Confronting Sexual Violence with Empathy Over Retribution
India is currently witnessing a spate of protests against gender-based violence targeted towards women. The rape and murder of a trainee doctor in Kolkata, allegations against influential figures of the Malayalam film industry in the Hema Committee Report on women in cinema, and wrestler Vinesh Phogat’s accusations of sexual harassment against BJP leader Brij Bhushan Sharan Singh have all led to fierce demands for more effective and stricter legal consequences in instances of sexual violence. However, in this essay, I urge feminists to eschew reliance on the punitive state and instead direct their attention to models that provide an alternative to the retributive theory of justice. The essence of my perspective is that it is paramount that feminists “break the wheel” and not adopt the tools of the oppressor by advocating for punishment, shame, and stigma.
Stricter punishment and the death penalty for sexual assault have been often debated by the two main strands of feminism called governance feminism and anti-carceral feminism. However, comparatively little attention has been paid to theorising whether sexual harassment laws, and the discourse around them, in India can be understood as truly feminist, given the paternalistic approach towards the complainant and the construction of the perpetrator as a predator. The emphasis on punishment and retribution is symptomatic of a sex panic.
This begets the question – what is the most empathetic way of dealing with instances of sexual harassment? I try to answer this question in the essay by looking at restorative justice. I have written this piece as a “survivor scholar”, a term coined by Alexa Sardina and Alissa R Ackerman for those who have both experienced gender-based harm and research patriarchal violence; it is a manifestation of situated critique.
Legal history of sexual harassment activism
Before explaining why the current legal framework on sexual harassment is antithetical to feminist principles, I will briefly recap the journey towards the proclamation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH).
In 1992, a social worker named Bhanwari Devi, belonging to a socially and educationally backward caste in her state, was gangraped because she attempted to stop the marriage of a one-year-old girl child. Her actions were within the ambit of her job in the Women’s Development Project of the Rajasthan government, where she was campaigning against child marriage. Several social activists and NGOs filed a Public Interest Litigation (PIL) in the Supreme Court, in the hope that the judiciary would plug the legislative vacuum towards creating gender equality at the workplace by creating safe working conditions for women. Keeping in mind Articles 14, 15, 19(1)(g), and 21 of the Constitution, and underscoring the judges’ commitment to the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by India in 1993, a set of guidelines was prescribed by the Supreme Court in 1997. Two of the guidelines pertain to criminal and/or disciplinary action against the perpetrator.
It took about a decade and a half for the government to introduce a law to provide legislative backing to the 1997 judgement – the PoSH Act. The catalyst for this was the much-publicised gangrape and murder in 2012 of a physiotherapy student in New Delhi, commonly known as the Nirbhaya incident, that led to several reforms in the law relating to violence against women.
PoSH and the paternalism that inheres
As is evident from the statute’s title, the Act applies only to women. After the NALSA judgement of 2014, the restriction of the law to those assigned the gender of women at birth is anachronistic for not taking into account non-normative bodies and gender identities. In November 2023, the Supreme Court refused to issue a writ of mandamus to the Parliament “to enact a law on a particular subject and in a particular manner”. Here, it is important to remember Janet Halley’s reiteration of Kendall Thomas’ powerful declaration that women do not own gender.
The preamble of the Act underscores its avowed aim of “protecting” women. Ratna Kapur has been critical of this protection approach of the state, which is evident in Section 2(n). It provides an inclusive definition of sexual harassment and covers any direct or implied unwelcome act or behaviour that may be physical contact or a demand/request for sexual favours or sexually coloured remarks or showing pornography or any other physical/verbal/non-verbal conduct of a sexual nature. Section 3 adds to this definition by specifying situations that can accompany sexual harassment such as the promise of preferential treatment, the threat of detrimental treatment, threats to employment status, creation of a hostile work environment, or humiliating treatment that can be detrimental to health and safety.
