In the wake of the protests following the 2012 Delhi gangrape, India had witnessed a welcome sharpening of understanding around sexual violence and consent. Legal reform recognized the principle of affirmative consent – i.e the principle that consent must be nothing short of an unequivocal positive ‘Yes’ (whether through words or gestures) to engage in a sexual act. In public discourse and popular understanding too, the understanding that ‘No means No’ had been strengthened. Recent Court verdicts and orders have however dealt a deep blow to this hard-won progressive advance.
As women and women’s groups with a long history of working on issues of gender justice and with survivors of sexual violence, we are deeply disturbed by the 13th September 2017 bail order of the Punjab and Haryana High Court (HC) which cited the victim’s “experimentation in sexual encounters”, “promiscuous attitude and voyeuristic mind” as part of its legal reasoning for granting bail to three men convicted in the Jindal Law School gangrape case. In so doing, the Punjab and Haryana HC has strengthened the dangerously patriarchal notion that rape is not rape when the woman is “promiscuous”, and that “promiscuous” women invite rape since their “promiscuity” can be read as consent. It also stands in clear violation of the Indian Evidence Act that specifically prohibits referencing the victim’s sexual history or character in adjudication of cases of sexual assault.
Another equally disturbing instance is the 25th September 2017 verdict of the Delhi HC over-turning the Trial Court conviction of Mahmood Farooqui for rape. This verdict takes the legal and social understanding of consent back several decades by claiming that “instances of a woman’s behaviour are not unknown that a feeble ‘No’ may mean ‘Yes’.” This verdict also formulates different legal standards required for deciphering consent in cases involving “conservative” women and those involving “intellectually/academically proficient” women for whom “equality is a buzzword.” It seems that for the Delhi HC, it is the woman’s character (her being conservative or modern, educated or illiterate), not the man’s failure to respect a NO, which carries weight in deciding an appeal against a rape conviction.
The verdict concludes that the victim is not deserving of justice because the accused failed to accept her ‘No’ (despite clear evidence of her repeatedly communicating the same to him). The Delhi HC judgment, while acknowledging that the law defines consent as “affirmative consent”, sets aside this understanding and coins a new principle of “affirmative denial” for “intellectually/academically proficient” and non-conservative women. While the law clearly states that absence of physical resistance will not imply consent, the verdict suggests that non-conservative and intellectual women must not only communicate their lack of consent but also bear the burden of making sure the man understands that when she says no she really means no. When a categorical no is not considered sufficient to communicate lack of consent, is it only signs of brutality and physical injury which must be accepted as “proof” that the woman did not consent? This effectively opens the door for acquittal in all rape cases where the victim has not also been severely physically injured.
It must be underlined that throughout the trial, the defence had maintained and led evidence to show that no sexual act at all took place on that day and that the complainant was not truthful. The High Court confirmed the trial court’s finding that the complainant’s testimony was honest and credible and found her to be a ‘sterling witness’. However the HC acquitted the Accused, arguing for him that he probably did not understood the ‘No’ because sometimes, due to the “gender binary”, women’s “No’s” may be “feeble”. Such reasoning also disregards the fact that the Complainant in this case was never cross-examined on her description of rape, or whether her ‘No’ was misunderstood as a ‘Yes’, and neither did the Accused ever state that he mistakenly assumed consent.
Similarly, the Delhi HC judgment gives considerable importance to whether a person with a bi-polar condition can comprehend lack of consent, despite the fact that the defence produced no medical evidence to show that the Accused was diagnosed with bi-polar disorder, nor argued that this medical condition can impair comprehension.
The verdict sets a dangerous precedent both legally, and socially. In law, it opens the door for every rape accused to claim that he had mistakenly read the woman’s “No” as a “Yes”. It weakens the principle upheld by the 2013 amendment in the rape law that consent for sexual activity is not a woman’s default setting; that nothing less than clear “Yes” on part of the woman can count as consent; and that the mere absence of a “No” does not mean “Yes”. It sets an unfair and impossible burden on the victim-complainant – whereby she must not only prove she did not consent, but also that her lack of consent was not misunderstood as consent by the accused!
Moreover, the verdict reaffirms the entrenched cultural practice of ignoring a woman’s “No” and deliberately assuming that it actually means “Yes”. It sends out a message that the responsibility for understanding and respecting a “No” does not lie with men; rather that the onus is on women to make sure their “No” is understood! It sends out a message that even if a woman fears for her life, she must ensure she sustains obvious physical injuries so that her violation is recognised as rape.
