kumar’s judgment:
46. The history of intimacy and the unabashed liking/attraction of the prosecutrix towards the appellant may have given an impression to the appellant of consent. The orgasm which was feigned by the prosecutrix, avowedly for the purposes of preventing further damage to her, may have been taken by the appellant as willingness on the part of the prosecutrix because it understood/misunderstood as a non-verbal communication of consent. Absence of any real resistance of any kind re-affirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.
The judge explains what is feeble consent or feeble hesitation on the part of a victim alleging rape:
47. In the present case, the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant. If that were not so, the prosecutrix would not have told the appellant that he had gone too far on that night. At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. 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.
The judgment finds that the Victim’s “understanding” disposition following rape is “surprising”:
48…A person who has been violated against her wishes would not be so understanding as to confront the appellant with such simple reproach. No communication on the next day between the prosecutrix and the appellant further buttresses the aforesaid argument. A day after the occurrence, the prosecutrix cannot be said to be under any fear of reprisal or reaction and her not approaching the issue with the appellant is rather surprising.
The judgment makes critical assumptions about the Victim’s attitude on the basis of her post-rape communication:
77. The WhatsApp communication between the prosecutrix and the appellant on 30.03.2015 signifies that what happened in the night of 28.03.2015 was not acceptable to her because it was something which she never wanted. The communication further reads that the appellant, on that night went too far. This obviously means that there were some earlier encounters which may not have been of such intensity or passion but physical contact in some measure was accepted. Under such circumstances, this Court is required to see as to what was communicated to the appellant. It is a matter of common knowledge that different persons have different inclinations for sexual activity and immediately preceding the act, there are different ways of people of responding to the advances, entreaties or request.
Another critical assumption about women in general and their consent or refusal for sex:
78. Instances of woman behavior are not unknown that a feeble “no‟ may mean a “yes‟. ….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.
The judgment refers to the Victim’s “motherly” feeling and the defendant’s want to “suck her” and links it to the Nirbhaya syndrome:
81….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 malefactor had declared that if she (Nirbhaya) did not resist, she might have lived.
The judgment clearly states it is not known if there was consent and if so, for which “particular move”:
83. The questions which arise are whether or not there was consent; whether the appellant mistakenly accepted the moves of the prosecutrix as consent; whether the feelings of the prosecutrix could be effectively communicated to the appellant and whether mistaking all this for consent by the appellant is genuine or only a ruse for his defence. At what point of time and for which particular move, the appellant did not have the consent of the prosecutrix is not known. What is the truth of the matter is known to only two persons namely the appellant and the prosecutrix who have advanced their own theories/versions.
The judgment refers to various “models” of sexual consent but does not take the description to a logical end:
84….There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in an universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other.
The judgment makes an assumption about “yes” and “no” not exactly being “yes” and “no”:
85. In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no…..However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent.
The judgment raises the gender factor in sexual consent without clarifying why it was raised:
85….There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus gender relations also influence sexual consent….However, in today’s modern world with equality being the buzzword, such may not be the situation.
The judgment reiterates (to be read with Point. 46) that the issue of consent is not resolved in the case:
86….However, in the present case, as has been stated, the appellant has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix.
The judgment assumes that a person suffering from bi-polar condition may not understand meaning of “communications” of consent, but clarifies it is not probing that angle:
101. There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the prosecutrix and the appellant and after coming to know about the alleged incident, she had corresponded with the prosecutrix wherein she had informed her that the appellant had been under a rehabilitation regimen for his bipolar mental condition. The prosecutrix had, but rubbished such an explanation by stating that the occurrence had to do more with the physical power of the appellant than the mental condition. However, it would be necessary to know as to what a bipolar disorder in a human being entails. Though the mental makeup/condition of the appellant may not be a ground to justify any act which is prohibited under law, but the same can be taken into consideration while deciding as to whether the appellant had the correct cognitive perception to understand the exact import of any communication by the other person. Since no evidence has been led on this aspect, any foray into this field would only be fraught with speculative imagination, which this Court does not intend to undertake.
The judgment’s conclusion is not only about doubtful consent and communication of that consent, but also about whether the incident took place at all:
102. But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.
The judgment’s final word:
103. Under such circumstances, benefit of doubt is necessarily to be given to the appellant.
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