When a court decision on rape became fodder for TV debate

The TV debates and the commentary around the Delhi HC order acquitting Mahmood Farooqui have stayed true to the binary but there are many kinds of nos that can exist in a sexual encounter

WrittenBy:Abhinandan Sekhri
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Earlier this week as the Delhi High Court reversed the rape conviction of Mahmood Farooqui, studios and newspapers came alive with a much-needed discussion on consent.

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Having read some parts of the judgment there is no doubt that the judge has put out a very poorly-worded ruling that could set a terrible legal precedent. Defence counsels can cite this case to state that a woman’s no was not strong enough or was too feeble, and that’s dangerous. What happens to rape cases where the victim comes from a marginalised community and is too scared to say an emphatic no to her rapist out of fear?

This is not the first time a judgment has reinforced some primitive ideas and mores. However, the conversation and discourse around consent and sexual intimacy too seem to have gone into a zone that is not entirely rational or sensible. It is the latter I want to address through this piece. Let me state once more emphatically that this is not an article on the judgment, how it is worded or the merits of the case that has triggered the conversation. This is a critique of the TV studio debates and commentary that want to force strict views on a complicated issue rather than explore and examine the layers of consent. It is important to have an honest conversation on consent and its complexities. Such judgments should trigger these conversations, rather than go down the binaries one is getting too used to in any conversation.

As must be clear by the over-defensive opening, I write this piece with trepidation and a certain amount of awareness that it is possible to interpret this as justifying undesirable sexual advances even though that is not what it is doing in my view, it is important I acknowledge that it might seem that way. Given that the law empowers women to say “No” that must be accepted as “No” under any circumstance, creates a sharp demarcation of any grey area.

I do genuinely find troubling the nature of the conversation around sexual intimacy as has been framed by TV news debates and commentary such as this, this, and this. I have very consciously not used the word consent (but sexual intimacy) since there should be no ambiguity in what consent is and what it is not. The problem is that the discourse around intimacy is misleading and over the top, maybe not as troubling as the lack of awareness of the concept (consent) for many if not most Indian males, but troubling nevertheless. Sexual intimacy is more complex and nuanced than the yes and no being put out in articles and studios.

This entire discussion is about an experience which from start to finish can go through several ups and downs. To discuss this honestly would require sometimes a graphic description of differing circumstances. Such a discussion would not only make it really uncomfortable for many panellists and viewers but also spiral into a salacious and voyeuristic zone, taking away from the seriousness of the issue.

What one can say without squirming or coying out is this. Sex is used to establish authority, to humiliate, bully or simply brutalise. In those cases, there is seldom any ambiguity or a grey area. When it comes to people in relationships, then sexual intimacy is used in many ways. Many relationships at some level or at some stage have aspects of contest, negotiation, incentive, power games, deception, honesty, emotional control and combat. Men and women play on insecurities, weaknesses, strengths and desires. Sex is often a part of this struggle for an equilibrium. It is not a bad thing. It is not always some sort of a duel with a winner and loser or aggressor and victim.

When one is getting intimate (especially when you are young) there is apprehension and insecurity, not just in anticipation and hindsight but at the time of the act itself and the build-up to it. Not all intimacy and consent ends in sex, and not all reluctance and hesitation ends in aborting the proceedings (trying to use a neutral word).

If you were to go by this video, you’d think the guys asks a girl if she wants to have sex, she says no (or yes) and that’s that. Like you want a coffee? No? Okay then! If that’s how you’ve been going about it, expect no’s for the rest of your life.

Are we now to accept that there is no sense of unpredictability, teasing, fun, adventure, uncertainty, disappointment, elation and bliss associated with sexual intimacy? Is it now replaced by a yes or no, before you were to even lean forward for a brush of lips or tucking a tuft of hair behind someone’s ear?

For anyone who has negotiated life from the cocky teens, the uncertain but excitable twenties and the relatively certain yet exasperating thirties (forties, you’re done and dusted) knows intimacy changes with age, people, cultures and the approach to physical needs and desires. It is never a formula or a black and white option for both men and women. And it is certainly not always a yes–no equation. There is dithering and enthusiasm, there is passion and regret, there is panic and calm and self-doubt, excitement and boredom. Sometimes all in one evening and many yeses and nos along the way. And in that entire spectrum playing out, there are many unsaid, said, implied and understood grey areas. The clinical nature of these encounters that one has heard over the past few days ignore that canvas altogether. That is unhealthy from a social point of view.

