A NO IS A NO ONLY WHEN COMMUNICATED
Ever since Mahmood Farooqui was set free by Delhi High Court, feminists and media has gone in overdrive. May I say that scandalous reporting, “A No does not always mean No, says Delhi HC” and sorts have just added the fuel to the fire.
It took me some time to read the judgment and see the import of the judgment and what he meant a “no may not always mean no, and it has to be deduced from the attended circumstances”. And then I read few of the reports on this judgment and realized that a Hindu and a Muslim can’t discuss “COW” as a bovine animal, it would always be an unequal fight where the party who screams louder would be heard.
One needs to understand the judgment in its complete entirety and light of facts which were examined to make an opinion. The factual matrix of the case is as follows:
The prosecutix was known to Mahmood Farooqui and they both were involved in lot of physical contacts including kissing, groping and so on on many occasions. The lustful relationship was of such level when on one day the wife of Mahmood Farooqui went out of the room, they kissed each other. They routinely exchanged SMSes and on the fateful day at the house of Mahmood Farooqui they consumed liquor and exchanged kisses. Then Mahmood Farooqui asked for sexual favors from the prosecutix, who kept quiet and Mahmood Farooqui performed cunnilingus with her and she faked orgasm. In all this from exchange of kisses to Farooqui performing cunnilingus prosecutix once said a feeble “NO” to Mahmood Farooqui and then she kept quite because the Nirbhaya incident was fresh in her mind. And then she felt bad for herself and wrote an affectionately remonstrative email to Mahmood Farooqui that the other day they went little too far. Then after few months, after due counselling and consultations, she decided to file an FIR because she thought she was raped on that fateful day.
Delhi HC after details scrutiny of facts and in a detailed 82 page judgment stated many contradictions in the story of the proscutix and then came to a conclusion that
“In the present case, the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant. If that were not so, the prosecutrix would not have told the appellant that he had gone too far on that night. At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.”
If the judgment had left the finding till this level, I think media and feminists would have a different reason to blast the judgment. It is only because the judgment went a step further and added the below paragraph where it differentiates feeble no between two strangers and two known people who had past history of sexual innuendos amongst them that all hell broke loose.
“Instances of woman behavior are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied…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.”
I fail to understand why one line is taken out of context and such a hue and cry is made out of it. Consent is often rightly presumed on the basis of actions. Non-verbal communication is more strong than verbal communication. If I invite a person to cup of coffee and he comes and I order two cups of coffee and we have coffee, that person, later, under no circumstances, accuse me of making him drink coffee against his wishes. The person had more than one chance of saying no and when he did not communicate his negation to me and keeps his negation in his heart and mind, how the hell am I going to decipher that he did not want to have coffee.
In a bid to make sexual offences laws more friendly towards women, we have added many caveats to the same which are stringent against the accused if not confusing. Let’s study the explanation in definition of rape:
Explanation 2:- Consent means an unequivocal voluntary agreement when a 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 of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Now, how does Mahmood Farooqui understand the party is consenting or not. If a lady exchanges kisses, hugs and other sexual advances and goes to an extent that she kisses him when his wife briefly goes out of room. Then on the fateful days exchanges kisses freely and does not resist the further act, how should have Mahmood Farooqui gotten into her heart and mind to know that her consent now onwards is vitiated with fear of “Nirbhaya” running through her mind.
My dear feminazies, a “no” is a “no” only when communicated in such circumstances and not if not communicated. We should not allow anyone to change his/ her confused YES to a NO on a later date after deliberation in a criminal trial, which affects the right of another person’s freedom and life.
And lest, I take your absurd argument to its equally scandalous interpretation, one would have to agree that even during sex when a woman moans ever so softly “Oh No, Oh No” a man should stop the act in between, lest it be considered a rape.
Ah! Even when I write, I can hear few feminazies say, “Yes, a man should stop then and there and check, whether she was moaning or saying NO and ask for her consent again before proceeding with the act.”
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