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Consent in Rape - Farooqui Verdict

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October 05, 2017

What is the issue?

  • 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 -
  1. absence of intention to rape (by the accused).
  2. 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.

 

Source: The Hindu

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