The language of law must bring greater awareness of our rights and should enable us to hold the state accountable.
India’s #MeToo movement is just getting started and heads have started rolling. Before the storm passes, #MeToo must demand real and substantial changes in our laws.
Here’s what needs urgent fixing, or naming and shaming will dangerously end up as the only recourse against the rape culture.
Sexual harassment at workplace
First, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act is merely a lip service to ensure women’s safety at workplace and needs a total revamp. Its provisions are woefully inadequate and the process is tedious.
The biggest flaw is that compensation for women comes from the harasser’s pay cheque and not the employer. The establishment needs to be made liable for allowing predatory employees to create a hostile workplace. That is how many M.J. Akbars would get fired at first instance if the onus is on those who own the media houses. Without the fear of having to pay hefty compensations to women, the law will be viewed by employers as just another statutory compliance to run their business.
Right to a safe workplace is a fundamental right, the apex court had said in the Vishaka case in 1997. It is not a privilege bestowed on women by employers.
The Act gives employers great leeway in choosing members of the internal complaints committee. The composition has to include peers of employees and not just HR and top management of the establishment whose primary allegiance is towards the institution and not an employee who complains.
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The limitation period of three months for filing complaints under the Act and three years for a similar offence under the Indian Penal Code that goes beyond workplaces must go. It is time organisations and the legislation understand that women often cannot come forward with complaints immediately.
While the Code of Criminal Procedure does make an exemption to the time bar against filing complaints when public interest is involved, but that too is left to judicial discretion.
Include new scenarios of rape
As recently as 2004, the Supreme Court said that if a man ejaculates before he can forcibly penetrate a woman, he cannot be charged for rape. That would be a mere “attempt to commit rape” because “the sine qua non of the offence of rape is penetration, and not ejaculation,” the court had said.
If left to the courts to tackle new challenges to gender violence, the patriarchal systems will leave no stone unturned to further victimise women.
In the last week, many in India have been introduced to concepts like “stealthing” and “gaslighting”. Stealthing as Alexandra Broadsky describes is “rape-adjacent” – non-consensual removal of a condom by the man during sex.
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There are inherently different risks to sex with a condom and sex without a condom. While stealthing can expose a woman to an unexpected health risk, it is also a violation of her consent, which is based on risks as she evaluated them.
Laws are needed to handle misrepresentation while seeking consent and include liability for transfer of communicable diseases.
Gaslighting is a form of emotional abuse that makes the victim question her own sanity. While it could be covered under the Domestic Violence Act, it will never be possible to punish an abusive man for gaslighting.
Giving definitions to such behaviour and acknowledging the victimhood is the first step to dealing with such offences.
Legislative reform is never enough, but the language of the law must bring greater awareness of our rights and should enable us to hold the state accountable.
Make rape laws gender-neutral
The 2013 Justice Verma Committee report recommended that the perpetrator be male but the victim be gender-neutral in sexual assault laws. The government ignored this suggestion then.
However, this is the need of the hour since the Supreme Court has struck down Section 377. Possibilities of homosexual and transsexual rape are real and the law has to be cognisant of it.
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Even the Sexual Harassment at Workplace Act is only applicable to women, although organisations are free to expand the policy to include men but are not obligated to do so. This too has to change.
Of course, even when laws are gender-neutral on the face of it, there needs to be greater protection for women because of the inherent challenges they face when they engage with the legal system.
Key changes to sexual assault laws were made after the 1979 regressive Supreme Court ruling in the Mathura rape case and later in 2013 after the Delhi gang rape. #MeToo is yet another opportunity to push lawmakers to address deficient processes.