Sexual consent key factor in defining sexual assault: High Court

high Court

Delhi High Court questioned a woman’s sexual consent by raising the question that whether a woman’s ‘yes’ is in fact a ‘yes’ and vice versa by absolving Mahmood Farooqui of rape charges on the ground that he might have misinterpreted the ‘no’ of the woman as her consent to engage in sexual act with him.

Mahmood Farooqui, the filmmaker and Peepli Live co-director, was found to be guilty of raping a US citizen of Indian origin in 2016. However, he protested against the verdict in Delhi High court which might shake the norms of traditional consent models.

An FIR was lodged by Delhi Police on June 19, 2015 against Mahmood Farooqui by a 35 year old US citizen, a researcher at Columbia University, who accused him of raping her at his residence on March 28, 2015. The trial that started on September 9, 2015 came to the conclusion that Farooqui was guilty of the crime and he was subjected to seven years in jail along with a fine of Rs 50,000.

HIGH COURT

The chain of events took an unexpected turn when the filmmaker challenged the verdict at Delhi High court and tried to prove himself innocent by claiming that might have misinterpreted the woman’s ‘no’ as a feeble ‘yes’. As a result, the Delhi High court decided to give benefit of the doubt and decided to free him of the charges pressed against him by the prosecutrix.

In order to state the grounds on which the high court decided to absolve Farooqui, the theory of sexual consent was laid forward by the high court. “Sexual consent would be the key factor in defining sexual assault. There is a recent trend of suggesting various models of sexual consent. The traditional and most-accepted model would be the ‘affirmative model’, meaning that ‘yes’ is ‘yes’ and ‘no’ is ‘no’. However, there would be some difficulty in the universal acceptance of the aforesaid model of consent.” The court implied that the traditional theory can be applied in case the two people involved are strangers but, “the same wouldn’t be the situation when the parties are known to each other, are intellectually/academically proficient, and if there has been physical contact in the past. In such cases, it can be difficult to decipher whether little or no resistance and a feeble ‘no’ actually amount to denial of consent.”

high Court

The prosecutrix argued that she had submitted in to his sexual advances due to fear but the High Court ruled out her argument by saying that she had not expressed her fear or displeasure to the appellant and could have faked a climax to put an end to it. And since there was no communication between the prosecutrix and the appellant regarding the fear, the appellant falsely believed that she had willingly participated in the act which means that Farooqui was not aware of the fact that the act was forced upon her because of the fear she had.

The debate has concreted the traditional model of sexual consent by acquitting the filmmaker and stated that if the consent is not conveyed in a clear manner but is shrouded, it can create confusion in the mind of the other party.

MY OPINION

The verdict by Delhi High Court is tremendously flawed in several legal ways. The filmmaker on being accused, responded by saying that the incident didn’t occur at all and he was wrongly accused of the crime. However, the prosecutrix has legal and valid proofs to prove him guilty in forms of emails that she exchanged with him in which she expressed her displeasure to which appellant replied by apologies. This proves that the act did happen and Farooqui had merely fabricated his plea.

Later, he tried to escape the verdict by claiming that he was unaware of that the prosecutrix  had given in under the fear and she had consented to the act which is in absolute contrast to the plea he had made before.

Legally, a person can either contest or concur with the arguments made by the other party but cannot do both. Going by his two contradictory pleas, the judgment of Delhi High Court is questionable and erroneous.

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