let us pause a moment and think of what consent means

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??