An Indian court has overturned a rape conviction against a film director, ruling that a “feeble no” can signal consent, especially in cases where the alleged victim is well-educated.
Women’s rights activists said the decision “muddies the water” around consent in a country struggling to curb high levels of sexual violence, rampant street harassment and deeply entrenched patriarchal attitudes towards sex.
Mahmood Farooqui was sentenced to seven years in prison in 2016 for sexually assaulting an American postgraduate student while she was visiting his home in Delhi.
The woman claimed Farooqui, the co-director of the 2010 Bollywood film Peepli Live, forced himself on to her while drunk, ignored her when she repeatedly said no and restrained her arms when she tried to prevent him from removing her clothes.
Appealing against the decision in Delhi’s high court, lawyers for Farooqui argued that the encounter never took place and that if it had, he had not been aware the victim did not consent.
Justice Ashutosh Kumar overturned the conviction on Monday, concluding he had to give “the benefit of the doubt” to Farooqui on both arguments.
He found it was unclear whether Farooqui had known the alleged victim did not consent because, even though she testified that she had repeatedly said no to his advances and tried to physically resist, she accepted she had ultimately gone along with it.
“Instances of woman behaviour are not unknown that a feeble no may mean a yes,” he said.
Karuna Nundy, a supreme court lawyer who advised on India’s most recent reform of sexual assault laws, said she was concerned about the precedent the judgment set.
“It muddies the waters and will confuse a lot of the issues around consent,” she said. “What the law says is that consent may be silent, it may be non-verbal, but it has to be unequivocal. And so when somebody says no – even when you think it’s feeble – and there is no subsequent unequivocal yes, then there is no consent.”
The alleged victim told the court she stopped resisting out of fear she could be harmed in the same manner as a Delhi physiotherapy student whose rape and murder in 2012 sparked international protests. Farooqui only released her when she feigned an orgasm in order to persuade him to stop, she said.