Woman’s Friendliness Cannot Be Construed as Consent for Sex: Bombay HC


Jun 28, 2022


Image credits: Freepik

In what seems to be common wisdom, the Bombay High Court recently observed that mere friendship with a girl doesn’t imply her consent for a physical relationship. Or, basic civility and decency from a woman’s side don’t give license to a man to force himself upon the woman.

The case in question here looked at the anticipatory bail of the man, who is accused of raping the woman. The man had reportedly asked for a sexual relationship from his “friend” in 2019 and promised to marry her later. Post which, he “forced himself” upon the woman, according to her complaint. The man refused to marry the woman after she tested pregnant or even take responsibility for the pregnancy.

That the woman in question was merely friendly with the man doesn’t imply anything, the court noted. The observation brings out two things: one, our severe inability to understand platonic friendship. “In today’s society when a man and woman are working together, it is quite possible that proximity may develop between them, being either mentally compatible or confiding in each other as friends, ignoring the gender, since friendship is not gender-based,” noted Justice Bharati Dangre of the Bombay High Court. Justice Dangre denied bail to the main on these grounds last week.

And two: while the order refers to women as the “fairer sex” — an antiquated term that places women on a pedestal — it debunks the myth that friendliness doesn’t imply a willingness to be physical. Friendliness doesn’t imply anything at all, really, and should not be used as a basis for assumptions. What should be the fabric of our social order is effectively being rewoven in a court of law.

“Every woman expects ‘respect’ in a relationship, be it in the nature of friendship based on mutual affection,” the court observed. Questions that have routinely perplexed us arise once again: What constitutes friendliness? Why should any physical proximity as friends be interpreted as sexual desire? Why are we so grievously unable to register a woman’s friendship as a self-sustaining ecosystem of care and support, instead of imbuing it with sexual meanings when people of the opposite sex are involved?

Related on The Swaddle:

Being in Love Doesn’t Imply Sexual Consent: Kerala HC

One study surveyed college students and found that 72% of women and 60% of men reported someone of the opposite sex misperceived their “friendliness” as a sexual come-on. “People may be signaling sexual interest when they smile, stand close, give a compliment, or pat someone of the opposite sex on the arm; however, they also may be signaling friendship or attention,” the researchers pointed out, rationalizing the misjudgment. These cues of friendship are understood differently depending on who they come from.

Two, the order speaks to a larger cultural ignorance, or inability, to understand sexual consent and intimacy. Pop culture has held the mantle of reserve in showing how whatever a woman does is capable of being interpreted as a “sexual advance” or “sexual interest.” Clothes, words, and presence in public spaces are an indication of consent, always presumed and never probed.

Movies, Kuch Kuch Hota Hain, Hum Tum, and others, have sufficiently told us “Ladka ladki kabhi dost nahi ho sakte.” Heterosexual men and women can’t be just friends; the opportunity for romance is always lurking in the corner, if popular media is to be believed. The notion not only strips basic dignity and respect between two people, but it also leads to cases such as the one in hand where people feel emboldened to construe consent when there was none. Some research has linked the misperceptions of friendliness to men’s perpetration of sexual assault and sexual harassment.

Even if one dares reiterate the arguments of “people have sex on their minds” or are wired to sexually desire others, the conversation around consent is much more nuanced and complicated than that. Being in love doesn’t imply sexual consent; marriage doesn’t give people the license to force themselves on their partners; staying out late at night is also not an invitation for sex. Friendship, expressed in any shape or form, is built on the premise of respect — any interpretation that is one-sided and based on gender stereotypes has no room within it.


Written By Saumya Kalia

Saumya Kalia is an Associate Editor at The Swaddle. Her journalism and writing explore issues of social justice, digital sub-cultures, media ecosystem, literature, and memory as they cut across socio-cultural periods. You can reach her at @Saumya_Kalia.


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