Opinion: Feeble, Shaky, Nervous or Otherwise, a ‘No’ Is a ‘No’ When It Comes to Consent

Peepli Live co-director Mahmood Farooqui was sentenced to seven years of rigorous imprisonment for the rape of a 35-year-old American scholar at his house in 2015.

However, in October last year, Farooqui moved the Delhi High Court, challenging his conviction and sentence.

The statements of the witness were examined, all material evidence was presented, and the victim’s conduct after the incident was also thoroughly scrutinised.

But on Monday, Justice Ashutosh Kumar acquitted the filmmaker, giving him the benefit of the doubt, while making retrograde comments that seemed to show little understanding of what consent really means.

The judgement went something like this:

“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. If the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. 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.”

What’s problematic here is not the judgement in general, but this comment in particular. The 155-word excerpt from the judgement is essentially a reiteration of Bollywood’s ‘uski na mein bhi haan hai’ syndrome.

What in God’s name is a feeble ‘no’?

Either an individual wants to be involved in sexual activity, or not. There is nothing ambiguous about sexual consent. So, a feeble ‘no’ will most definitely mean ‘no’.

It is one thing that the accused could not decipher the victim’s intention. And quite another that he assumed her feeble ‘no’ meant ‘yes’. By making such a regressive comment, not only does the judgement infantilise women, harping on the age-old twaddle of them not knowing what they want, it also impedes their agency.

Cases of ambiguous consent continue to plague our courts.

This is troubling particularly in a time when the women in the country are struggling to explain what consent is. It is a great task to stress to men why consent is important and how it must always be given.

There are two things that we need to keep in mind when we talk of consent – that it is a clear and unambiguous agreement, and that it is expressed outwardly through mutually understandable words or actions. At the heart of consent is the idea that every individual has the right to personal sovereignty, and most definitely, it is the responsibility of the one who initiates the sexual activity, to get that permission.

Consent cannot be assumed. Whether you’re strangers, dating or married to that person, you cannot assume that you have the consent to engage in sexual activity with them. This also applies to a person you’ve engaged in sexual activity in the past.

It cannot be assumed that your partner would want to engage in a similar sexual activity at a later point. A person’s silence does not imply consent either.

All sides involved in the sexual activity must feel that they have the authority to stop the activity at any given time. Also, when a person has consumed alcohol or drugs, they are incapable of giving consent. That cannot be used as an excuse by the perpetrator to defend their actions.

What is also extremely important is that sexual assault is never the victim’s fault. A recent Punjab and Haryana High Court order is worth mentioning here. It suspended the sentence of three youths convicted of rape of a fellow student over the victim’s relationship with the accused, who had allegedly blackmailed her into having sex with him.

“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 abused themselves are young, and the narrative does not throw up gut-wrenching violence, that normally precedes or accompanies such incidents,” the order said.

Once again the idea of consent was tossed out of the window.

There is absolutely no problem with the victim’s casual relationships with friends and/or acquaintances, her adventurism and experimentation in sexual encounters, as long as they were consensual.

By saying that her morality had anything to do with rape, the order leaves no room for consent or the lack thereof.

Consent is respect. When consent is not involved, it is always sexual assault, and there is nothing ambiguous about that.

So, whether it is feeble, weak, shaky or nervous, ‘no’ will always mean ‘no.’

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