Is a ‘yes' or 'no' from a woman to a sexual act really a 'yes' or 'no', the Delhi High Court has asked.
The debate is a part of an 82-page judgment which acquits filmmaker Mahmood Farooqui in a rape case on the benefit of doubt that he might have misread the 'no' of the woman as a 'yes'.
In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats, Justice Ashutosh Kumar, who authored the verdict, observed.
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‘Consent key factor’
The consent can be revoked at any moment. “Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape,” the judgment explained on Monday.
On the “various models of sexual consent”, the judge started with the “traditional and the most accepted” one, which is the “affirmative model” where a “yes is yes and no is no”.
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But the judgment went on to tackle a situation where a woman's affirmative consent or positive denial is not asserted, but conveyed in an “underlying/dormant” fashion, leading to a “confusion in the mind of the other”.
Gender influence
The court then noted that there are “differences between how men and women initiate and reciprocate sexual consent”.
“The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus, gender relations influence sexual consent,” Justice Kumar noted.
Act of passion
But this may not be true in the case of modern society where gender equality is the “buzzword”, Justice Kumar added.
The court took into account how individuals react differently “in an act of passion, actuated by libido”. It observed that “myriad circumstances” influence consent, and a 'yes' or a 'no' may actually mean the opposite.