What is consent? Why can’t I demand consent from any woman I meet? How should a man interpret a woman’s ‘no’? Several such questions have been in the air ever since the #MeToo movement broke out in India, particularly in 2018 when it hit the film industry. Discussing ‘consent’ has now become mainstream, but there is still a long way to go for the concept to be understood. And that is evident from the court orders and judgments in sexual assault cases that we have been seeing.
According to Explanation 2 appended to Section 375 of the Indian Penal Code, “Consent means an unequivocal voluntary agreement when the 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.”
The key words here are “unequivocal” and “voluntary”. Meaning, if there is any ambiguity to the woman’s willingness to engage in the sexual act, consent cannot be assumed on her behalf.
This is what the letter of the law says, but the spirit of the law that we see reflected in court orders and judgments is often in favour of the accused.
For example, in the Mahmood Farooqui case, the Delhi High Court in 2017 overturned the trial court’s verdict that had held the director guilty of raping a 30-year-old American researcher. In a key passage of the judgment, Justice Ashutosh Kumar 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.”
The judge did not merely acquit Farooqui citing insufficient evidence, he went one step further and changed the meaning of consent by implying that a woman’s “feeble no may mean a yes”. It is also unclear what he meant by “instances of woman behaviour” – what instances are these? And what is “woman behaviour”? Who defines it? Further, a Supreme Court bench with Justices SA Bobde and L Nageswara Rao called it a “well-written” judgment when the complainant approached the apex court.
For many women who approach the police and court for justice in a sexual assault case, it’s not just the dismal conviction rate of 39% (NCRB data, 2020) that is demoralising – it is the process itself. The insensitivity they face from the police, the probing and humiliating questions of the defence lawyers, and the attitude of the judge that not only decides the verdict in the case but also how the woman is branded at the end of it. The language and phrasing employed in the verdict greatly influences this.
The discourse around sexual assault cases lies within a dangerous binary. If the court convicts the man, the woman is telling the truth. If the court acquits him, the woman is a liar. In the latter instance, the case in the popular imagination becomes an example of a ‘fake’ rape case foisted on an ‘innocent’ man. Either the rape never happened or she consented and complained later.
But, an acquittal does not automatically mean that the complainant was lying about the ordeal. In most cases, it only means that the prosecution failed to prove beyond doubt that the accused was guilty of the crime. The court is required to examine the evidence presented and draw its conclusions. Here, the judge’s understanding of consent, trauma and victim behaviour become key to how s/he reads the case.
In cinema, rape scenes are usually an exercise in voyeurism. The victim is shown to be a woman who screams, runs, and resists with all her might. After the rape, she is visibly traumatised, even suicidal. But in real life, a survivor of sexual assault can have a range of responses to the incident.
They may be confused and conflicted about what happened, considering the perpetrator is someone they’re acquainted with. The perpetrator could gaslight them into thinking it was a ‘misunderstanding’ or that the survivor led them on. It can take them time to come to terms with what has happened and speak about it. Survivors may also have fragmented and incomplete memories of the incident.
The judiciary needs to be cognisant of this when examining the evidence. In the Bishop Franco (verdict in 2022) and Tarun Tejpal (verdict in 2021) cases, the judges pinned the verdict on the behaviour of the survivors after the sexual assault, overriding many other pieces of evidence presented to the court such as corroborating statements from people in whom the survivors had confided.
Once the judge has decided that the woman is lying about the assault, based on their own biases about ideal victim behaviour, the case invariably goes in favour of the accused. For instance, in the Franco case, the judge even fell back on citing a false complaint against the survivor (that was withdrawn) to disbelieve her account. The judgment included voyeuristic details about the nun’s body and her supposed ‘accessory nipple’ that add to the survivor’s humiliation. In the Tarun Tejpal case, his texts to the survivor and apology letter acknowledging his “lapse of judgment” were not enough – it was the survivor’s behaviour after the assault that became the focus of the judgment.
Innocent until proven guilty beyond reasonable doubt is the legal principle followed by Indian courts for the accused. But when it comes to sexual assault cases, it is the victim who is often put on trial and it is up to the prosecution to prove her ‘innocence’.
Take, for instance, the pre-arrest conditional bail order issued by Justice Bechu Kurian in the Vijay Babu (2022) case. The judge acknowledges that “ideal victim behaviour” should not be expected from survivors but goes on to add that “consensual relationships should not be converted into instances of rape”. The bail order already hints that the survivor is a liar and sympathises with the accused – a man who had made the survivor’s name public through a Facebook Live in contravention of the law and fled to Dubai to evade arrest. He has been accused of assault twice previously – by his co-producer Sandra Thomas and his wife.
In 2017, the Punjab and Haryana High Court suspended the sentences of three former law students who were convicted of gangrape and blackmail, concluding that the incident was a “misadventure stemming from a promiscuous attitude and a voyeuristic mind” – the description here is of the survivor and not the convicts. Moreover, the High Court division bench of Justice Mahesh Grover and Justice Raj Shekhar Attri did not find the gangrape violent enough. The bench said that the victim’s narrative “does not throw up gut-wrenching violence that normally precede or accompany such incidents”.
How loudly must a no be said for the judges to believe it wasn’t a yes? How violent should a rape be for the judges to empathise with the survivor? The language used in the judgment can further add to the trauma of a survivor – it can also become a dissuading factor for other women to report sexual assault.
In 2013, the Justice Verma Committee finally recommended that the inhuman and illogical two-finger test that examines a survivor’s sexual history be scrapped. The Committee acknowledged that a woman’s sexual history had no bearing on an incident of rape. Yet, we continue to see instances where the judge is fixated on the survivor’s morality while giving a long rope to the accused. The judiciary should remember who is on trial when writing the judgment and keep constitutional morality in mind.
Not every case can end in conviction. Sexual assault cases usually don’t have witnesses or CCTV footage. Forensic evidence too can be inconclusive, especially when the survivor takes time to file a complaint. The accused has a right to defence and the prosecution must prove the case beyond doubt for the judge to deliver a conviction. But the judiciary can surely make the process far more sensitive and less traumatising to a person who has approached the court in the hope of justice. The judiciary must also introspect and act on the criticism that activists and survivors have laid at its doors for years.
This article is published as a part of the Media Fellowship on Gender for Governance Innovation Labs.
Sowmya Rajendran writes on gender, culture and cinema. She has written over 25 books, including a nonfiction book on gender for adolescents. She was awarded the Sahitya Akademi’s Bal Sahitya Puraskar for her novel Mayil Will Not Be Quiet in 2015.