The recent Delhi High Court’s judgment in the Mahmood Farooqui rape case acquitted him because the court thought, among other things, that a ‘feeble’ no is not always a ‘no’, and count as an actual refusal. This has elicited a variety of responses from different quarters.
The judge included, many people are confused or in denial about rape in India. Some are unclear about what constitutes it, while others believe it is not possible to know for sure when and whether rape has occurred. Meanwhile, some circulate rape jokes and others laugh at it!
The concept is really quite simple - explicit consent. Alas, some people don’t seem to get it.
So, how about this?
Any adult who desires to indulge in sex, before, after, during, or besides a marriage, should be a certified sex practitioner – they should have the license to sex. After all, it could be an anti-social activity, with devastating consequences. The four-lettered word that shames the perpetrator should be the R-word.
The governments could test aspirants for maturity and responsibility, and issue a certificate or license. The focus of the written exam, it’s syllabus and study is quite simple.
One thing, two words: Explicit consent.
It could have case studies, didactic content, multiple choice questions and trick questions. The gist of it is to master the following.
Ask her three times. Are you sure you want to have sex?
Ask her each and every time, not extrapolate based on yesterday, this morning, last week, or a marriage contract.
Ask her specifically. Do you want to have oral sex? Do not broaden the form of sex without specific agreement.
Wait for the one simple word - Yes!
Not ‘hmmmm’, ‘later’, ‘maybe’, ‘tomorrow’, ‘no’, or ‘not really’. ‘Yes’ is the only green signal. Even if she is your wife.
Now, yes is explicit but it isn’t always consent. Why?
Consent to anything is agreement only when one has the freedom and capacity to do so. Freedom from constraints, pressure, authority, threat and compulsion. And capacity of the sane, adult mind that is not under the influence of pressure, inebriation or judgement altering chemicals.
This one paragraph on consent seems harder to learn than neurosurgery in a country where the large majority of marriages are “arranged.” To couples entering a marriage, which is also a contractual arrangement on sex, the notion of consent being temporal, reversible and explicit is fiction to both partners. After all, when marriage is the only sanctioned entry gate to sex with no exit gate for your sexual partner to move out of your relationship, your delusions of irresistible libido and sexual prowess go unchallenged. Worse, it leaves men with the impression that a random unknown woman with no prior connection or interest has no qualms sleeping with a strange man with a ceremony in place.
A minor being asked by her adult school teacher is under fear and threat of authority. An employee being solicited by her superior is under compulsion due to pressure of failure. The casting couch, targeting household labour, promising marriage, and enticing your wife with jewellery are all non-consensual.
So is expecting sex at any given time just because she agreed at a previous occasion, be she your wife or partner or sex worker - the phrase for that is sexual slavery – and the act you will indulge in without a ‘yes’ is rape. It would also be rape to engage in intercourse when she consented only to oral sex, or, in any form of sex to which she did not give explicit consent.
Appalled and outraged?
Well, if she agreed to have sex with you under any of these circumstances, she did not explicitly consent. You raped her. Period. Come to terms with it and do not repeat it. Even the judges of India seem to have trouble with explicit consent, so the work is cut out to be the free and equal constitutional democracy we have set out to be.
Sex education it would seem then, should start with the oldest adults, judges, legislators, public office bearers, teachers and professors, anyone in contact with students and minors and of course, all teenagers. The notion of explicit consent needs to be reinforced until indoctrination has set in and before the hall ticket is issued the test.
What now, with a license to sex?
Cut to the opening scene of the arranged marriage, where the prospective bride-groom visits the bride’s home. The bride-to-be-or-not-to-be gets to whisper “license?” in her father’s ear to get confirmation that the man in question will seek and respect her explicit consent.
The couple at the coffee shop on a date, with hormones raging, get to confirm the “license,” before risking their pleasure and lives.
The husband gets to say “license” instead of headache at the end of the day to confirm that his wife indeed respects his choice.
The accompaniment to licensing is for institutions to habituate consent.
The anti-rape pledge is actually recited in classrooms and assemblies by millions of school and college students across Western Europe, South Africa. and the USA. India should not only do that but also require the solemn pledge or Consent Oath to be explicitly administered and signed by every holder of public office and employee in an educational institution.
“I pledge to never commit, condone, or remain silent about rape. I pledge to never coerce anyone I know into having sex, or to pressure the person into any kind of unwanted physical contact. I will always seek clear communication instead of assuming consent. I choose to respect the person’s choice to decline.”
For a nation that lives on euphemisms on one hand, and bleeds of horrific sexual violence on the other, licensing sex may sound radical or even draconian but human beings after all, are creatures of habit. We can train ourselves weekly or regularly into humanity with a solemn anti-rape pledge, it cements the decency in us just the way reciting a prayer, national pledge or anthem does.
With licensing sex and regular anti-rape pledging in place, no judge should be swayed by the feeble “no,” but instead look for the emphatic “yes” to decide on rape.
Views expressed are the author's own.