It is important to use this moment to craft a new, more effective framework for due process
Sometimes to upend entrenched power structures, a revolution is required. Naming and shaming powerful men in the #MeToo campaign is in many ways a revolutionary act. The truth about most was known, spoken in whispers, but not to their face. But now that omerta has been broken by some intrepid women, there’s a palpable sense of power and possibility.
Moment of change
Revolutions are by definition anarchic, as they are aimed against those who make and enforce the rules. So it has been with #MeToo. Men are named, sometimes anonymously, and the naming itself requires punitive action to be taken against them. There isn’t really any room for discussion on context or degree of culpability. Some have raised questions about due process, and the response has been, somewhat reasonably, that due process has failed. And it is true, arguing for due process when due process has failed feels a bit like batting for status quo. So let it be said, #MeToo despite its limitations is unreservedly a good development.
However, the question is, what next? The #MeToo movement is more than just outing powerful men, it is about shifting the balance of power between men and women, transferring the punitive aspects — shame, denial of work opportunities — from the victim to the perpetrator. It is about ending impunity embedded in our social construct by shaping new social mores. This is and has to be a collective effort, and it is important for the #MeToo movement to have these discussions. There are two broad questions which require discussion. First, what should constitute sexual harassment? Second, when and how should the state and other institutional mechanisms come into play?
As personal accounts have tumbled out on social media, it has become obvious that the definition of “sexual harassment” is very fluid. In support, many have taken the line that sexual harassment is whatever makes the woman uncomfortable, and it’s for her to decide. This is a completely justifiable response when it comes to personal interactions, and when the response is personal by, say, ticking someone off. However, when we bring collective pressure to bear against anyone for punitive effect, we have a responsibility to collectively define behaviour which will invite punitive action. Moreover, while public opinion has reduced culpability to a binary concept, it is important to define graduated norms of unacceptable behaviour, including associated levels of criminalisation and punitive consequences. Along with the manner of establishing culpability, this is the sum and substance of due process.
There is no ambiguity that any form of coercion is wrong and should engender exemplary punitive consequences. But what about social awkwardness? What about behavioural conflicts arising out of differential expectations in societies in transition? Staring, telling risqué jokes, crude propositioning can be as much about social awkwardness as abuse of power. It’s not that such behaviour is not inappropriate or wrong, but we should pause and think about the consequences of bringing in state or institutional power to penalise transitional behaviours in personal interactions.
India as a society is transitioning rapidly, and people with widely different understandings of acceptable social mores coexist without having had time to acclimatise. In a study on sexual harassment by the National Students’ Union of India (NSUI) in Delhi University, we found that one in four girls reported sexual harassment. In this, by far most instances related to staring, crude comments, etc. One conversation with two very articulate and urbane female students went quickly from young men staring and making women uncomfortable to an anti-reservation tirade for allowing university spaces to be allegedly overtaken by crude lower-caste rural men. As a society we can frame this situation as gender/caste/class antagonism or of managing inevitable conflicts in transitional societies. The institutional response in the former conception will be regulatory and punitive, the latter will be more about defining mores of acceptable behaviour and education.
Concerns about state power
There are legitimate concerns with bringing in state power to penalise transitional behaviours. First, the response is often too heavy-handed, and second, it makes social reform and gender relations too antagonistic. Section 354 of the Indian Penal Code defines sexual harassment as “physical contact, advances of unwelcome and explicit sexual overtures” but also “making sexually coloured remarks”. It is true that conviction rates under legal processes are extremely low but surely even conceptually, we don’t want to send people to jail for telling crude jokes.
Institutionally too, it is important to expand the discourse to talk about the measures required to create more gender-neutral spaces while retaining room for graduated levels of punishment. Censure, delayed or reduced work opportunities, suspension and firing are all forms of regulating inappropriate behaviour and we should be wary of a reductive public discourse where the institutional response is a binary of firing/not firing, with the latter interpreted as sanction and/or encouragement.
Impunity exists in a social construct. Till now, due process did not work because the social context was skewed in favour of marauding men. However, the long battle waged by generations of strong women before and the courage of many women today together is forcing the social context to change. It is important to use this moment to institutionalise and craft a new, more effective due process. That should be #MeToo’s lasting legacy.