Aziz Ansari, Mohammad Farooqui and the Dangerous Myth of a ‘Right' Way To Resist

Despite new robust legislation in place to protect women's rights, courts of law, in rape trials, still tend to lay emphasis on what the man presumed rather than what the woman communicated, and are over-willing to accept the man’s presumptions, however unreasonable they may be.

In the wake of the "Me Too" movement, sexual harassment issues have gained more visibility, not just in our minds but also in the media. A Pandora’s box was opened, with allegations against the United States film industry mogul Harvey Weinstein. Comedian and actor Aziz Ansari, a vocal supporter of the "Me Too" and “Time’s Up” movement, was also caught in the fray with an incident (Way 2018) that was reported and then widely discussed in the media. Closer home, the Supreme Court dismissed the appeal against the Delhi High Court’s order acquitting film-maker Mahmood Farooqui of all the charges of rape against him (Ms X v Mahmood Farooqui).

These developments in the Farooqui rape case and the Ansari incident have made it imperative that the question of consent is discussed, again: What amounts to consent during sexual activity? While both these cases have taken place in different continents and at different times, it cannot be denied that misunderstood ideas on consent and the continued perpetration of rape culture in a patriarchal society have led us to this place.

For starters, let us make a quick comparison of the similarities between the two incidents. The accused in both cases, that is, Farooqui and Ansari, are prominent persons who are directly associated with the entertainment industry and occupy positions of power in the society. The complainants in both cases are young, well-educated women. Both incidents occurred at the homes of the accused: fairly unfamiliar environments for the complainants. However, the most striking similarity between both the incidents is that the sexual misconduct that took place was of a “vanilla” variety. What I mean by invoking the term, “vanilla,” is that it did not adhere to society’s mainstream stereotype surrounding rape or sexual abuse: that rape or sexual violence is usually inflicted by a stranger, preferably belonging to the uneducated or lower strata of society, in an extremely hostile environment. This stereotype also requires rape to be violent, brutal even, and it most likely involves penetration. The standards that have been set for what is understood as rape are so unreasonable that anything that does not fall within this framework, is dismissed as “not rape,” and is also not taken seriously.

In Farooqui’s case, he is said to have forcibly performed oral sex on the complainant. Ansari, on the other hand has been accused of being too pushy with the complainant (alias “Grace”), by inserting his fingers into her vagina despite her resistance, repeatedly putting her hand on his penis even though she moved it away several times, and even trying to have sexual intercourse with the complainant. The common thread between the actions of both these men is their continuous persistence for sexual activity, despite visible discomfort displayed by the woman, clearly indicating her lack of consent towards the said activity.

No Means No, Even if it’s Not a Vehement and Violent No

The line of defence taken by both Farooqui and Ansari, is that they believed that the woman was consenting and that they were performing the act with her acquiescence. One may wonder as to what gave them the strong conviction to believe that the woman was agreeable to the sexual act—maybe Ansari mistook Grace’s gestures of moving her hand away from his penis, not reciprocating equally to his sexual overtures, or her statement about not wanting to feel forced, as a sign of consent. And perhaps, Farooqui casually mistook the victim’s actions of constantly pulling up her underwear which Mahmood Farooqui kept pulling down, and clearly saying “no,” as a “yes.” It is a little difficult to believe that such obvious verbal and non-verbal indications were misread by both the men to such an extent that they were understood to mean the complete opposite of what was evidently being indicated by the women. Even if we give Farooqui and Ansari the benefit of the doubt for not having been able to read the non-verbal cues, the worrying part is that there was no change in their behaviour even after the respective women spelt out their lack of consent explicitly in words. Farooqui continued to do what would constitute rape under Section 375(d) of the Indian Penal Code[1], by performing oral sex on the victim, without her consent, even after she said “no.” Similarly, Ansari continued to persistently seek sexual gratification and attempted to have sexual intercourse with Grace, despite Grace having communicated to him earlier that she does not want to feel forced into doing something. If Aziz Ansari was to be legally prosecuted under the penal laws of New York (since the incident took place in the state of New York), he would be charged for “forcible touching” under Section 130.52 of the New York Penal Law [2]. Ansari came on to Grace so quickly and so strong that she didn’t even have time to comprehend whether she was okay with what was happening.

For Farooqui and Ansari, seeking the consent of the woman was not an important part of their sexual agenda. In fact, their behaviour reflects the gender dynamics of most heterosexual sexual activities, where men display entitlement over a woman’s sexuality and presume that she is consenting or that she will be okay with their advances and go along. There seems to be an unreasonable expectation by men that a woman has to “strongly resist or deny” sexual overtures in order to communicate her non-consent. Anything less than a vehement and violent rejection is presumed as consent.