Kapur has argued that this definition of sexual harassment, while correctly focusing on situations of a power imbalance where the superior coerces or intimidates a subordinate into sexual interactions, also captures and penalises sexual speech that may be sexist, offensive, or bigoted but not severe and pervasive, thereby imposing a conservative sexual morality. Because of its overbreadth, explains Kapur, the law traps women in the narrative of helplessness and victimhood. She has taken particular issue with the terms “unwelcome” and “sexually coloured remarks”, both of which are not only subjective but susceptible to being interpreted by conservative standards. A case in point is accusations of sexual harassment against Sameena Dalwai, an academic who was projecting screenshots from dating apps to highlight relationship preferences that are based on identity markers of caste, class, and religion.
Ayesha Kidwai countered Kapur by explaining the need for a more expansive definition of sexual harassment, based on her experience of dealing with sexual harassment cases at different universities where the lack of a physical component and absence of a demand for sexual favours could still lead to women feeling violated on account of repeated sexist remarks and lurid stares from male classmates.
To redress complaints of sexual harassment, Section 4 imposes an obligation on employers to constitute an Internal Complaints Committee (ICC), with a woman as its Presiding Officer. The JS Verma Committee, constituted in the aftermath of the Nirbhaya case, consulted several feminist academics/activists/organisations and argued against ICCs. Instead, it recommended the creation of a separate employment tribunal to prevent complainants feeling pressured by in-house proceedings. But Kidwai disagreed with this recommendation, arguing that an external body will be less accessible to complainants. Maya John has also criticised this section for converting what is essentially a gender-cum-labour rights issue into a private affair, which she argues is symptomatic of the state’s withdrawal from regulating employer-employee relations to the detriment of labour rights. She has also arraigned the preference for ICCs over criminal proceedings. However, it is also important to note the queer theory perspective on this point; demanding accountability from the perpetrator should not come at the cost of women’s pleasure and desire. Involving administrative institutions of the state or creating bodies in non-governmental institutions that implement governmental norms on sexual violence and sex discrimination would lead to the creation of what Jacob Gersen and Jeannie Suk have termed “sex bureaucracies” or “mini-bureaucracies” that end up excessively regulating the sexual climate in workspaces, as evidenced by Dalwai’s case and a now withdrawn advisory issued by a medical college in Assam that sought to police the conduct of female students.
There are three other provisions in the Act that have generated feminist ire – Sections 9, 10, and 14. Section 9 introduces a limitation period of three months from the date of the last incident of the alleged harassment, within which the aggrieved woman has to make a complaint to the ICC in writing. Even though there is an accompanying proviso that permits the extension of this limitation period by another three months if the ICC is convinced that the complaint was constrained from coming forward by circumstances. This arbitrary limitation period of three (or six months) is counterintuitive; there is enough ethnographic research to illustrate how the process is akin to punishment for those women who come forward with their grievances. The Economic and Political Weekly has published a series of studies that narrate the stories of several women who felt as if the ICCs had put them on trial instead of the perpetrator. Given this state of affairs, it is impractical and unreasonable to expect complainants to come forward without spending a considerable amount of time doing a cost-benefit analysis.
Section 10 has received a mixed response from feminists. It provides ICCs the discretion to initiate a conciliatory process between the complainant and the alleged perpetrator, if the former so requests. Ayesha Kidwai has been critical of this clause because she believes that it turns conciliation into “a normative and foremost expectation of the law”. The Justice Verma Committee report had also expressed reservations about conciliation, stating, “we think that the attempts to get justice cannot be muscled by attempts at conciliation”. Even though governance feminists are reluctant to adopt restorative justice principles in cases of gender-based harms, some feminists (called standpoint feminists) have advocated for alternatives to retribution where women have the option of initiating and leading restorative processes such as conciliation, provided there is specialist training for conciliators.
