The concept of consent is not really complex
As in the Farooqui case, there will be others that need further interpretation
On Monday, the Delhi High court cleared Peepli Live co-director Mahmood Farooqui of charges of raping a US citizen, setting aside a lower court verdict that sentenced him to seven years in jail. Disbelieving the woman’s allegation of rape, High Court gave Farooqui ‘benefit of doubt’ implying that even if there was any sexual act between the two, it was consensual. The court did not stop there. It went on to elucidate the theory of consent – taking everyone by surprise – when it recorded that — a feeble no (by a woman) may mean yes in a sexual act.
The judgment immediately brings to mind a recent award winning movie — Pink – that dealt with the issue of sexual consent and drove home the point that —when a girl says no,… it means a no. And the real issue as in Farooqui’s case and many more cases that will confront courts in future will be to interpret consent and many facets of consent in modern times. Consent — what it means, how it is communicated, what is the thin line between a yes and a no, can consent be assumed, and in an act of passion will ‘No’ necessarily mean ‘No’ and can consent be withdrawn during the act. In Farooqui’s case, the scales of justice tilted in his favour because the judge felt that even though the woman was allegedly gripped with fear in the act she did not communicate the fear.
In law, consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: provided that a woman who does not physically resist to the act shall not by the reason only of that fact, be regarded as consenting to the sexual activity. If the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception – then it is an offence.