On Mirror Now, Faye D’Souza proclaimed, “Anything that happens after the word ‘no’ is rape.” That to me is a ridiculous overstatement. In the current environment, it could be taken as literal. Especially, since it comes from someone as smart and reasonable as her and not her noisier slightly demented sister channel Times Now’s anchors. If that indeed is the case, there are many happily married rapists and victims around us bringing up wonderful kids. Reducing the discussion thus turns us into liberal khaps. I pause to re-state that there is a problem of understanding consent in men, especially Indians, but I am not sure we are going to understanding or explaining this in the most sensible way.

Yes, we live in a society that needs to tell its daughter that you can say no and it means NO! We need to tell our sons that sex is not an entitlement or a right, and understand when to back off. But is that what we are doing? Or are we turning something that is often ambiguous yet instinctive, risky but rewarding and most of all leads to beautiful relationships and friendships that last lifetimes into legalese and a codified procedure. Like some sort of call centre experience with the clarity of – dial 1 for yes, 2 for no and 3 for maybe tomorrow, if you brush your teeth and don’t smell like an old sock.

Can every person reading this claim that every intimate encounter that was consensual and innocent has never had a no? A no preceded or followed up by a

“No. First, tell me where is this going?”

“No. This is not a good idea, I’m moving cities…. Okay, what the hell.”

“No, it’ll get messy and complicated. What’s wrong with what we have?”

“Let’s not. We’ll ruin our friendship.”

“No. You’re emotionally too distant” etc etc etc.

These are lines from the lives of people all around us. A couple of questions at stage one of an intimate proceeding followed by some answers and some banter and chatter of logistics, commitment, emotional availability, assurances etc move things on or not. In that entire space ‘no’ comes up often. And anyone with half a brain knows when it is a denial of consent, and when it is an invitation for a “chat” or extracting information or commitments or a part of the entire contest that relationships can be.

Women and men (yes, them too) can often feel that a consensual intimate encounter has been a great idea at the time and then regret it later for a variety of reasons. And not because it was rape with an aggressor or victim, but just a messy situation that is no one’s fault. And if any of those encounters that were regrettable in hindsight also had a “no” in there followed by or preceded by any of the lines above, would that constitute rape?

Here is a quote from Kavita Krishnan, who said on NDTV’s The Buck Stops Here to Vishnu Som, “The law is very clear on this, even this judgment says this and adds a however, that consent isn’t just saying no. Consent means it has to be an affirmative consent you have to communicate yes, either verbally or non-verbally.” I understand the spirit behind this but it does not take many other things into account. So a non-verbal communication would be what? Not pushing away a hand? A moan, a sigh, a giggle? What? I’m not trying to sound ridiculous but it’s a challenge to try and codify conduct in this space. It is not easy so let’s not pretend it is. It is not as simple as one is tempted into making it.

Here is Kavita Krishnan on NDTV – “The understanding of consent for a very long time has been that it is for the man to listen to a no. A no has to mean a no. Once you have listened to a no, there is no ground for continuing with the sexual act.” Again I see where this is coming from but it is too black and white. Often a no is let’s-not-go-further-but-happy-to-stay-in-this-zone. I don’t want to get too explicit but it is not always so simple and we can confront that once we state that fact. To pretend there is no grey area is a disservice to this issue.

I am hoping this is a phase, a reaction of women reclaiming a space and choice they have been denied for long and an overdue backlash against centuries of misogyny and patriarchy. But its articulation very often in the past week does not seem constructive. And maybe that’s fine. Maybe our society is screwed up so bad with so many years of damage that there is no other way than reducing and demystifying this often playful, sometimes deceitful and often exhilarating experience to how it is worded in law or in judgments. It is a loss because put in the most primitive terms, the coupling ritual can lead to some wonderful human experiences and inspirations.

There are so many reasons why women do not protest in the instant of physical closeness which could be assault. For economically or socially disempowered women, marginalized women, even women in urban offices – fear of losing a badly needed job, log-kya-kahenge, family pressure etc. But in equal or balanced relationships there could be many other less clear cases too with the factors listed above coming in. Right now the framing of the debate is black and white. What I am humbly suggesting, as a male, is that the grey area that moves the interaction between two people could be as powerful as the black and white.

Also if I have got this completely wrong and sound like an uninformed and primitive Neanderthal, I am happy to be corrected.

The author can be contacted on Twitter @AbhinandanSekhr

Read the rebuttal to this piece by Sanjay Rajoura here.

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