Nizam Pasha

| @MNizamPasha | January 7,2019

Any system that works on generalisations is bound to suffer from severe limitations in doing justice in individual cases. The #MeToo movement is no different. I have written earlier about how the #MeToo movement by operating entirely outside the legal justice system is failing to cause any evolution of the mechanisms of justice delivery. Now that the dust has begun to settle, it is time to take stock and see where we have beached after the storm.

For this, we must first begin by acknowledging the good the #MeToo movement has done in bringing to light the rampant instances of sexual harassment and the culture of impunity that prevails in our workplaces. Albeit limited by its very nature and by the social media tools it uses to a demographic comprising mostly urban, educated, working women, the #MeToo movement has shown that even the most empowered of women (relative to women as a class) are disempowered and isolated relative to men in the same spaces. While very effective in copybook instances of sexual harassment, it is in dealing with hard cases that the #MeToo movement proves to be inadequate.

Human interactions are complex and multilayered and to place all interactions between persons of the opposite gender in a binary, and that too in hindsight at the instance of one of the interacting parties, is bound to be problematic. There has been, in its later phases, a cooption of the language and tools of the movement by some individuals to deal with instances that do not qualify as sexual harassment, whatever else they may be. Of all the myriad cases that fall in this category, this article deals with cases where consent to the overture or action indicted was, at the relevant time, given or expressed in some form and is now claimed as not having been freely given. Even within this sub-category, there are darker and lighter shades of grey. But acknowledging this penumbra is itself an important first step.

Intertwined with the idea of consent is the idea of agency. In law, only a person who can be considered a free agent is said to be capable of giving consent. While the criminal law of rape should not be invoked in such cases as it is completely inadequate to deal with instances of harassment, the understanding of factors that vitiate consent can be borrowed from that law. Section 376 of the Indian Penal Code enumerates circumstances in which consent, even if given, would not be considered to be freely given. These include intoxication, unsoundness of mind, minority, coercion etc.

Unsoundness of mind is an exception that in the context of workplace harassment generally cannot, and thankfully, is not being invoked, so it is best left out of this discussion. Intoxication is not a subject for a teetotaller to pontificate about, so I must excuse myself from discussing that. This article therefore attempts to examine the exceptions to consent on account of age and/or coercion in greater detail.

There is a higher onus on the person in a position of power, such as an employer vis-à-vis an employee, a lawyer vis-à-vis a client, an older/more successful person vis-à-vis someone younger and more fresh-faced, to ensure that consent is unequivocally expressed and the woman does not feel compelled in any way accede to a request to take the relationship elsewhere. The power imbalance in these cases cannot of itself vitiate consent

 

Coercion is broadly understood in criminal law as well as the law of contract as putting or threatening to put a person or someone close to them in fear of hurt or doing any other unlawful act with the intention of forcing that person to give their consent. Coercion thus, by definition, has to be tested in real time; that is, the person under coercion must be forced to act contrary to their will and must be aware at that time that they are being so forced. There are certain relationships such as teacher-student and counsellor-patient where any kind of overture should be strongly discouraged.

Besides those, there is just a higher onus on the person in a position of power, such as an employer vis-à-vis an employee, a lawyer vis-à-vis a client, an older/more successful person vis-à-vis someone younger and more fresh-faced, to ensure that consent is unequivocally expressed and the woman does not feel compelled in any way accede to a request to take the relationship elsewhere. The power imbalance in these cases cannot of itself vitiate consent.

Harvey Weinstein is considered a creep because he forced women to accede to his requests brushing aside their refusal or their discomfort, not simply because he expressed interest in women in less powerful positions. If age and power imbalance automatically vitiate consent, Michael Douglas is guilty of a lifetime of coercing Catherine Zeta Jones and Dilip Kumar has spent his life taking advantage of Saira Bano.

Minority, the other ground for vitiating consent that is under examination here, is a legal concept that has evolved over time. Child marriages came to be prohibited, and the age of consent to participate in an act of sexual intercourse was increased, both through legislative intervention. Here, the law has been the harbinger of social change. While most of our grandparents were married in their early teens, we, as a society, decided to extend the social contract to outlaw it, and it is now generally accepted that this was a change for the better.

There now exists a growing body of literature that criticises the fact that the socio-economic classes that have access to higher education have extended the idea of childhood well beyond the limit set by the law resulting in a generation that is still being “brought up” by their parents well into their twenties and does not take responsibility of their actions. While that is perhaps a discussion for another day, the point here is that once that age-limit is fixed by the law, it is a line drawn in stone. Of course, this has its own set of problems.

