As #MeToo India Rages On, Here are the Legal Options Available to Survivors
You have outed your harasser's name on social media. Now what?
(News18 Creative by Mir Suhail)
With a slew of women in the entertainment, media and academic sector outing men who have sexually harassed them in the past, India has finally reached its #MeToo moment. Just like Rome, India's #MeToo movement was not built in a day. It took years and several women to come out about their individual traumas that finally led to the watershed. In the course of the past week, several men in powerful positions have been named by women (and men) across the spectrum of committing acts of sexual harassment and general abuses of power in that were rooted in sexism in misogyny.
While the accusations have largely been on social media, the real battle will be fought in courtrooms. After the initial phase of naming and shaming, a movement with the magnitude of #MeToo has to reach certain conclusions, in this case, holding the accused accountable for their acts. And here in lies the tricky part. And what constitutes harassment? If a victim has accused someone holding a position of power- past or present- of abuse, what are the legal recourse available?
Some lawyers have now decided to offer pro bono services and consultations to all those who are claiming to be victims under the #MeToo movement.
"It is important to define the legal route available to women and men who are coming out with their accusations right now. These are women who have named some powerful people and they, in turn, need to be armed with legal firepower to make sure they get the right remedy," lawyer Karuna Nundy told News18.
She stressed that in such cases, the biggest threat was the threat of defamation. What can a woman who has recently outed her harasser on social media ensure justice?
Nundy said the victim can exercise three options - they could either seek a criminal remedy, depending on the degree of the transgression, they could seek a civil remedy or compensation and punitive measures against the harasser by his or her current employer.
"If the sexual assault was damaging to the victim, they can file a criminal complaint and they are entitled to getting prosecution," Nundy said. She added in all such cases the onus of prosecution is on the state and not the complainant.
The lawyer who has represented a slew of women in sexual harassment cases, said not all complainants want to pursue criminal remedies. Civil remedies such as employment termination or financial compensation are also options.
However, Nundy also added that in case of a defamation charge, having a good lawyer was very important. In fact, she and a number of other lawyers from across India have started pooling their names and tagging themselves on Twitter as volunteer lawyers who are ready to offer consultations, connect victims to relevant lawyers or bodies and provide general legal counselling and services to help those who are coming out against their harassers.
And she isn't the only one. According to Delhi based lawyer Veera Mahauli, the #MeToo movement grew out of a mistrust for authorities. But now the cat is out of the bag, victims needed to know the options ahead of them.
"I realised that some victims might be grappling with a lot of legal questions. It is not easy for a lay person to understand all the legalities. So, I tried to organise a collective legal effort, where people can reach out to the legal community for any concerns they might have," Mahauli, 25, and a former student of NALSAR Hyderabad, said.
She and some others on social media are trying to connect people to lawyers and legal consultants and several lawyers including Nishant Gambhir have offered up their services. Apart from legal counsel on what actions a victim can take, consultants and lawyers were also important to explain the meaning of sexual harassment and what constitutes as a punishable offence in a court of law. According to Tahini Sharma, a Noida based lawyer said that it was important to create a legal safe-space for survivors of harassment, some of whom may just need a strong support community to reveal suppressed trauma.
"A legal consultant or lawyer could also help victims collect evidence if any, and work toward forming a strong legal case, if they wish to pursue the accused in court," Tahini said. Permissible evidence in such cases usually includes witnesses, images, screenshots of illicit text-messages etc. In some cases, secondary evidence such as messages sent to a friend or associate may be used a corroborating evidence.
However, all lawyers agreed that the nature of sexual harassment was such that one rule cannot fit all cases. As the cases each differ from each other in terms of damage and intensity, the legal remedy for the victims must also be case-specific.
"A victim who gets slapped with a defamation charge may not want to further engage in the battle and may settle for an out of court settlement. But if they do, the best thing to do would be to respond. That's where lawyers come in," Rutuja Shinde said. She stressed that legal remedy was not just necessary to ensure individual justice but also to the wider success of the movement.
"This is just the beginning, the real battle has to be won in courts. The end goal is to take a second look at what constitutes as sexual harassment at the workplace in the year 2018 and amend laws such as POSH and Vishakha guidelines accordingly," said Rutuja.
As Nundy said, in cases of sexual violence and harassment, there is no line like the bottom line. The legal impetus will force organisations to relook at their harassment policies and revamp their dormant or non-existent Internal Complaints Committees. It is only when organisations that have shielded abusers are held accountable along with the abuser can harassment at the workplace truly end.
In the last week, scores of women came out with accusations against men in powerful positions in the country, including senior journalists and editors from across the media spectrum. Following allegations, Prashant Jha stepped down from his post of Bureau Chief in Hindustan Times while others have issued apologies or statements of denial. Actors such as Nana Patekar, Alok Nath and others have been named. Film director Vikas Bahl has been named by several women.
Note: #MeTooSupportGroup is an open document that is being curated in real time on social media. If you or someone you may know is a victim of sexual harassment, feel free to use this resource to find the necessary help required.
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