Recently, the Delhi High Court acquitted a person accused of rape charges.
There are divergent views in this regard, between sexual consent of a woman and rape.
What is the case?
Mahmood Farooqui was convicted of rape charges by a trial court.
The case involves a 35-year-old foreign woman researcher in India.
The Delhi High Court acquitted the accused giving him the benefit of doubt.
The two grounds are i) he had no intention to rape her ii) it was unclear that she had refused consent.
The court has held that the women's stance on consent should not be mere hesitation or reluctance, but a clear and unambiguous “no”.
What is the 2013 amendment?
After the Nirbhaya rape case, in 2013, significant amendments were made to the rape law provisions in the Indian Penal Code.
Among many, it included the definition of consent in rape cases and established an “affirmative model” of consent.
Accordingly, consent is defined as an indisputable voluntary agreement by words, gestures or any form of verbal or non-verbal communication by a woman.
It clearly specifies that absence of physical resistance would not by itself amount to consent.
Clearly, the objective behind the incorporation of this definition is to make woman the subject of law.
The amendments also introduced a clause which says that if the woman “is unable to communicate consent", the man would be said to have committed rape.
It could be due to physical or mental infirmity, or not being given the space to communicate and be heard.
Why is the recent judgement flawed?
The verdict seems to have completely negated the objective and intent of the definition of sexual consent in the 2013 amendment.
The judgement has derived validity primarily from two presumptions -
absence of intention to rape (by the accused).
non-communication by the woman despite a clear 'no' from her.
Clearly, as a disregard for the amendments, the verdict displaces the woman and reinstitutes the man as the subject of law.
The court’s reasoning was not what the woman said, but what the man understood as her consent.
The ground of "assumed consent" in the verdict seems to ignore woman’s voice or freedom in matters concerning her sexuality.
What is the larger implication?
The Delhi High Court's verdict comes as a jolt to the evolving rape law jurisprudence in the country.
The still prevalent socio-cultural stereotypes have defied the women sensitive logic and objective of earlier legal reforms.
The country and the judiciary should wake up to women's concerns and rights, to establish gender equality in all spheres of freedom and justice.
