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Editorial

More circumspection needed in commenting on rape cases

October 05, 2017 03:21 PM

By Vipin Pubby
CHANDIGARH: Two recent high court judgements and observations, pertaining to rape cases, have brought the focus on consensual aspect of such incidents. The judges, in separate cases, have brought in the angle of promiscuity and 'feeble' resistance as indicators that the victim could have been a willing partner.

Several feminists and others have taken a critical view of the observations stressing that a no is meant to be a no even in cases where there had been sexual relationships in the past. They differ from the observations of judges that the accused could be let off because there was some "misunderstanding".

In one of these cases the rape accused was let off and his conviction set aside while in the other, the accused were allowed to be set free on bail within four months of their conviction.

In the first case, the Delhi High Court set aside the rape conviction of Mahmood Farooqui, director of Peepli Live, who was convicted last year of raping a Columbia University graduate student in his New Delhi home. In a lengthy ruling, Justice Ashutosh Kumar said it was likely that Farooqui had "no idea" the alleged victim was an unwilling participant in an act of oral sex, partly because she feigned orgasm.

In his lengthy judgment, the judge said that "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 then went on to say that the “affirmative model” of consent – “meaning thereby that ‘yes’ is ‘yes’ and ‘no’ is ‘no'” – may not always be universally acceptable “as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other.”

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While setting aside the trial court order which had awarded a seven-year jail term to Farooqui, Justice Ashutosh concluded that “it remains in doubt as to whether such an incident, as has been narrated” by the victim, “took place and if at all it had taken place, it was without [her] consent/will … and if it was without [her] consent, whether the appellant could discern/understand the same.”

In the other case, a division bench of Punjab and Haryana high court suspended the sentence of three former law students of a private university in Haryana, who were convicted of gang rape and blackmail, and observed that the victim’s statement offered “an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind.”

In this case, an 18-year-old student of the University had lodged a complaint alleging that her former friend Hardik Sikri was blackmailing her with some of her nude photos and had forced her to establish sexual relationships with him and two of his friends, Vikas Garg and Karan Chhabra, all students of the same university.

The three were sentenced on May 24 by a Sonepat trial court. While the main accused Sikri and Chhabra were sentenced for 20 years each for gang-raping and blackmailing the junior management student for about two years, Garg was handed a seven-year jail term for rape and other offences, including criminal conspiracy and transmitting objectionable material.

All the three challenged the trial court’s order and sought bail pleas as well. However, in its judgment delivered on September 13, the court dealt with their bail pleas only.

While granting bail to the three accused, the judges observed that the testimony "of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer compelling reasons to consider the prayer for suspension of sentence favourably, particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompanies such incidents, ” the division bench of Justice Mahesh Grover and Justice Raj Shekhar Attri said.

The judges further said that a careful examination of her statement again offered “an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind.” The court also noted that condoms were found from her hostel room after it was searched and she admitted to taking drugs and alcohol and that she was also in possession of a sex toy. The judges did state that nothing they had said in the orders should influence the merits of the appeal but their observations have kicked up a storm.

The core question in both the cases is whether the victim had given her consent for the sexual act. While the basic principle of criminal law is that the accused is given benefit of doubt, several court judgements in rape cases have relied more on the testimony of the victim in rape and sexual assault cases and rightly so.

Two other high profile cases in the recent past further strengthen the point. The widely reported Dera Sacha Sauda chief rape case had led to conviction and sentencing of 20 years in the rape of two sadhvis about 20 years ago. Though neither medical evidence or any other proof was available, the Dera chief was convicted solely on the testimony of the two sadhvis. In the other case, the courts have chargesheeted former editor of Tehelka, Tarun Tejpal, for rape and sexually assaulting a colleague inside a hotel lift without her consent.

Section 375 of the Indian Penal Code (which criminalises rape) states that, “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”.

In both the cases under review, there is no evidence of "unequivocal voluntary agreement". In the university gang rape case, judges do not seem to have taken other aspects, like the fear of public shaming and stigma, into consideration and have made observations which could provide justification for accused in such cases in the future too. It is very difficult for any victim to even have the courage to admit that such an act had ever taken place. The victims, particularly in India, would be highly conscious of the danger of being ostracised by society, including her own family members, relatives, friends and neighbours.

It is very much a possibility that the victim in the case got sucked into the quagmire of rape, threats, blackmail and exploitation to avoid public shaming and ostracism. It is clear as daylight that she could not have given her consent to such exploitation. Similarly in the Columbia University student case, her hurt forced her to lodge the complaint which she did without expecting any personal benefit or favour. The judges, by interpreting their actions in reporting exploitation as consent, have erred in their conclusions and need to be more circumspect in making such observations.

Coutesy: www.lokmarg.com

The writer Mr.Vipin Pubby is former Resident Editor of The Indian Express Chandigarh.

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