This is yet another follow on post on the recent Delhi High Court Judgment which was earlier misrepresented by news websites claiming that the judgment said “If the victim is menopausal, it is not rape” and later clarified by Firstpost saying that the judgment differentiated between forceful penetration (consensual) and forcible penetration (non-consensual).
Here is an article by Ms. Vrinda Grover, who is a Supreme Court lawyer, which is very relevant and which succinctly refutes the basis on which this judgment was made. The link of the judgment is here. And the link to the article by Vrinda Grover is here (as published by Indian Express).
The arguments that she makes against the said judgment, which appealed best to me are here:
1. The judgment assumes that since there were no other marks of violence on her body, apart from the ones in and around her genitalia, it is not forcible, but forceful penetration. Also being supported by the fact that the victim had traces of alcohol in her body which means that she consented to sex?
2. A passing reference to menopause without linking it either to the act of penetration / to the death seems out of place.
3. The post-mortem mentions that the reason for death may have been forceful penetration that led the food to enter her lungs and cause death by suffocation. In this context, what is consent? Can it be withdrawn, once given? Can consent be taken for granted in such extreme cases of death by suffocation due to forceful penetration?
Can consent be assumed because of presence of alcohol?
Is it practical / feasible or even remotely possible that the woman consented to this uncomfortable sex, where she was being suffocated? This, in fact, was pointed out by Saya of Saya..D..Poet in one of my earlier posts very aptly: If the act was not forced on her, she would not be so stupid to have intercourse just after having food. Also if she faced any problem, she would have stopped having sex altogether, or would have got up and went to basin ….done something rather than just lying down. So it seems either it was forced on her either when she was awake or passed out.
She died! And we call it consensual because there is no violence on other parts of her body?
Please read the article. It is definitely worth a read, to know the legal scenario surrounding consent in rape cases!