Coercion under blackmail can’t be deemed consent

Perhaps the judges forgot that good girls never say no and that we bring up our daughters to ‘adjust’ and never complain. Either way, it seems ironic that judges in different courts this past month seemed to be penalising women for failing to say no forcefully enough.

At Chandigarh, two high court judges suspended the sentences of three law students convicted by a lower court of raping and blackmailing a fellow woman student. The men are out on bail.

The order goes on to make sweeping observations on the woman student. Did she complain? Where was the ‘gut wrenching violence which normally accompanies such situations’?

Their lordships seem to miss the point. Never mind that she smoked or – gasp – had condoms in her room. Coercion under blackmail cannot be deemed consent.

The idea of consent popped up again a few days later when the Delhi High Court overturned the rape conviction of filmmaker Mahmood Farooqui.

Although the judge concedes that the woman did say no, it was not, for him, forceful enough. “A feeble no may mean a yes,” noted the judge. With respect, he’s wrong. This is not a bad film-script with a coy heroine. In life and under the law, no means no.

In reinterpreting the meaning of consent in two recent cases, judges are creating a dangerous precedent: future rapists can plead that their victims either didn’t say no, or didn’t say it strongly enough.

At the core of these orders lies a deep and dark kernel of patriarchy. Does a woman’s right to legal redressal get diluted by her lifestyle choices or if she has exchanged past intimacies, say a kiss, with her rapist?

Writing for this paper, senior lawyer Indira Jaising notes that largely it’s three types of rapes that result in sentencing: those coupled with murder, where the rapist is a stranger or where the victim is a minor.

Are we then creating a hierarchy of victims, with assertive, independent women less deserving somehow of justice? The judiciary needs to recognise women as independent, adult authors of their own destiny.

How does a court justify annulling the marriage of a 24-year-old woman and granting her custody to her father? Mercifully, the Supreme Court sought to right a previous order for an NIA probe into Hadiya’s marriage by declaring that the father cannot insist on custody. Yet, the question remains: Why does a grown woman need custody at all?

In 2013, widespread protest by women led to tougher laws on rape. But four years later it is obvious that male attitudes have remained frozen in time.

Perhaps one way to enforce change is by teaching our daughters to say no. No to regressive orders. No to control. No to being treated as children. Namita Bhandare writes on social issues and gender. The views expressed are personal