A little late in the day, but I finally watched the much celebrated movie, Pink. It is undoubtedly a very significant film and deserves all the credit it has received so far for demolishing the myth of ‘characterless women’ in sexual assault cases.
However, despite some vindication for the three women by the end of the film, the movie fails to provide a comfortable closure. With a little experience in the women’s movement one knows that in real life the wafer-thin victory in the case, based more on chance (of the antagonist losing his cool and a level-headed judge sitting on the chair) than hard evidence, will be challenged. The powerful guilty men will appeal against the session’s court verdict and the same courtroom ordeal will be repeated over and over again in the higher courts with no certainty over the final outcome. The collateral damage to the women in terms of loss of work, relationships and friendships will not be compensated for under any existing law; the damage to their reputations due to morphed/photo-shopped online images may ultimately be punished under the IT Act but may not be lead to any compensation either; and the prying, judgmental eyes of society will continue to haunt the women long after their legal ordeal is over.
At the heart of the film is the attempted rape of at least two out of the three women, and the sexual assault or possibly rape of one of them in a moving vehicle. It must be noted here, that unlike ‘attempt to murder’ there is nothing like attempt to rape in law. So, an incident either amounts to rape or to outraging a woman’s modesty punishable in various degrees ranging from fine and/or to one, three or seven years imprisonment. It goes to the credit of the director that the truth of the initial incident is kept ambiguous and the relevant scenes relegated to after the verdict is delivered in the movie.
Like most real life cases that rarely have direct witnesses and often happen behind closed doors with only the parties involved present, the movie proceeds in the ‘she said-he said’ format for most of the other neutral characters in the film, while being firmly on the side of the women in the directorial vision and for the audience. It is not a coincidence that the women do not think of lodging any complaint unless seriously threatened by the assailants, which, too, is not entertained by the hostile Police (it must be noted that majority of the incidents of even rape, leave alone molestation or sexual harassment, are not reported to law by all Indian as well as world-wide estimates). Rather, a counter complaint of attempt to murder under sec. 307 and voluntarily causing hurt by dangerous weapons or means under sec. 324 and causing grievous hurt under sec. 320 is lodged against the woman in a backdate. Instead of being the complainants and survivors, therefore, they are in fact turned into the accused for resorting to violence when denied payment in their design for soliciting sex! And the rest of the courtroom drama revolves around proving their innocence.
Much has been said about the film’s success in creating more realistic contemporary urban single women characters in the film, but the aspect on which the film actually falters is its out-of-date treatment of consent. The male lawyer in the film advocates – No means No, it does not require any explanation or rationalisation, and when women, including sex-workers, say No, Men must Stop, including in marriage. The latter is just a noble opinion, for we know that marital rape is not recognised by Indian laws, and husbands are under no obligation to stop when their wives say no if they are over 18 years of age. But there has been a major change in the legal definition of consent that was given effect in law after the 2012 anti-gang rape protests. This change is entirely overlooked in the film. It is perhaps useful to reproduce here the relevant definition of consent from The Criminal Law (Amendment) Act, 2013 that was enacted by the Parliament:
Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form or verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
The operative part of this change in the definition of consent is that not only must men stop when a woman says No, but in fact men must Not Proceed unless a woman says Yes. Among the seven descriptions of consent provided by the new rape law, even consent obtained when a woman is intoxicated and unable to understand the nature and consequences of that to which she gives consent, amounts to rape. The burden of proving lack of consent is thus no longer upon the woman, but upon the man, to prove that there was in fact an unequivocal consent (which, by the way, is no more easy or difficult as it is for a woman to prove her lack of consent). To be fair to the film makers, the centre-piece of the movie Pink is not an act of rape. The antagonist is ultimately held guilty under sec. 354 amounting to assault with an intention to outrage a woman’s modesty. Whether this is by design or a mere coincidence, would be better known to those concerned. But, if a new generation of men have to learn to take No from a new generation of women, it is imperative that that new generation of women will also have to learn to say No. But simultaneously both will have to learn that sexual acts require an unequivocal consent, wherein, men cannot proceed without a woman’s consent, and women will also have to prepare to provide that explicit consent towards the overall democratization of sexual relations.
Albeena Shakil is Assistant Professor of English at the Jindal Global Law School.