Rupali Samuel
The Delhi High Court’s decision to overturn the trial court’s conviction of Mahmood Farooqui under Section 376 raises several far-reaching questions, not only about the meaning of consent and the standard for proving lack of consent in a rape prosecution, but also about the purpose of Criminal Law and the limits of the criminal trial process.
The Verdict
In the judgement dated September 25, a Single Judge of the High Court set aside the conviction on the basis that,
“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 Court therefore, required three ingredients to be proved for the purpose of constituting an offence under Section 375:
Is the standard right?
While point 1 and 2 of the ingredients above are uncontroversial, has the Single Judge correctly understood the species of mens rea that is required to be proved as per the definition contained in Section 375?
Section 375 requires the prosecution to prove that there was ‘lack of consent’. However, Explanation 2 defines what ‘consent’ in the eyes of law means.
“Explanation 2:- Consent means an unequivocal voluntary agreement when a woman by words, gestures or any form of 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.”
A plain reading of the proviso leaves it open to argue that a lack of physical resistance coupled with other factors might still constitute a communication of willingness. What remains clear, however, is that whatever the nature of communication of willingness or these other factors, the same must reveal a voluntary and unequivocal agreement on the part of the woman to perform the specific sexual act.
It is a cardinal principle of Criminal Law that the burden of proof lies on the prosecution. However, once the prosecution is able to discharge the initial burden of proving a fact, the onus shifts onto the defence to demonstrate that on an appreciation of the evidence and having regard to the totality of the facts and circumstances of the case, the defence set up by the appellant is probable and true.
While it is correct that the verbal and non-verbal expressions of the woman are to be examined for whether they communicated willingness or not, it is not for the defence to merely state that he failed to comprehend her expression (whether verbal or nonverbal). If the defence wants to disprove the case of the prosecution that there was no unequivocal expression of willingness, the onus shifts onto the defence to show that the woman made some expression falling within the definition of consent in Explanation 2 of Section 375.
Therefore, in observing that it must be shown that the accused “could discern/understand that there was lack of consent”, the Single Judge fails to take into account the shifting onus of proof.
Case for the Prosecution
It was the case of the prosecution that the prosecutrix was invited by Farooqui and arrived at his flat at around 9 pm and found him drunk and crying. His friend PW 12 Ashish was comforting him and thereafter left the room. The accused and the prosecutrix were alone in the room for the next 3:03 minutes. The evidence of the prosecutrix is that the following events happened next:
“At that time accused kissed me. I said no. I pushed him away. He tried kissing me again and he said “I want to suck you”. (the witness started weeping). I said no. He started putting his hand up my dress and pulling down my underwear from one side. I was trying to pull my underwear up from the other side. He held my arms and pinned my arms and body on the diwan. I said no. I struggled to push him away but he was stronger than I was. I did not understand how he could be that much strong. I was very scared. (The witness continued weeping and restless).
I thought two things. The first thing I thought “I had seen a clip from documentary of Nirbhaya case where rapist had said that if she (victim) did not fight, she would still be alive”. I thought I am getting out of this and going to survive. Accused forced oral sex on me. I faked an orgasm because I wanted to end it”.
The doorbell ringing then interrupted what was happening and immediately the prosecutrix tried to book a cab and leave the accused’s house. As soon as she was able to get out, she phoned her friend PW 11 Danish and told him that Farooqui had forced oral sex upon her. On March 30, 2015, she sent him an email stating that he had forced himself on her and what he did was wrong, to which he replied, “My sincerest apologies.”
Case for the Defence
The case for the defence throughout the trial was that while the prosecutrix visited the house of Farooqui on March 28, the incident is totally false and he did not perform oral sex on her. Rather, the prosecutrix was angered by his rebuffs and filed this false complaint.
On appeal, the defence raised a new plea (see para 42) in the nature of an alternative argument that, if at all, such an occurrence had taken place, it was with the consent of the prosecutrix.
It must be noted that taking a false plea at trial is itself an incriminating circumstance against the accused and the Supreme Court has specifically disregarded contradictory stands in the context of rape cases. The Single Judge, however, does not consider this as a basis for drawing any negative inference.
The defence argued that “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...”