Courts and Consent

Courts in India have time and again given legitimacy to the idea of presumed consent in cases of sexual violence. In the Farooqui case, the Delhi High Court, while supposedly understanding the various layers encasing a non-consensual sexual activity, could still not resist reiterating the popular rape myth that “a feeble ‘no’ (by a woman) may mean a ‘yes’” and that it is “difficult to decipher whether little or no resistance and a feeble ‘no’ was actual denial of consent” (Ms X v Mahmood Farooqui 2017: Para 78). Even the Supreme Court, while dismissing the appeal against this order of the Delhi High Court at the admission stage itself, failed to appreciate that the Delhi High Court had not taken into consideration the particular circumstances of the case—how the accused completely caught the complainant off guard and unawares with his sudden, unwelcome sexual overtures—and put the complainant in fear of her safety because of his physical strength. Despite Farooqui’s display of forcefulness and obvious lack of consideration towards the consent of the victim, both the Delhi High Court and the Supreme Court still found it apt to give him the benefit of the doubt as to whether he could “discern/understand the same (that the victim did not consent)” (Ms X v Mahmood Farooqui 2017: para 101).

Unfortunately, the Farooqui case is not a one-off judgment where the courts in India have diluted the idea of consent. In a 2016 gang rape case, the Supreme Court acquitted the accused persons of all charges of rape, because the victim’s conduct during the ordeal was supposedly “unlike a victim of forcible rape and betrayed somewhat submissive and consensual disposition”[3] (Raja v State of Karnataka 2017: para 28). Similarly, in the Jindal Global University (JGU) rape case, where the victim was gang-raped over a prolonged period of time, the High Court of Punjab and Haryana casually wrote off the encounter as a consensual one, thus completely turning a blind eye to the victim’s plight and obvious lack of consent (Ms X v State of Haryana 2017: 10).

Even though the circumstances in Raja v State of Karnataka (2016) and the JGU rape case matched up to the stereotype of rape (it was forcible and violent, and in a hostile environment) the courts did not hesitate to assume the victim’s consent. In fact, in the JGU rape case there was also an added angle of threat and blackmail by the perpetrators about releasing the naked pictures of the victim online. Yet, the High Court of Punjab and Haryana was willing to pass on the benefit of doubt to the perpetrators and presumed consent on behalf of the victim, attributing the act to “voyeuristic and promiscuous behaviour” of the youth, and therefore granted bail to all the three accused (Ms X v State of Haryana: page 9). However, this order of the Punjab and Haryana high court has been stayed by the Supreme Court, bringing in a ray of hope to the victim, in an otherwise abysmal situation. We must not forget that most rape cases do not make it to the Supreme Court or even the high court for an appeal or a review. Therefore, the dismissal order of the Supreme Court in the Farooqui case and the bail order of the high court in the JGU rape case have set problematic precedents for the trial courts to follow in rape trials.

A similarly problematic precedent was also set by the House of Lords (United Kingdom) in 1975, in the case of DDP v Morgan. In this case, the House of Lords ruled that if a man honestly believed that the woman was consenting to the sexual intercourse, regardless of whether the grounds for his belief were reasonable or not, he cannot be said to have the mens rea (intention) to commit rape. This ruling was given despite the fact that the victim had been physically dragged to another room by her husband’s friends, and was screaming and struggling throughout. DDP v Morgan was overruled by the Sexual Offences Act, 2003; however, the damage it may have caused over almost three decades is irreparable.

The Burden of Resisting in the ‘Right’ Way

The high standard of resistance required to be demonstrated by women in non-consensual sexual activities often results in confusing rape and sexual assault with seduction and consensual intercourse (Pineau 1989: 217). The victim is often blamed for having led on the man to believe that she was consenting, because “she did not resist enough” (Herman 1988, p 50).

How much resistance does a victim need to display to meet the seemingly impossible threshold of “resisting enough?” Despite new, more robust laws to protect the rights of women, it seems that the courts of law still insist on laying emphasis on what the man presumed rather than what the woman communicated, and are over-willing to accept the man’s presumptions, however unreasonable they may be.

The 2013 Amendment to the Indian Penal Code (IPC) modified the definition of rape to include oral intercourse under rape, and defined “consent” in absolute and unambiguous terms (IPC: Section 375). Women’s rights activists across India had hailed the 2013 Amendment as the harbinger of progressive change for women. However, with such sinister interpretations made by the courts in understanding consent render the 2013 Amendment almost redundant. The Farooqui case is one such strong indicator as to how, even after four decades since the Morgan case, the perpetrator can still walk away scot-free, no questions asked, if he merely takes the defence that he was not aware of the non-consent of the woman. The idea that “no means no,” is yet to resonate with the Indian judiciary. The judgment in the Farooqui matter is going to have far reaching implications on the idea of consent, and will most likely undo years of struggle by women for fair and unbiased rape trials.

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