On September 25, Justice
Ashok Kumar of the Delhi High Court set aside a lower court order convicting “Peepli
Live” co-director Mahmood Farooqui of raping a US citizen. The judgment said it
was doubtful if there was consent for the sexual act and that it was doubtful
if that consent was effectively communicated. It said it was even doubtful if
the incident ever happened the way the victim narrated it.
Our attitudes towards women and rape have not changed a bit.
Take the Delhi HC setting aside a lower court conviction of Peepli Live
co-director Farooqui for raping a woman. The judgment does not make sense at
all. It makes lots of assumptions; believes in stereotypes and does not believe
the rape victim at all.
If the woman is educated, progressive, liberal, easy-going, does not have
inhibitions about sex, has a balanced mien, then she is difficult to
believe!!
The victim in this case begins her communication to
Farooqui, after the alleged rape, like this:
“I
tried calling you, but was unable to get through, I want
to talk with you about what happened the other night. I
like you a lot. You know that I consider you a good friend
and I respect you, but what happened the other night
wasn’t right. I know you were in a very difficult space and
you are having some issues right now, but Saturday you
really went too far. You kept asking me if you could suck
me and I knew you were drunk and sad and things were
going awful. I knew that this wasn’t going to help things
and I told you many times I didn’t want to. But you did
become forceful. I went along, because I did not want
things to escalate, but it was not what I wanted. I was just
afraid that something bad would happen if I didn’t. This is
new for me. I completely own my sexually and I consider
you a good friend. I like you. I am attracted to you, but it
really made me feel bad when this happened. I haven’t
known what to say to you since then, I wasn’t sure if I
would say anything. In the end I consented, but it was
because of pressure and your own force physically on me.
I did not want things to go bad. I have only decided to tell
you how I feel for your own well being. I am afraid that if
you don’t realize that this is unacceptable, you may try
this on another woman when you are drunk and she will
not be so understanding."
Does the tenor of the communication raise doubts about the
victim's character and attitude? To me, the opening paragraph suggests she is a
solid woman who is mature and who is neither confused nor agitated. She was
handling a sexual exploitation issue involving a friend -- that was something
that shocked her, but she did not lose he sense of balance and proportion. Nor,
at the same time, was she soft on him. Had she raved and ranted, abused him,
vandalised his house, in fact behaved like a madcap, would she have stood a
better chance of being believed? Pathetic.
So, we have a rape case where
the High Court took a diametrically opposite view from the lower court. The
judgment raises a number of doubts and throws up an equal number of assumptions
– these form the basis of the judgment.
A deconstruction of the
judgment, point by point, raises a point: Is there a stereo-type (i) format of
rape (ii) format of consent or refusal (iii) format of the victim’s attitudes
and reactions after rape (iv) format of no-possibility of rape where the man
and the woman are close friends, and so forth? It seems that if the victim does not conform to a “stereotype”, she
is in trouble.
Here is the deconstruction,
based on the judgment, without attributing any motive either to the judgment or
the learned judge:
The victim to Farooqui:
Victim, March 30, 2015: I
knew that this wasn’t going to help things and I told you many times I didn’t
want to. But you did become forceful. I went along, because I did not want
things to escalate, but it was not what I wanted. I was just afraid that
something bad would happen if I didn’t. This is new for me. I completely own my
sexually and I consider you a good friend. I like you. I am attracted to you,
but it really made me feel bad when this happened.
Victim, March 30, 2015: I
want the best for you, whatever that is, but I also need you to know doing what
you did the other night is unacceptable. I hope this doesn’t affect our
friendship, but am willing to deal with the repercussions if it does.”
The victim to Farooqui, which communication was read
by the latter’s wife:
Victim, April 12, 2015: You
were supposed to be my friend. Instead you manipulated me. You hurt me. I said
no. I said no many times. You didn’t listen. You pinned my arms. You pulled my
underwear down.
Victim, April 12, 2015: In
the past two weeks I have blamed myself. I have spent the last two weeks
crying, processing. I have thought about death.
Victim, April 12, 2015: I
have been trying to figure out what I could have done differently, but I
couldn’t do anything differently…..I have spent the past two weeks protecting
you, like I did that night. The only thing I know is I didn’t do anything wrong
but that doesn’t matter. I am xxxx scared now. I am xxxx screwed up now.