The defence lists (at para 45) the circumstances which demonstrate that the prosecutrix communicated willingness. These include that the prosecutrix had exchanged kisses and hugs with Farooqui in the past, that she had been cracking jokes and indulged in playful banter immediately prior to the occurrence, that she feigned an orgasm and that prior to the act, when asked for sexual favours by the accused, she did not stoutly resent or deny. All of these factors, it was submitted, give rise to a situation of ‘assumed consent.’
The defence further argued that the previous statement of the prosecutrix in her email dated March 30 to Farooqui clearly reveals that she consented in that it states that he went really too far and that it was not right, but she ‘went along’ and ‘consented.’
Did she refuse (properly)?
While evaluating this argument, the Single Judge begins by observing,
“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 (at para 77).”
After considering the conduct of the prosecutrix, the Judge holds that even though she said no and pushed him, thereafter, she went along and that there was no communication of the fear in the mind of the prosecutrix to the accused. Rather,
“…by making a mental move of feigning orgasm so as to end the ordeal, what the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act (para 82).”
Once the prosecution has proved that a woman said no and pushed someone, the fact that she then ceased resisting does not transform her verbal expression of ‘no’ into a non-verbal expression of consent. It is the evidence of the prosecutrix that she did feign an orgasm, however, this was after some moments had passed so as to end the ordeal. Thus, at best, this expression could only be invoked to justify his actions post this moment and cannot be relied on to justify all his actions prior thereto.
The Judge also relies on the email, to find that “she went along” and so there was no communication of lack of consent. However, the email when read as a whole says a very different story:
“..I told you many times I didn’t want to. But you became forceful. I went along, because I did not want things to escalate but it was not what I wanted…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.”
The prosecutrix is clear that the force of the accused preceded her going along. Moreover, in light of her testimony, there is nothing in this previous statement to indicate that this going along was anything more than passive resistance in that she lay down without physically or verbally resisting, after having said no. This is not sufficient in law to constitute an unequivocal expression of willingness. The proviso in Section 375 explicitly prohibits the Court from reaching such a conclusion.
So why does the Judge think that her actions were not good enough to communicate her lack of consent? Para 77 is revealing:
“If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation 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.”
Thus, the crux of the judgement is that the Court sets out a separate standard for educated (liberated) women who claim rape by people with whom they have had prior sexual relationships/by known persons. This is a classic reproduction of stereotypes around ‘good’ women versus ‘bad’ women – while the former is to be believed, that latter is to be assumed to be consenting, even if a bit hesitant.
Role of Judges and Criminal Law
The Court, like any of us, can only make a determination based on a Judge’s own understanding of human psychology. Is he right when he says that there are grades of ‘no’ and that not all refusals are actual denials of consent? Did Farooqui only do what most people do by coaxing a partner into sex? Should he be in prison for this?
Apart from outlawing those actions that are already morally abhorrent to society, Criminal Law is also a tool to reorient human behaviour so as to avoid larger social harm. It is deployed to ensure that regardless of how we presently behave or feel about our behaviour, we have to modify our actions to fall within the standards of law.
The law as it stands after the Criminal Law Amendment, 2013 does not leave us free, either as regular people, or as judges, to simply apply our own standards and assume consent in sexual relationships, whether because of a past sexual relationship or because of how educated the parties are. It requires that men receive affirmative expressions of consent, regardless of whether this is a normal practice in our sexual encounters or not.
This standard follows a long history of mostly male judges using their own limited understanding of the world to repeatedly disbelieve women who say there was no consent. The reluctance of this Court to apply this hard standard raises serious challenges to the very ability of Criminal Law to serve as an effective recourse to those women who experience very real trauma from the actions of people, including intimate partners, who are not yet socialised into respecting boundaries.
The judgement holds up a mirror to us to ask whether consent between known persons is too murky a ground for us to adjudicate via the vehicle of the adversarial criminal trial? Even as the Judge reaffirms that the prosecutrix is a ‘sterling witness,’ the judgement is very transparent about his struggle to understand how to pin responsibility in this case. And so he leaves us with his conundrum:
If the law is erring on the side of caution, whose side must it choose?
Rupali Samuel practices criminal law in Delhi