In acquitting Mahmood Farooqui, Justice Ashutosh Kumar has rewritten the definition of rape and introduced a defence of a mistake made in good faith about the absence of consent by a woman, justifying the rape and taking it out of the definition of rape . This on the pretext that they were persons of “letters” and known to each other, hence a “feeble” no was not good enough. This assumes that the accused admits to having sex but claims that he understood her “no” to mean “ yes”. The accused made no such claim but said that there was no opportunity to have sex for want of time.
This made it necessary for the judge to disguise the defence as being one of giving the accused the benefit of the doubt. But in doing so, the judge forgot that being a defence of mistake of fact, the burden of proving the mistake was on the accused. The outcome is a judgment which, under the guise of evaluating the evidence on absence of consent, gives every man a defence to say he understood the no to mean yes, with devastating consequences for all women, imposing a burden on them to prove that the man actually had the intention to rape. It will no longer be sufficient to affirmatively prove that she did not consent, she will also have to prove that the man was in his senses, that he knew what he was doing, and that he was not confused for any reason whatsoever (in this case by being bipolar). It is interesting to note that being intoxicated is not a defence for acquittal but being bipolar is a sufficient cause for confusion. Who knows, we may see a sudden growth in bipolar men of “letters”!
Apart form the above sleight of hand on converting a defence into a question of burden of proof being on the prosecutrix , the judgment is replete with active ignorance of law. This is also of a piece with the judge looking forok for active resistance by a woman perhaps with the necessary injury on display in court, in express violation of the 2013 amendments which say that absence of injury cannot lead to the conclusion that there was no resistance . Though many studies are stated to exist on what constitutes consent between adults, none are cited for review. Also forgotten is the fact that the law has been amended to ignore the past sexual history of a woman in reaching a conclusion on the question whether rape took place on this specific occasion.
Selective amnesia needs a different explanation drawn from outside the judgement. And to my mind, that can only be disapproval of the lifestyle of the woman in question. There is a bias against all women of “letters”, women who interact with men on terms of equality expecting the same form men, women who love men who are not necessarily their husbands, women who may have consensual sex on some occasions but not on demand without consent.
On a review of more than 200 cases on punishment for rape, I found that most convictions are made when rape is coupled with murder, when the accused is a stranger to the woman, and when the victim is a minor. It is rare to come by a case where a man is punished when the woman is known to him or when she is a woman with agency and a mind of her own in matters of sexuality.
To reach the conclusion that the victim did not communicate — “or least it is not known whether” (this despite her no) she had communicated her denial of consent to Farooqui, Justice Kumar relies on theories of selective memory. While theories of selective memory may make good neuroscience, they do not make good law if the factual foundation is not laid for coming to the conclusion that her memory was in fact selective, not just maybe selective.
Acquitting Farooqui, the judge 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.”
Let us begin at the beginning, the burden of proving that rape took place is on the prosecution. In this case, the judge considers the woman to be an “unimpeachable witness” when she deposed that she did not consent to oral sex. There the matter should have ended and a finding of guilt should have been entered. Instead the judge goes on to discuss what could be the defence of the accused. Once again there was no need to second guess the defence, since the case of the accused was one of denial, that no opportunity arose for oral sex, that given they were alone for just a few minutes, there was no time for sex.
While the Mathura case represented a black letter day for adivasi women, this one represents a black letter day for the woman of “letters”. It seems we are in a no win situation. We cannot expect equality and expect that we will not be raped. The sooner the Supreme Court overturns this judgment, the better it will be for the women of this country
Indira Jaising is a Supreme Court lawyer
The views expressed are personal