For instance, a girl who is seventeen years and a few months old who has sexual intercourse with her classmate on his eighteenth birthday is a victim of rape in the eyes of the law since she is not capable of giving consent while her partner is a full-grown sex offender. However, this is the flip side of any statutory limit set by the legislature, that people with very little difference between them in absolute terms will find themselves on opposite sides of it. The upside of such a rule is that it lends clarity and predictability to the law. What is important here is that once a person has passed the age of majority, lack of years or experience cannot be used to vitiate consent.

 

 

There have been several examples in the last few months since the #MeToo movement began where educated women have recalled instances from their younger years where someone older or higher in the social or organisational hierarchy made an overture which they could not spurn on account of the power imbalance. These public disclosures are then taken up by cries for social and professional ostracisation of the man concerned. Some excerpts from just one #MeToo article on the internet have been selectively extracted and reproduced below for purposes of illustration (without any judgement on the truth of these accounts):

The relationship between the accused and the victim is described thus: “For [Victim], giving in to Vijay’s advances felt like “the path of least resistance.” She said “it came out of a sense of, I have to work with this guy, I don’t want to fuck this up.” [Victim] began working [Accused] in 2007 when [Accused’s company] helped the company she was employed with arrange the Mumbai leg of a tour for an international band.” Thereafter, an incident is described where the accused allegedly masturbated in front of the victim over a Skype call. The piece then reports the following:

“[Accused] asked her to participate as well. [Victim] was taken aback. She reacted by making moaning sounds. “I didn’t know what else to do,” she said. “I remember telling my flatmates shortly after and us making fun of it, because it was extremely absurd.” “[Victim] said she didn’t feel like she could walk away. “I was very aware of how much he was helping our company,” she said. At the time, [Accused] was already a major name in the […] industry. “I was very aware of the kind of cultural influence he held in the country … He was always in a position of helping us, and we were always in a position of needing help.” (Emphasis added)

 

The language of power is not different. Till yesterday, a woman who slept with a superior at work or an influential person in her industry was shamed for being a slut. While that was outrageously unfair, we seemed to have come a hundred and eighty degrees to a place where the work superior/influential person is being shamed for being a sex offender for hitting on women less powerful than him

 

A description then follows of the colourful reputation of the accused, which does not even bother to suggest lack of consent. If this is not slut shaming, I don’t know what is:

“If a new girl joined and she was slightly cute, [Accused] would hit on her.” The former employee who worked at [the Accused’s company] for over two years, said, “Even the guys who did hotel bookings for him, and booked transport for him, would gossip about him all the time.” “Sometimes they would have to field calls from girls for [Accused]. At parties, a lot of these guys would get drunk and talk about it in hushed tones like ‘Oh, that crazy one.’ It was very much like they were managing [Accused’s] girls.”

This is what is most striking about the discourse today. That the language of power is not different, no matter who wields it at any given moment. Till yesterday, a woman who slept with a superior at work or with a film producer or music director or an influential person in her industry was shamed for being a slut. While that was outrageously unfair, we seemed to have come a hundred and eighty degrees to a place where the work superior/film producer/music director/influential person is being shamed for being a sex offender for hitting on women less powerful than him. Mulayam Singh Yadav ignited a furore four years ago when he dismissed the rapes committed by two upper caste boys in Uttar Pradesh saying something along the lines of ‘ladke hein, naadaan hein, galati ho jati hai. Ab phaansi pe lakta doge kya?’

From this low point of our societal discourse, the only way was up. And up we seemed to be going briefly with the #MeToo movement, till it now seems we have simply flipped the crest of the curse we were riding upside down and are spiralling downwards all over again. We now have women looking back at their twenties and washing their hands off their own actions with a narrative suggesting ‘I was so young and vulnerable, he was so successful, how could I say no, he shouldn’t have even asked.’ Women must be very wary of adopting the same misogynistic narrative and simply flip who is naadaan and cannot be faulted for their overt acts and who is the seducer.

