When 'No' is Not 'No' in Law

By setting a different standard of consent for educated women in the recent acquittal of Mahmood Farooqui, the law has failed to acknowledge that rape, even when it is not a stranger rape, is an act of power and dominance.

The court believes that if the woman is conservative, the standard of consent is likely to be different for her. Credit: Reuters

The court believes that if the woman is conservative, the standard of consent is likely to be different for her. Credit: Reuters

The Delhi high court’s acquittal of M.F. Farooqui, who had been found guilty of raping an American research scholar, has generated a critique of judicial reasoning on consent, which is not derived from the 2013 amendment. The amendment defines ‘consent’ to mean an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent.

Judicial reasoning, in this case, turns the critique of definitions of “affirmative consent” on its head. It does so by upholding the testimony of the woman as “sterling”, yet doubts her since educated women as a class are ascribed a different standard of consent. The judicial invention of the “doctrine of feeble ‘no’” inaugurates a different standard for “positive denial” for the class of educated and cosmopolitan women for whom gender equality is a “buzzword.”

The doctrine of feeble “no”

The judgment outlines the doctrine of feeble “no” at three registers. First, the court claims that in case of stranger rape, a “no” is a “no”, however feeble. Second, the learned judge also tells us that “no” also means “no” when one of the “parties” (read: woman) is conservative, hence “mere reluctance” would amount to “negation of consent.”

In other words, the court believes that if the woman is conservative (read: who is not attracted to a married man), the standard of consent is likely to be different for her. Third, the court reasons that when the “parties are in a prohibited relationship” (read: extra-marital relationship) or when they are “persons of letters”, “little or no resistance” combined with a “feeble ‘no’” would not actually mean “denial of consent.”

Hence, those women who are “intellectually/academically proficient” with a past sexual history of “physical contact” are held to a different standard of consent. Unlike non-literate, married or working-class women, this class of women is expected to communicate the lack of consent vociferously. Although the words “parties” and “persons” are used in these passages, the burden of reasonableness is placed on the woman to communicate lack of contest more vehemently. For it is seen as reasonable that the man would not comprehend the meaning of a “no” and a push when his body leans to seize consent.

His perspective

The judicial description of the haze of male angst, drink and desire is clear about the man’s communication of desire for oral sex. The judicial prose is mesmerised by older and lettered men, who may read a “no” as a “yes” and a push as an invitation. Men who assume that women really do not actually know their own desires and secretly love being pleasured by oral sex, irrespective of consent.

However, passive submission is not expected from an educated woman. She is not expected to experience pressure, or psychological fear. Rather, she is expected to be articulate about every image, and every metonymic association she makes with what is happening to her as the man leans into her body. Her speech must not freeze; her mind must not tell her to submit and she should not pretend to get over with it.

The court sees this encounter as a “he said, she said” scenario where “privacy is disturbed with the ringing of the doorbell”. Note the way judicial prose is written. It is his privacy that is disturbed when he asks her if she wants to do it again.

Rejecting affirmative consent

The court says that when there are two claims juxtaposed with each other, his task is to interpret whether or not there was a mistake on the part of the man to read the “moves” of the woman as consensual and whether she could have communicated what she felt more “efficiently” to the man.

The meaning of consent in “normal parlance”, we are told, means “voluntary agreement” which “could be revoked at any … moment” and has been derived from an “affirmative model” of consent whereby “yes” is “yes” and “no” is “no”.

Also read: Marital Rape and Child Marriage: Two Sides Of The Same Coin

The court then claims that the affirmative model of consent cannot be applied to all scenarios of sex as rape. In certain cases, “positive denial” may remain “dormant.” Acts of passion, we are told, are based on a series of non-verbal sexual communication, which is gendered, wherein typically men are active and women are passive. These sexual codes, however, are inversed since in “today’s modern world” equality is a “buzzword” and this is confusing for men. The court makes the extraordinary argument that when sexual equality is a “buzzword”, men are likely to presume consent to oral sex and their “no” may mean a “yes”.

States of mind

Finally, the judgment shifts to an elaboration of states of mind. On the one hand, rape trauma is upheld as that explains what happened in the aftermath; and on the other hand, whether this incident happened at all, is seen as paling into insignificance while evaluating the mental intent of the man.

The judgment hinges on judicial evaluation of whether he had genuinely mistaken verbal or non-verbal communication as consent and whether the element of fear in the mind of the woman was made known or communicated to him. Intent is read from an email written by the wife of the accused-appellant, which spoke about his rehabilitation following a bipolar condition.

The court’s partial reading of the email exchange rejects the woman’s assertion that a sexual act without her consent is an act of power (which is read as “physical” power); and that a medical condition does not justify such an act. However, although no evidence is brought on record other than the email and nor is the wife examined, the learned judge remarks on the severity of the condition of being bipolar as a mental health problem. While the court does not wish to speculate on the mental condition since no evidence was led on this aspect, it takes it into consideration to understand whether he even understood the import of the “feeble” no.

Lack of intent is psychologised such that a mere suggestion of a mental health problem in an evidence by a witness, who has not been examined, allows judicial assessment of mental health or cognitive rupture.

When the state of the judicial mind is in reasonable doubt, it acquits, as it must. However, in this case the court is in doubt that if the incident took place without consent, whether the man comprehended the feeble “no”.

The court suspends carceral energy at male bodies, but simultaneously unleashes disciplinary energy towards a specific class of women. It upholds a sterling testimony but prescribes another standard of consent for the victim-witness. It destabilises a gendered binary of sexuality, while retaining the binary method of reading women’s pleasure. Most of all, the vocabulary of law does not acknowledge that rape, or sexual assault, even when it is not a stranger rape, is an act of power and dominance, and cannot only be looked at from a theory of how opaque sexual desire is to law.

Pratiksha Baxi is associate professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University. She is the author of Public Secrets of Law: Rape Trials in India (2014, OUP).