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Sex sans consent

Ever since the Delhi High Court acquitted Mahmood Farooqi the co-director of the film Peepli lIve, much has been written about the legal import of the word consent. Can sex without affirmative consent on both sides be taken as rape? What is hard to understand is whether in any particular case, consensual sex has been performed. If one party has not agreed, the act can be considered rape, even marital rape. The Delhi High Court had stated that the woman in this case did not firmly express her dissent. The definition of consent according to the 2013 amendments to the rape law makes it the job of the victim to prove that she had said “no” to sex. It has to be clear that the man gets the woman’s refusal clearly expressed and understood. The ruling of the High Court case sets a bad example for rape cases. There seems to be a great deal of confusion about the content of willingness and misunderstanding. Sex has got to be an affirmative, conscious and voluntary participation by both parties to be a legitimate act. It is a firm contractual relationship. The other person’s reaction in the act has to be equally important.

It may be a fact that the woman complainant has an advantage in all these cases. Her statement is enough to prove that a man has committed sexual violence. On the other hand, women have great difficulty in establishing their credibility through the investigative and legal process. That is why women are often reluctant to register cases and proceed with them. In the Farooqi case, by ruling that the woman’s “no” was not clear the High Court has perhaps obscured the meaning of consent. It may put women up against it in future cases to prove their lack of consent in a sexual act.

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