It sends out a message that even when a woman has categorically communicated lack of consent, the Judiciary is free to displace this with its own assumptions of how women actually behave. It sends out a message that a woman who asserts her sexual autonomy will either be told that when she said ‘No’ she actually meant ‘Yes’ and that if she ever says ‘Yes’ to sex she should be prepared for her future “No’s” to be disregarded, both by the perpetrator as well as the legal system.
Both the Punjab and Haryana HC bail order and Delhi High Court acquittal verdict protect men who “assume consent” of women who are educated or not “conservative”, and enable men to read deliberately misread consent when none exists.
These verdicts come at a time when there is an escalation of the backlash against any effort to displace the entrenched prejudice and bias which regulates women’s access to justice. They must also be understood in the context of the overt and covert social backlash against women laying claim to their citizenship, whether in terms of access to public spaces, education, the right to redressal for violence, equal opportunities at the workplace, or to exercise their choice in intimate relationships, marriage and religious practise.
We, the undersigned individuals and representatives of women’s movement organisations, condemn the ongoing politics of backlash against women in law, society and polity today and call for introspection from all concerned on how to make gender equality a reality for all survivors of rape.
- Annie D Raja, National Federation of Indian Women
- Anuradha and Vani, Saheli Women’s Resource Centre
- Anuradha Kapoor,Swayam, Kolkata
- Amita De, Shramjivi Mahila Samity
- Arundathi Vishwanath, Sambhavnaa Institute, Palampur
- Arundhati Dhuru and Meera Sanghamitra, National Alliance of People’s Movements (NAPM)
- All India Network of Individuals and NGOs working with National and State Human Rights Institutions
- Bebaak Collective
- Bittu Karthik, Women against Sexual Violence and State Repression (WSS)
- Forum Against Oppression of Women, Mumbai
- Henri Tiphagne, Executive Director, People’s Watch
- Human Rights Defenders’ Alert – India
- Jasmeen Patheja, Blank Noise
- Joyanti Sen, Sachetana
- Kavita Krishnan, All India Progressive Women’s Association (AIPWA)
- Kavita Srivastava, People’s Union for Civil Liberties (PUCL)
- LABIA – A Queer Feminist LBT Collective
- Maimoona Mollah and Asha Sharma, Janwadi Mahila Samiti (JMS), Delhi
- Malini Bhattacharya, Mariam Dhawale and Kirti Singh, All India Democratic Women’s Association (AIDWA)
- Manshi Asher, Himdhara Collective
- Maya Gaurav and Aarthi Pai, SANGRAM
- Maya John, Convener, Centre for Struggling Women (CSW)
- Meena Seshu, Veshya Anyay Mukti Parishad (VAMP)
- Nandita Shah, Co-Director, Akshara
- Ovais Sultan Khan, Act Now for Harmony & Democracy (ANHAD)
- Poonam Kaushik, Pragatisheel Mahila Sangathan, Delhi
- Rajesh Srinivas, Sangama
- Rajni Tilak, Rashtriya Dalit Mahila Andolan
- Sappho for Equality
- Volga, Kalpana Kannabiran, Vasant Kannabiran, Stanley Thangaraj for Asmita, Hyderabad
- Yasmeen, Awaaz e Niswan
- Zakia Soman, Bharatiya Muslim Mahila Andolan (BMMA)
- Abhisikta Dasgupta
- Aditi Joshi
- Anuradha Banerji and Vani Subramanian, Saheli Women’s Resource Centre
- Archana Dwivedi
- Ayesha Kidwai
- Dr Chayanika Shah
- Dr Mary John
- Dr Mohan Rao
- Dr Nivedita Menon
- Dr Uma Chakravarti
- Dr. Ajita Rao, Dalit Activist/Feminist
- Enakshi Ganguly Thakral
- Gauri Shringarpure
- Geetha Nambisan
- Hasina Khan
- Kalyani Menon-Sen
- Kamayani Bali Mahabal, Feminist, Mumbai
- Karuna D. W.
- Kavita Krishnan, AIPWA
- Ketki Ranade
- Laxmi Murthy
- Malini Subramaniam, Independent Journalist
- Mansi Asher
- Minakshi Sanyal
- Nandita Gandhi, activist and researcher, Mumbai
- Nandini Rao
- Nikita Sonavane
- Nisha Biswas
- Nivedita Menon
- Nowruz, Delhi
- Pamela Philipose
- Poushali Basak, Mumbai
- Pushpa Achanta
- Raj Merchant
- Rakhi Sehgal
- Ranjita Biswas
- Sandhya Gokhale, Mumbai
- Shabnam Hashmi
- Shalini Gera
- Shals Mahajan
- Shoma Sen
- Shruti Chakravarty
- Smriti Nevatia
- Soma Marik
- Subhagata Ghosh
- Suneeta Dhar
- Vasantha Kumari
- Zulekha Jabin