Judge Rules ‘A Feeble No’ Can Mean Consent in Overturned Rape Conviction of Bollywood Director in India

September 27, 2017

A rape conviction against an Indian film director was recently overturned by a local court after the judge ruled that the victim’s “feeble no” may have actually meant consent.

Delhi high court’s baffling ruling in favor of film director Mahmood Farooqui has angered critics, with women’s rights activists stating that it may create a terrible precedent on how consent is interpreted, according to the Guardian.

Last year, Farooqui was sentenced to seven years in prison for sexually assaulting an American postgraduate student while she visited his home in India. It was the first time that an Indian court had recognized forced oral sex as rape.

According to the woman, Farooqui forced himself on her while drunk. Despite repeatedly saying no, the director appears to have ignored her. She said she tried to resist when he started to remove her clothes but he overpowered her and restrained her arms.

In Farooqui’s appeal, his lawyers argued that the incident never took place, but if it did, he may not have been aware the victim did not give consent. The conviction was overturned on Monday, with Justice Ashutosh Kumar stating that he had to give Farooqui “the benefit of the doubt”.

He pointed out that despite her claims that she had repeatedly said no and tried to physically resist to his advances, she eventually and went along with it.

“Instances of woman behavior are not unknown that a feeble no may mean a yes,” the judge was quoted as saying.

However, supreme court lawyer Karuna Nundy failed to see any sound logic in the ruling and expressed that it sets a dangerous precedent to other victims in the future.

“It muddies the waters and will confuse a lot of the issues around consent,” she said. “What the law says is that consent may be silent, it may be non-verbal, but it has to be unequivocal. And so when somebody says no – even when you think it’s feeble – and there is no subsequent unequivocal yes, then there is no consent.”

In her testimony, the victim stated that she stopped resisting out of fear she could be harmed, citing a rape and murder case in 2012 which sparked international outrage. Farooqui reportedly released after she feigned an orgasm so that Farooqui would then stop.

In the judge’s view, the victim’s act of self-preservation might have sent Farooqui a message that she consented, “even though wrongly and mistakenly”.

“What [Farooqui] has been communicated is … that the [alleged victim] is OK with it and has participated in the act,” he said.

Judge Kumar further explained that “in an act of passion, actuated by libido,” consent could be a complex matter, “and it may not necessarily always mean yes in case of yes or no in case of no”.

According to him, if one of the parties was “a conservative person”, or “in some kind of prohibited relationship”, a firm “no” would not have been necessary.

“But [the] 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,” he said.

“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.”

Feature image via Wikimedia Commons/ Nomu420 (CC BY-SA 4.0)

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