The High Court order is being seen as a setback to the debate surrounding consent and a woman’s right to say ‘no’ to sex.(Shutterstock)
The High Court order is being seen as a setback to the debate surrounding consent and a woman’s right to say ‘no’ to sex.(Shutterstock)

A feeble no may be yes? Farooqui’s rape acquittal and language of consent | Opinion

Peepli Live co-director Mahmood Farooqui’s acquittal by a Delhi court has reignited the discourse on consent. In its judgement, the court said, “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.
By Jyoti Bawa | Hindustan Times
UPDATED ON SEP 26, 2017 05:42 PM IST

It is your fault. It always is.

Because you went out alone at night. Cinderellas belong in fairytales.

Because you wore a dress that showed your legs. Are you a woman of “good character” or not?

Because you drank. What woman from a respectable family will do that?

And now, add to the list, a feeble no.

And what, you may ask, is a feeble no? As India discusses consent, a Delhi High Court judgment on Monday said “a feeble ‘no’ may mean a ‘yes’”. The order is being seen as a setback to the debate surrounding consent and a woman’s right to say ‘no’ to sex.

In its order acquitting Peepli Live co-director Mahmood Farooqui of rape, the court said, “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied... 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.”

This argument is eerily similar to a popular perception, perpetuated million times over by Bollywood: “Ek ladki ki naa mei uski haan hoti hai”. In a typical Bollywood flick there is no place for no. The lead man pursues (read stalks) the woman till her naa (no) becomes haan (yes). In the song and dance din, a feeble no doesn’t even register.

The judgment goes on to say, “The consent does not merely mean hesitation or reluctance or a “no” to any sexual advances but has to be an affirmative one in clear terms.”

“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.”

So, where does it leave the marital rape debate or rape in a relationship? Does it mean that if a woman has been intimate with a man once, he has earned himself the right to sexually abuse the woman for life?

“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,” the judgment says. This complicates the definition of consent, which is otherwise spelt out clearly in law.

No means no, whether it is said by a man or a woman; whether it is said feebly or emphatically; whether it is said by a person who is educated or not; whether it is said by a person within the confines of a relationship or outside of it. Because no is just that, a no.

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