~By Sucheta Dasgupta

By focussing on the legal way forward for the women complainants and worrying about the future of the #MeToo movement, are we missing the wood for the trees? Are we, guided by the status-quoist media, engaging in a collective floccinaucinihilipilification of #MeToo?

But first the facts. #MeTooIndia is already successful, and far more than in the West, since even before last weekend. It’s because it has shattered the silence/forced confidentiality taboo. #MeToo is first about identifying oneself as victim, and only next about naming-shaming the perpetrator. It is about taking the risk of job loss, social boycott, family backlash. The resignations last week point to the fact that the tables have actually turned. Now it is the perpetrators who are facing these consequences.

In today’s corporate-ruled existence, a job loss for the family breadwinner is frankly worse than incarceration. It is a heavy punishment to bear. And the hit to his credibility that the perpetrator takes after such a resignation multiplies his punishment. Ironically, these are the very bogeys or sometimes the deeply unjust social realities that have so far been used to silence women. This is where #MeToo has been successful. Also ironically, it is still men who are commonly providers as women’s quest for equality remains incomplete, and that very reality has worked out in their favour.

Courts are important, but only as a last resort, when offices, organisations, institutions fail to act. It is difficult to prove sexual harassment and the MJ Akbar case will go on with no outcome for either party, when it starts being heard on Thursday. Allegations and counter-allegations, too, now will become less frequent now that the first, explosive, week is over. With more and more, frivolous, complainants boarding the #MeToo bandwagon, there is a high chance that the movement will also get diluted. But the catch is that it has already achieved its purpose.

The reason why it is hard to prove sexual harassment is that it is actually a tort, and an offence against the person, rather than a ‘crime against society’. So instead of dealing with it under criminal law (IPC and CrPC in India), it should be defined under tort law for much more successful and efficient disposal, some thinkers, like Germaine Greer, for instance, have expressed.

There is also the question as to why India continues to have a criminal defamation law when many other countries have done away with it.

Also, sexual harassment of an employee in a workplace is often accompanied by professional harassment, unless the harassed person is receiving favours in a quid pro quo arrangement with the perpetrator, in which case it does not amount to harassment as it’s consensual. Now, professional harassment is gender-neutral, and often men, too, are victims. Just like sexual harassment cases, why do so few of these instances make it to court? That is another related question.

Coming back to the backlash against #MeToo, it has taken the form of the following arguments.

• Low chances of successful prosecution
• Metaparanoia about lack of due process, frivolous charges, effect on free mingling and toxification of mixed groups
• Loss of mystery in the man-woman relationship, death of seduction
• The risk taken by the “#MeToo women”
• Whataboutery vis-a-vis rural/poor women

Here is a point-by-point examination, and rebuttal, of all of them.

