Before anyone reads the rest of this, let me clarify that that this blogpost is more about the definition of consent used in the judgment and NOT about the age of the woman or the stage of her menstrual cycle, because most of the social media outrage has been on the court commenting that the deceased rape victim was menopausal.
http://www.firstpost.com/living/delhi-hc-didnt-say-menopausal-women-cant-be-raped-heres-what-it-really-said-1786761.html
http://daily.bhaskar.com/news/NAT-TOP-forceful-sex-with-woman-above-60-years-age-not-crime-says-delhi-hc-4795538-NOR.html
http://www.dnaindia.com/india/report-forceful-sex-on-menopausal-woman-not-rape-says-delhi-high-court-2031918
http://indianexpress.com/article/cities/delhi/man-acquitted-of-rape-as-delhi-hc-finds-woman-died-of-intoxication-not-forceful-sex/
so there is currently a heated debate going on among court
reporters covering Delhi High court about this judgment and the way all of us
have covered this story. because even though this judgment was reported last
week in every newspaper, including mine, DNA’s story today is the only one
which has raised the issue of the language used by the judge in his judgment as
opposed to the legal reasoning we all chose to report, because frankly NO one
wanted to take on the judiciary and face a potential contempt charge for
pointing out flawed reasoning or injudicious use of certain words in a judgment
given out by a very senior and very respected judge of the High court.
at the outset, I would like to apologise to this deceased
woman. I as a reporter am also guilty of failing to play up this story as much
as it deserved to be. I failed to highlight the story and raise the questions the
DNA story and the later Legally India story has..
the debate among the reporters weirdly enough, is more about
how much trouble the DNA guys are likely to be in as opposed to what the
judgment is all about.
lets examine the facts- woman, age 60, died due to asphyxia
caused by the food in her stomach going back up… in layman’s terms she choked
on her own vomit and died.
fact 2- the death occurred during or very near the act of
sexual intercourse
fact 3- there are injuries on her vagina, indicating forceful
sex, something that the court itself has recognized and taken note of in the judgment.
fact4- there are no other injuries anywhere on her body,
which the court has taken as evidence that she did not resist the sexual
intercourse, no matter how forceful it may have been
the problem with the Indian legal system is that we tend to
give benefit of the doubt to rapists and murderers because somehow, somewhere we
cannot accept the idea that RAPE can happen without the victim fighting tooth
and nail to throw off her rapist.. she doesn’t need to be battered half to
death to protect her virtue.. and in this case, since she was supposedly drunk,
the court has simply said that there is nothing to prove lack of consent.
one particular bright spark among our group of reporters,
and may god give him SOME sense at some point in life, started arguing that
ofcourse people have sex when they are drunk. “daaru pi ke sex nahi hota kya?”
was his argument.
now while his argument as an abstract comment on the stupid
decisions people sometimes make while drunk is one thing, in this situation, in
this debate, it was probably THE stupidest argument made…. the woman is drunk
out of her mind. the guy is also drunk, the woman’s husband goes out of the
house coz he wants to go drink with a buddy instead of his wife and their
neighbor. and just a few minutes later, she’s found dead with her clothes array
and injuries on her vagina..
WHY on earth is this not rape?? how is a drunk, passed out
woman presumed to have given consent???
the court has gone by the legal principles of proof beyond
reasonable doubt and acquitted the 46 year old man of both rape and murder.
that part no one can argue with because benefit of the doubt and presumption of
innocence is so inherent a part of our legal reasoning that the judge HAD to
have given that decision as far as the murder is concerned.
but RAPE? didn’t we recently amend the entire law on sexual
offences to say that if she is incapable of giving consent for whatever reason
it will count as a rape? severe intoxication IS under Indian law a legal
excuse. if someone is drunk, they could NOT have given consent.
and what about the injuries on the woman?? the court in its
judgment has said categorically that there are injuries on her vaginal area
indicating forceful penetration. does that not count?? how did the court come
out with the reasoning that “forceful” is not the same as “forced” in this
particular case??
the woman is NOT capable of giving consent. There are
injuries on her genitals. she is SO drunk that the sex forces her to vomit and
she chokes to death..
HOW IS THIS NOT RAPE?? sure this is not murder, but this is
culpable homicide. unintentionally or not, the act of forced sex killed her.
how are we letting the “oh she was drunk” argument cloud the debate so much that
the rapist goes free.
what would your reaction be if the woman in question was not
a drunk old housemaid from the slums but the 22 year old daughter of a
businessman who had tequila shots and was then given rohypnol at an upscale bar?
would you still say she may have given consent so the act
was not rape because there is no injury? would you still say that forceful sex
is not the same as forced sex??