Section 14 has been especially alarming to the feminist cause. It appallingly provides for punitive action against false or malicious complaints. There is enough theorisation on the myth of false complaints; such myths ignore the patriarchal impediments that work to discourage women from coming forward like the fear of being discredited and dismissed. Unfortunately, even the Supreme Court has bought into the fallacy, stating in a judgement from November 2023, “…it should be kept in mind that the charge of this nature is very easy to make and is very difficult to rebut.”
Stigmatisation of the accused and its anti-feminist implications
What is not often discussed in the feminist discourse around sexual harassment is the stigmatisation and ostracisation, as well as the labelling as “predators”, of some men accused of sexual harassment. This phenomenon, just like the discourse on relying on the law, is essentially anti-feminist. Because the reliance of governance and dominance feminists on the law is misplaced on account of the structural and institutional barriers complainants have to face while taking recourse to legal procedures, some feminists have advocated for “naming and shaming” as an alternative to formal processes as pathways for collective action.
In 2017, an Indian law student based in the US named Raya Sarkar published a crowdsourced list of 70 Indian male academics on Facebook who had allegedly harassed women (the List of Shame or LoSha). The list divided the Indian feminist movement with prominent scholars and activists like Nivedita Menon, Pratiksha Baxi, and Kidwai, among others, putting out a statement on a blogsite named Kafila, urging that Sarkar withdraw the list and the women who submitted the names pursue a “due process” route in the interest of principles of natural justice. Their main (and nuanced) contention was that because the LoSha did not provide contexts and explanations to substantiate these accusations, and would possibly confirm fears that sexual harassment is a feminist hoax or be used by conservative Hindutva groups against men from marginalised communities.
Both the proponents and opponents of the LoSha fail to engage with the use of the tools of shame and stigma. According to Cathy O’Neil, shame and stigma are policing tools, the aim of which is not to protect the individual but to preserve society; they are two sides of the same coin that enforce conformity to group norms. While shame is internal, stigma is external. One of the ways in which shame and stigma manifest against a person accused of sexual harassment is the label of “predator”. The #MeToo movement and other phases of feminist protests against sexual harassment have redirected shame and stigma from the survivors to the perpetrators, alleged or proven. But even this redirected shame focuses more on the perpetrator and less on the survivor.
While the use of the word “predator” is a tool for naming and shaming harassers, it fits men and women firmly within the heterosexual script of aggressive men and passive women; women are described as “prey” and essentialised into a supine definition of femininity, a stereotype that generations of feminists have worked ceaselessly to counter. The discourse of “predator” and “monster” also pathologises misogyny as an individual deviance and glosses over the everyday patriarchal violence that social and political structures unleash against women.
Conclusion
In the preceding paragraphs, I have explained how neither the law nor some of the discourse on sexual harassment is feminist. But is there a way forward that is more congruent with a feminist ethos of “countering cruelty with empathy”? What we, as feminists, should not lose sight of is that instances of sexual violence make individuals feel isolated because of the fear of “victim blaming”. Tarana Burke, the American activist who started the #MeToo movement, has not pushed for stricter laws but for the opportunity for survivors to disclose instances of violence; she has advocated for collective healing through interactions with and amongst survivors. She reminds us that the whole purpose of the movement was to make women feel like they were not alone and halt their “othering”.
While Burke centres survivors in her advocacy, she also wants to make space for perpetrators. She says, “…if we’re ever going to heal in our community, we have to heal the perpetrators and heal the survivors, or else it’s just a continuous cycle”. The stigmatisation of perpetrators also disincentivises men from talking about, reflecting upon, and learning from their problematic sexual encounters. We must not stop being killjoys, as Sarah Ahmed reminds us, but remember that in unveiling structures of power and privilege, we must resist the repetition of repressive practices of injustice.
Acknowledgement: I would like to thank Dr Sameena Dalwai for the title of this essay and Dr Arun Sagar for his contribution to my conceptual understanding of the issues discussed herein.
