The Farooqui acquittal is disastrous for women

In acquitting Mahmood Farooqui, Justice Ashutosh Kumar has rewritten the definition of rape and introduced a defence of a mistake made in good faith about the absence of consent by a woman. This on the pretext that they were persons of “letters” and known to each other, hence a “feeble” no was not good enough. This assumes that the accused admits to having sex but claims that he understood her “no” to mean “yes”. The accused made no such claim but said that there was no opportunity to have sex for want of time.

This made it necessary for the judge to disguise the defence as being one of the benefit of the doubt. The outcome is a judgment which gives every man a defence to say he understood the no to mean yes, with devastating consequences for all women. It will no longer be sufficient to prove that she did not consent, she will also have to prove that the man was in his senses, knew what he was doing, and was not confused for any reason whatsoever (in this case by being bipolar).

Apart form the above sleight of hand on converting a defence into a question of burden of proof being on the prosecutrix, the judgment is replete with active ignorance of law. This is also of a piece with the judge looking for active resistance by a woman perhaps with the necessary injury on display in court, in express violation of the 2013 amendments which say that absence of injury cannot lead to the conclusion that there was no resistance. Also forgotten is the fact that the law has been amended to ignore the past sexual history of a woman in reaching a conclusion on the question whether rape took place on this specific occasion.

There is a bias against women of “letters”, who interact with men on equal terms, love men who are not necessarily their husbands, may have consensual sex on occasion but not on demand without consent.

On a review of more than 200 cases on punishment for rape, I found that most convictions are made when rape is coupled with murder, when the accused is a stranger to the woman, and when the victim is a minor. It is rare to come by a case where a man is punished when the woman is known to him or when she is a woman with agency and a mind of her own in matters of sexuality.

Acquitting Farooqui, the judge concluded that “it remains in doubt as to whether such an incident...took place and if at all it had taken place, it was without [her] consent/ will … and if it was without [her] consent, whether the appellant could discern/understand the same.”

Let us begin at the beginning. The burden of proving rape is on the prosecution. In this case, the judge considered the woman an “unimpeachable witness”when she deposed that she did not consent to oral sex. There the matter should have ended and a finding of guilt been entered. Instead the judge goes on to discuss what could be the defence of the accused. There was no need to second guess the defence, since the case of the accused was one of denial, that no opportunity arose for oral sex, that given they were alone for just a few minutes, there was no time for sex.

While the Mathura case represented a black day for adivasi women, this one represents a black day for the woman of “letters”. It seems we are in a no win situation. We cannot expect equality and expect that we will not be raped. The sooner the Supreme Court overturns this judgment, the better it will be for the women of this country