Rape verdicts retrograde, unjust

Two recent judgements of different high courts and the observations made by them in their orders have weakened the position of victims in rape cases and gone against established legal and judicial norms. The Delhi high court acquitted film-maker Mahmood Farooqui, who had been convicted by a lower court for raping an American researcher. Farooqui was her guide and friend for many years. The court said that the victim did not convey her lack of consent properly to the accused, as “instances of human behaviour are not unknown when a feeble no may mean yes.” It also said strangely that a “feeble no” conveys a lack of consent only when the parties involved are strangers or if “one of the parties is a conservative person.” In the other judgement, the Punjab and Haryana high court suspended the 20-year sentence on three rape accused, noting that the victim had a history of “casual relationships and experimentation in sex.”

These decisions and remarks go against important elements of the rape law. The law says that consent meansunequivocal voluntary agreement by a woman. When a woman alleges lack of consent, it is for the accused to prove otherwise. The Delhi HC judgement reverses this, dilutes the meaning of consent, and practically shifts the burden of proof for lack of consent onto the victim. The judge said that the victim’s unwillingness was only in her mind, and accepted Farooqui’s claim that he was unaware of it. This amounts to faulting the victim for the man’s failure to realise that she said “no”. The court’s view comes close to age-old and gender-insensitive views like “a woman’s no is an yes”. Consent is a major plank used by accused persons as defence in rape cases. If it is diluted, it will weaken many rape cases.

The Punjab and Haryana HC verdict goes beyond the realm of law into areas of retrograde social and personal views about women and their behaviour, and goes against explanations of rape and consent given in past judgements. It will set a wrong precedent. The Supreme Court will have to take a view of it, lest it wrongly influence court decisions in future. The court’s remarks about the “promiscuous attitude and voyeuristic mind” of the victim are also wrong and least expected from a court. Even if a woman had many instances of consensual physical relations with a person in the past, a single assault without consent is an offence. The court has found a rationale, if not justification, for the assault, and blamed and shamed the victim, instead of providing justice to her. Courts must stick to the law, judge the crime, not the victim.

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