Victim, April 12, 2015: I
used to own my sexuality. You took that from me, you forced me to do something
I did not want to do. I stopped struggling because I was scared. I wanted to
get out. I did get out. So remember this, what you did that night wasn’t one
night, what you did that night continues to affect me and my suffering, my
pain. It’s on your hands, when I carry this forward in life. It is your sin
that I carry forward. It is you sin that I have to overcome. You disgust me……”
Farooqui’s wife to the Victim:
Anusha, April 12, 2015: I
chanced upon your email you sent Mahmood today…I am deeply disturbed by your
email. What you have described is an ordeal. I cannot imagine how you have
dealt with it so far. Needless to say that I stand with you. If you require any
help of any nature including legal, I will assist. This is completely
unacceptable behaviour, especially for me since it happened under my roof.
Anusha, April 12, 2015: You’d
obviously wonder why I have not confronted Mahmood with this but instead I am
writing to you directly. The reason for that is that Mahmood is in a rehab. I
don’t know how and when it would be appropriate to speak with him. The issue is
also complicated by the fact that he is a Bi-polar depressive
Anusha, April 12, 2015: I
really don’t know how to express how responsible I feel. I have already spoken
with his psychiatrist, and we both feel that this matter should be reported to
the authorities if you so wish.
Anusha, April 12, 2015: Please
find me and his family with you in the process of healing, as I hope the
process will be of healing.
Justice Ashok Kumar, at point
19 of his Judgment, refers to the communication between the two women:
19….The wife of the appellant
had apologized for what had happened to the prosecutrix. The prosecutrix also
replied to the e-mail (Ex.PW3/C-12), telling the wife of the appellant not to
blame the bipolar disorder of her husband for the sexual assault on her and
that rape and sexual assault is executed with power.
Communication between the two women; the Victim’s
proposed action and the Wife’s reaction:
Victim, April 12, 2015: Mahmood
is the only one responsible. As you can see I am angry and hurt and processing
this is very difficult right now. I cannot do it on my own at the moment and I
do not have the resources in India to figure out how to begin the healing
process, so I am leaving tonight to go back to New York. I need to be around my
family and my colleagues. I need to get help and support for this.
Victim, April 12, 2015: Just
please do me a favour and do not blame this on his bi-polar condition, at least
in my presence. I know about the condition, but sexual assault has nothing to
do with bipolar and everything to do with power. The assertion of power over
another human being.”
Anusha, April 15, 2015: I am
glad to know that you will be among your friends and family for the moment. I
hope that you will be able to overcome this horrible incident. As I said
before, his brothers and I will completely support you in whatever you wish to
do about it
Anusha, April 15, 2015: I
understand how angry you must be and therefore misread my categorical position
on such matters. The reason I mentioned Bi-polar is because that is the reason
why I don’t have access to Mahmood and therefore I am unable to confront him at
present.
The crux of Justice Ashok Kumar’s judgment:
46. The history of intimacy
and the unabashed liking/attraction of the prosecutrix towards the appellant
may have given an impression to the appellant of consent. The orgasm which was
feigned by the prosecutrix, avowedly for the purposes of preventing further
damage to her, may have been taken by the appellant as willingness on the part
of the prosecutrix because it understood/misunderstood as a non-verbal
communication of consent. Absence of
any real resistance of any kind re-affirms the willingness. An expression of
disinclination alone, that also a feeble one, may not be sufficient to
constitute rape.
The judge explains what is feeble consent or feeble
hesitation on the part of a victim alleging rape:
47. In the present case, the
unwillingness of the prosecutrix was only in her own mind and heart but she
communicated something different to the appellant. If that were not so, the
prosecutrix would not have told the appellant that he had gone too far on that
night. At what point of time, during
the act, did she not give the consent for the same, thus, remains unknown and
it can safely be said that the appellant had no idea at all that the
prosecutrix was unwilling. It is not unknown that during sexual acts,
one of the partners may be a little less willing or, it can be said unwilling
but when there is an assumed consent, it matters not if one of the partners to
the act is a bit hesitant. Such feeble hesitation can never be understood as a
positive negation of any advances by the other partner.
The judgment finds that the Victim’s “understanding”
disposition following rape is “surprising”:
48…A person who has been violated against her wishes would not be so
understanding as to confront the appellant with such simple reproach.
No communication on the next day between the prosecutrix and the appellant
further buttresses the aforesaid argument. A day after the occurrence, the
prosecutrix cannot be said to be under any fear of reprisal or reaction and her
not approaching the issue with the appellant is rather surprising.
The judgment makes critical assumptions about the
Victim’s attitude on the basis of her post-rape communication:
77. The WhatsApp
communication between the prosecutrix and the appellant on 30.03.2015 signifies
that what happened in the night of 28.03.2015 was not acceptable to her because
it was something which she never wanted. The communication further reads that
the appellant, on that night went too far. This
obviously means that there were some earlier encounters which may not have been
of such intensity or passion but physical contact in some measure was accepted.