We now have women looking back at their twenties and washing their hands off their own actions with a narrative suggesting ‘I was so young and vulnerable, he was so successful, how could I say no, he shouldn’t have even asked.’ Women must be very wary of adopting the same misogynistic narrative and simply flip who is naadaan and cannot be faulted for their overt acts and who is the seducer

So far, the rule of thumb that prudent men followed was that if you are harassing someone, you will know that you are; it isn’t something you do unknowingly. But cooption of the tools of the #MeToo movement i.e. public shaming with a call to ostracise, by some women to deal with incidents that were basically bad judgment calls by them in their younger days is leading to two very serious problems. One, it is giving plausible deniability to men who have rightfully been accused of harassment. And more disturbingly, it is reducing career opportunities for women in industries that are controlled by men.

There are increasing reports that more and more male team leaders are choosing to phase out women from their teams, recruiting men every time there is a vacancy, to avoid potential conflict in the workplace. They are also becoming wary of mentoring younger women colleagues out of the same paranoia. As a country that does not even have an equal opportunities law for the private sector, women in India stand to lose a lot more in terms of opportunities than those in the West.

Another reason why the #MeToo movement must be careful of falling into this trap can be best explained by the Hadiya case, which was the result of just such an understanding of the universe unfolding in real time. A 24-four-year-old woman who was in her final year of college married a man ten years older than herself. Because of her conversion to Islam, she was facing hostility from her own family and community and was therefore dependent on her newfound community for social support. Her husband was well entrenched in this community she was dependent on. The age difference, her vulnerability, his relative position of power on account of being her conduit to social support were all used by the High Court to annul the marriage and hold that Akila Asokan alias Hadiya was incapable of giving consent. Repeatedly referring to her as a “child”, the High Court directed that she should be returned to the custody of her father.

 

Generations of women have fought long and hard for the right to choose their own partners instead of being “given away” in arranged marriages by their fathers, brothers and sundry patriarchs. The majority of women in India are still to see an inch of this ground that has been seized from patriarchy

 

The matter came in appeal to Supreme Court and she remained under house arrest in the “custody” of her father for eight months while the matter was heard. The Supreme Court finally, after much opposition from both her father and the law officers of the BJP government, directed that she be brought before them so the judges could interact with her. On the next date, in her presence, the Court once again heard arguments on whether she should even be allowed to speak for herself. For two hours, she stood and listened to her father’s lawyer argue that she should not be allowed to speak because she had been brainwashed and was not a free agent.

At long last, she was allowed to address the Court and stated unequivocally that she had married of her own free will. When the Court suggested that they would send her back to her college to complete her course in homeopathy and place her under the guardianship of the Dean, she interjected and said she did not need a guardian as she was a major. Thankfully, the Supreme Court eventually passed a judgment overturning the order of the High Court, restoring her marriage and declaring that she was free to do as she pleased.

Arguments suggesting that consent given at an earlier time was, in hindsight, not freely given on account of a difference in age or position mark a move towards surrendering of agency by women on behalf on their younger, less influential sisters. Generations of women have fought long and hard for the right to choose their own partners instead of being “given away” in arranged marriages by their fathers, brothers and sundry patriarchs. The majority of women in India are still to see an inch of this ground that has been seized from patriarchy. Patriarchy is only too happy to regain this ground, lap up this agency and become the guardian angel and arbiter of women’s lives once again. The question we must ask ourselves is, is this what we want?

 

 

Nizam Pasha is a lawyer practicing in the Supreme Court. Although being a teetotaler disqualifies him from speaking about intoxication, he likes to believe that not knowing what it’s like to be a woman does not disqualify him from speaking about the #MeToo movement because he is an equal participant in interactions across gender divides. However, as a single and rapidly greying man, he has a vested interest in younger women taking responsibility for their actions and decisions. The article may be filtered for bias accordingly. He can be reached on Twitter @MNizamPasha.

 

[Editor’s note: The Leaflet does not endorse the views expressed by the author of this article. However, in the interest of wider debate, we have published this piece, hoping that it will lead to addressing of some of the issues raised by the author. We welcome any rejoinder, especially from the women leading the #MeToo movement, in response to this piece.]

[Update: This article was updated on January 8, 2018, 8:06 pm to remove from the headline the single quotes before and after MISUSE and AGENCY OF WOMEN, as desired by the author.]

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Supreme Court Writ Petition Civil 1027/ 2018 on sexual harassment complaints against Soli Sorabjee and Raian Karanjawala by General Electric Company whistle-blower Seema Sapra #MeToo #MeTooIndia https://seemasapra.blogspot.com/2018/01/fwd-new-writ-petition-on-sexual.html

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