• It is indeed hard to prove sexual harassment. The fact that #MeToo puts no timeframe on reporting instances, and so many of the cases are being reported after years, itself dilutes the chances of a successful prosecution, which owing to pendency and other problems may take decades to complete. It exacerbates the burden on our prison system which already suffers from overcrowding and financial constraints. Also, the gravity of the offence is different in different cases, so that complicates matters. (As a writer perspicaciously observes, “Charges like the one against actor Alok Nath clearly invite criminal proceedings even in the absence of a victim’s complaint. Another category, in which the accusation against Suhel Seth falls, calls for an institutional response because a legal process could be inconclusive. A third category consists of women who felt imposed upon, but a bystander could dismiss it as subjective (depends on the bystander selected, of course). The appropriate response here is a done deed — shaming.” He goes on to add that legal recourse remains important as the “last resort”.) But as observed earlier in this piece, in today’s corporate-governed existence, a job loss is comparable to incarceration. And the fear of that eventuality is a strong enough deterrent. The fact that so many highly-placed executives and celebrities have resigned, lost projects or apologised proves that there has been a shift in the collective consciousness vis-à-vis these offences. Organisations no longer want to associate with these individuals. And that was brought about by #MeToo.
• “Amazing how people are angrier at imperfect feminism than systemic misogyny.” This is tweet by a graphic artist made during the first week of #MeTooIndia. But like the courts, the general public, too, can sift the grain from the chaff both in terms of degree of offence as well as the quality and veracity of complaint when the power biases are gone, unusual as it may seem to our embattled selves. So the worry about due process has no real basis. And as a lawyer tells India Legal, “It’s only fair that men will now have to learn to figure out the limits of civil behaviour and abide by these boundaries when earlier it was we women who had to walk on eggshells, be put through worry or self-doubt or worse, sledging and character assassination, for politely smiling at someone. Now they will get a taste of their own medicine, or rather the medicine that women have been served up until now by society and in the serving of which men have had a hand.” It is a reference to a meta-paranoia, paranoia about paranoia, which some men have been complaining of, saying how #MeToo would make them afraid to interact with colleagues. Men and women are thrown together in the workplace, and in this world, for good, and if there are any such complexes forming in men’s minds, they are there for a good reason, and ones that men and women shall together overcome.
• Predation is in the nature of man. By today’s standards, there would be no Don Juan. He would be termed a predator. This is one of the concerns expressed by detractors of #MeToo. Well, #MeToo may result in the disappearance of the vulnerable woman, and some change in the language of seduction among players, male and female, none of whom are at real risk here. For maybe, we are not looking at predation per se vis-à-vis #MeToo, but at how to empower women to be not vulnerable to it, to handle themselves when under threat and be able to strike back. The other way to put some minds at rest is to look at legal reform wherein sexual offences are examined on a case-by-case basis, and, depending on gravity of offence and actual, proven, harm caused to victim, deemed civil wrongs and not crimes, with appropriately lighter punishments. But, of course, dismissal of service will be one of the consequences faced as well as loss of reputation. And in case of injury done to the person of the complainant, the offence will fall in the category of a crime, and will entail compensation or incarceration. Most notably, in a maximum of the cases that entered the public domain last week, all that the complainant had been asking for was a public apology and a stoppage of the misbehaviour by the accused. But in all of those cases (there are success stories as well, but these are few and outside the scope of this piece; also these are never discussed so the conspiracy of silence is perpetuated), the response of the management further emboldened the culprit, precipitating #MeToo.
• That is the basic requirement of #MeToo. But the last week has shown that mindsets have changed, and the heat is on the perpetrator. And the very fact that court cases of sexual harassment are long and inconclusive works for the victim as well and now better than the perpetrator. Is it the reason why no one has come forward with a complaint to the National Commission for Women as chief Rekha Sharma has complained, one wonders.
• It is true that social media access and western precedence as well as blessings from the almightiest Establishment, the office of the women and child development ministry of the Indian central government, spelled #TimesUp and ushered in India’s #MeToo. But to say that it is a movement of urban women only and ignores the cause of the rural women is a fallacy. Also, the people who are peddling this argument and imagining the rural women are uniformly facing oppression have not cared to actually notice that, so many rural and small town women are defying systemic misogyny (joining street orchestras, driving public transport, running households as single women farmers, playing sport) and breaking the mould. These people are under the influence of what is often dubbed as colonial consciousness in academic circles. Instead of giving the subjects of their conversation dignity by giving their accomplishments due recognition, this group would rather blanket rural women as helpless and ‘seductively’ vulnerable creatures, blind as they are to real change sweeping countrysides. But they inspire urban women and they them, and the respect is mutual. As Max Weber said, there is a connection between peace, wealth and prosperity and the values a society holds dear; one is directly proportional to the other, so it is pointless to say that since there is bloodshed in Syria or bad roads in West Bengal, for instance, one should not build a highway in Maharashtra or help sort the situation in Maldives.

Some concluding observations. All women have faced negative discrimination and gender violence, if not sexual harassment, and even if it is not necessarily in the workplace. During the course of the tumultuous first week of #MeToo, it was seen that the fairest of men often lacked access to women’s realities, unaware as they were of the time and efforts a woman must invest so as to become spiritually comfortable under these pernicious circumstances, the often-irrevocable costs she must bear. All women’s characters are shaped either by resistance or capitulation to misogyny. So it is a tad unfair to expect perfection from every complainant, when the law itself has some distance to travel to become perfectly unbiased. But, let us take hope in this fact that women and men are not politically poles asunder as it is made out to be, or East and West as the poet once said of the Orient and the Occident; and that, in the final analysis, this movement is not about men vs women, but about us versus a system in which we are all complicit.

END OF IMPUNITY: (Photos from left) Thanks to Sandhya Menon, Tanushree Dutta, Nasreen Khan, Priya Ramani and a few more good women