Under such circumstances, this Court is required to see as to what was communicated
to the appellant. It is a matter of
common knowledge that different persons have different inclinations for sexual
activity and immediately preceding the act, there are different ways of people
of responding to the advances, entreaties or request.
Another critical assumption about women in general and
their consent or refusal for sex:
78. Instances of woman behavior are not unknown that a feeble “no‟ may
mean a “yes‟. ….when parties are known to each other, are persons of
letters and are intellectually/academically proficient, and if, in the past,
there have been physical contacts. In such cases, it would be really difficult
to decipher whether little or no resistance and a feeble “no”, was actually a
denial of consent.
The judgment refers to the Victim’s “motherly” feeling
and the defendant’s want to “suck her” and links it to the Nirbhaya syndrome:
81….There are some exchanges
between the parties regarding their being good persons in their individuals
rights. The prosecutrix starts feeling
motherly towards the appellant. Then the appellant communicates his desire to
suck her. The prosecutrix says “No‟ and gives a push but ultimately goes along.
In her mind, the prosecutrix remembers a clip from the case of
Nirbhaya, a hapless girl who was brutally raped and killed, when the malefactor
had declared that if she (Nirbhaya) did not resist, she might have lived.
The judgment clearly states it is not known if there
was consent and if so, for which “particular move”:
83. The questions which arise
are whether or not there was consent; whether the appellant mistakenly accepted
the moves of the prosecutrix as consent; whether the feelings of the
prosecutrix could be effectively communicated to the appellant and whether
mistaking all this for consent by the appellant is genuine or only a ruse for
his defence. At what point of time and
for which particular move, the appellant did not have the consent of the
prosecutrix is not known. What is the truth of the matter is known to
only two persons namely the appellant and the prosecutrix who have advanced
their own theories/versions.
The judgment refers to various “models” of sexual
consent but does not take the description to a logical end:
84….There is a recent trend
of suggesting various models of sexual
consent. The traditional and the most accepted model would be an
“affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There
would be some difficulty in an universal acceptance of the aforesaid model of
consent, as in certain cases, there can be an affirmative consent, or a
positive denial, but it may remain
underlying/dormant which could lead to confusion in the mind of the other.
The judgment makes an assumption about “yes” and “no”
not exactly being “yes” and “no”:
85. In an act of passion, actuated by libido, there could be myriad
circumstances which can surround a consent and it may not necessarily
always mean yes in case of yes or no in case of no…..However, recent studies
reveal that in reality, most of the
sexual interactions are based on non-verbal communication to initiate and
reciprocate consent.
The judgment raises the gender factor in sexual
consent without clarifying why it was raised:
85….There are differences
between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the
initiator of sexual interaction. He performs the active part whereas a woman
is, by and large, non-verbal. Thus gender relations also influence
sexual consent….However, in today’s
modern world with equality being the buzzword, such may not be the situation.
The judgment reiterates (to be read with Point. 46)
that the issue of consent is not resolved in the case:
86….However, in the present
case, as has been stated, the
appellant has not been communicated or at least it is not known whether he has
been communicated that there was no consent of the prosecutrix.
The judgment assumes that a person suffering from
bi-polar condition may not understand meaning of “communications” of consent,
but clarifies it is not probing that angle:
101. There is yet another
aspect of the matter which has caught the attention of this Court. The wife of
the appellant had a chance to read the communication between the prosecutrix
and the appellant and after coming to know about the alleged incident, she had
corresponded with the prosecutrix wherein she had informed her that the
appellant had been under a rehabilitation regimen for his bipolar mental
condition. The prosecutrix had, but rubbished such an explanation by stating
that the occurrence had to do more with the physical power of the appellant
than the mental condition. However, it would be necessary to know as to what a
bipolar disorder in a human being entails. Though
the mental makeup/condition of the appellant may not be a ground to justify any
act which is prohibited under law, but the same can be taken into consideration
while deciding as to whether the appellant had the correct cognitive perception
to understand the exact import of any communication by the other person.
Since no evidence has been led on this aspect, any foray into this field would only be fraught with speculative
imagination, which this Court does not intend to undertake.
The judgment’s conclusion is not only about doubtful
consent and communication of that consent, but also about whether the incident
took place at all:
102. But, it remains in doubt as to whether such an incident, as has been
narrated by the prosecutrix, took place and if at all it had taken place, it
was without the consent/will of the prosecutrix and if it was without the
consent of the prosecutrix, whether the appellant could discern/understand the
same.
The judgment’s final word:
103. Under such
circumstances, benefit of doubt is necessarily to be given to the appellant.
