Is it that hard to figure out if someone is willingly participating in a sexual act? If one of the partners has not agreed, and the other pushes on regardless, it is rape. When the Delhi high court acquitted Mahmood Farooqui of rape charges, it made very unsettling observations about the unwilling woman’s “no” being imperfectly communicated to the man. It blurred the unequivocal definition of consent required by the 2013 amendments to rape laws; it shifted the burden back to the victim, who must now make sure the man has registered and processed her refusal.
This sets a dangerous precedent for rape cases, allowing them to be cast as a tangle of confusions and desires and misunderstandings, weakening the idea that sex must be an affirmative, conscious and voluntary agreement, all the way. That does not take the playfulness or sexiness out of it and make it a rigid contract – it simply means noticing the other person’s reaction, and respecting it.
Contrary to the common idea that a complainant’s word is enough to prosecute a man for sexual violence, women struggle to establish credibility at every step of the investigative and legal process. This hostility still deters women from registering cases or seeing them through. In the Farooqui case, with its observations about the “feeble” no, the high court has diluted the understanding of consent, and stacked the deck against women who seek justice.