Instances of woman behaviour are not unknown that a feeble “no” may mean a “yes”.
That is an actual excerpt from a judgment of the Delhi High Court. And in case you’re still wondering, the judge was referring to a woman’s ‘feeble no’ for sexual intercourse, not an invitation to dinner or drinks.
On 25 September, Justice Ashutosh Kumar delivered his judgment in a rape case against ‘Peepli Live’ co-director Mahmood Farooqui. The judgment has since courted controversy due to certain excerpts which deal with the judge’s understanding of consent.
Manufacturing Consent Where None Exists
The court says that yes may not necessarily always mean yes, and no may not necessarily always mean no. The judgment further states that a woman’s ‘feeble no may mean a yes’.
This leaves us confused. Rape is defined as sexual intercourse performed without the victim’s consent. So ‘a feeble no’ is still a ‘no’, right? And no means no.
So how exactly does the feebleness of the ‘no’ change anything?
Also, how do we even measure whether a ‘no’ is feeble or strong, your Honour? By the volume at which it is declared? By an act of physical resistance to accompany it?
Do women now need to be told that every time they refuse to have sex, they must shout and let the man know? Or else, it might be construed as ‘feeble’.
Taking a Cue From Bollywood?
“Uske na mein bhi haan hai” is the stuff of misogynistic movies, your Honour. It cannot possibly become a cornerstone of Indian jurisprudence.
And, if it is the movies that need to serve as inspiration, why not this one?
A Louder "No" Needed From the Academically Proficient?
Read the following excerpt from the Delhi High Court judgment.
“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.”
The court is basically differentiating between the feeble no of uneducated women and the feeble no of educated women.
But why? What does a woman's educational qualifications have to do with her agreeing to having sex or refusing it?
How do you define who qualifies as a "conservative person not exposed to the various ways and systems of the world"?
Why is their saying ‘no’ to sex any different from the ‘no’ of an educated woman?
And spare a moment for the last line of the excerpt - "It would be really difficult to decipher whether little or no resistance and a feeble “no”, was actually a denial of consent."
Why should it be difficult to decipher the word ‘no’?
Why should a woman's ‘no’ be taken as a ‘yes’, especially since what follows is rape?
Why decipher anything when the woman is giving you an answer? And that answer is that she DOES NOT want to have sex. And whether she is ‘intellectually/academically proficient’ or a person of letters makes no difference to that.
Essentially, dear Delhi High Court, no means no. Feeble or otherwise. And it should only be ‘deciphered’ as such.
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