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Court overturns rape conviction, says ‘a feeble no’ could mean yes

Posted at 8:07 AM, Sep 27, 2017

DELHI, India – An acquittal in a high-profile rape case in India has reignited debate over the meaning of consent after a judge set aside the conviction of a Bollywood filmmaker, saying “a feeble ‘no'” could still signal willingness on the part of an alleged victim.

Mahmood Farooqui, the co-director of the hit Bollywood film “Peepli Live,” was sentenced to seven years in prison in 2016 after he was found guilty of raping a Columbia University graduate student at his home.

Farooqui’s lawyers challenged the 2016 ruling in Delhi’s High Court. In their appeal, they called attention to the lack of evidence that Farooqui was alone with the victim in his house on the night of the alleged incident. They also made an alternative argument, claiming that “if at all, such an occurrence had taken place” it was with the alleged victim’s consent.

In throwing out the conviction on Monday, High Court Judge Ashutosh Kumar said Farooqui deserved the “benefit of the doubt” on all points.

Kumar said it was not clear whether the incident, as outlined by the alleged victim, took place. Moreover, he added, Farooqui had “no idea at all” that the alleged victim had not given her consent.

“It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but where there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant,” Kumar observed in his ruling. “Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.”

Elsewhere in his ruling, Kumar ruled that “instances of woman behavior are not unknown (sic) that a feeble ‘no’ may mean a ‘yes’,” particularly in cases where the parties involved “are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts.”

‘Erodes the definition of consent’

The ruling has revived a debate in India over the meaning of consent in rape cases.

“In this judgment, the court has unfortunately elided over the legal definition of consent that, that many of us worked to bring into law in 2013,” said Karuna Nundy, a Supreme Court lawyer who played a role in reforming India’s sexual assault laws in the wake of the brutal gang rape of a physiotherapy student on a moving bus in Delhi in 2012.

Jyoti Singh Pandey later died, and anger about her case led to nationwide protests and triggered reforms to India’s sexual assault and harassment laws.

Indian law stipulates that consent must be “unequivocal,” or in other words, absolutely clear.

In the case involving Farooqui, the victim’s lawyer maintains that she did not give consent.

“She protested, she pushed him off, he was trying to take off her undergarments, she kept yanking them back up, but he was stronger than her, he pinned her down. Under those circumstances, it is therefore startling to hear this series of events recorded as a ‘feeble no,'” Nundy told CNN.

The ruling was met with frustration in legal circles. “(It) completely erodes the definition of consent,” said Jhuma Sen, a professor at Jindal Global Law School. “The court seems to be creating this additional defense that the accused must have been made aware (by the victim).”

According to court documents, the woman had met Farooqui in 2014, after she arrived in India to research her PhD. She alleged that the assault at the center of the case occurred during a visit to Farooqui’s home in March 2015.

The researcher’s lawyers now plan to appeal the decision in the Supreme Court.

“The high court acquittal order is wrong on facts and in law,” said Vrinda Grover, the lawyer appearing for the victim told CNN.