This Article is written by Sayani Pal (BBA.LLB.(Hons.), a 5-year integrated program from Law College Dehradun, Faculty of Uttranchal University.)
70% of the sexual harassment cases by the superiors to the women at workplaces are not reported[i]. The much-known #MeToo movement started all from the U.S.A. in 2017 and after a year in 2018, it started in India. #MeToo movement is an initiative to solve the sexual harassment and abuse of women in society. This article is solely focused on the moment and how tough it is to prove the incident where the accused assaulter can easily escape by the defamation legislation.
“When survivors of sexual assault speak out, they help to change the society that allows it to happen.”
– Kristine Ziwica , who is a writer.
Table of Contents
INTRODUCTION
The #MeToo movement has been a success, since many personal tragedies and buried stories have surfaced since it began in 2017. It’s an internet effort that was launched to help sexual abuse survivors[ii]. This initiative started 10 years ago but gone viral in October 2017, as a hashtag on social media platforms. It resulted in confessions of sexual assault and abuse, sparked a much-needed dialogue, and became a worldwide phenomenon. They are getting the courage to name the perpetrators on a public platform .Women, especially some of the famous public figures have been putting accusations against men through social platforms. Because the allegations of incidents were so old, it was difficult to verify the facts, leading to the accused filing defamation lawsuits[iii].
We used to say that social media is bad for us, but there are many things, such as the #MeToo movement, that instil fear in the minds of even the most fearless criminals. However, because it is extremely difficult to enforce this movement among the poor, who are unaware of the law’s provisions and have no idea how to contact the right authorities, the problem remains.[iv]
ORIGIN OF THE MOVEMENT
An activist from Harlem, Tarana Burke,[v] launched this movement to aid underprivileged women of color affected by sexual abuse . On the social networking site Myspace, she began using the slogan “Me Too” in 2006 as part of a campaign to promote “empowerment through empathy”[vi].
These two words resurfaced by the actress Alyssa Milano[vii]took to Twitter to invite those who have experienced sexual harassment to respond to “Me Too”. This movement has started a decade ago but around 2 years ago it went viral on Facebook, Twitter, and Instagram. Now it is being used by women across the globe to share their sexual harassment stories and make people aware of the reality and also nowadays it becomes an International phenomenon as women from different countries using the #metoo movementin their languages. For example, in French, #BalanceTonPore means “rat out your pig,” while in Arabic, “#AnaKaman” means “metoo.”
LEGALITY OF THE MOVEMENT
Rape and sexual harassment are heinous crimes and the doers are nothing but villainous criminals. These offenses are punishable in India under the IPC[viii] . However, there are reports, where the FIRs are not taken by the police or the FIRs never make into investigation so the criminals are walking freely in the society. Whereas this #metoo movement empowers every woman in the society at large to speak up against evil. Another side of sexual harassment is that women are too scared of speaking up openly about their abuses.
OFFENCES
Sexual assault, sexual harassment, and abuse are all defined as crimes under the IPC[ix].
SECTION 354A– It defines sexual harassment and criminalises any act committed by a person who assaults a woman with the intent to offend her modesty. According to section 354A of the IPC, a man committing any of the following acts can be defined as sexual harassment.[x]
- Unwanted and explicit sexual overtures in physical contact and approaches ;or
- a demand or request for sexual favors; or
iii. Sexual harassment is defined as the act of exposing a woman to pornography against her will or making sexually suggestive statements.
PUNISHMENT
Any man committing this crime of (i), (ii), and (iii) as mentioned above, shall be punished by hard imprisonment for a period of up to three years, or by a fine, or both.
RAPE
A man is said to commit rape , Rape is defined in Section 375 of the IPC[xi] , if he:
- Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman, or makes her do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra, or anus of a woman, or makes her do so with him or
- Places his lips on a woman’s vagina, anus, or urethra, or forces her to do so with him or another person, under any of the following seven circumstances:
• She was forced to do something she didn’t want to do.
• Without her consent .
• With her consent, when she has given her consent by putting her or anybody she cares about in danger of death or harm. • With or without her consent, when she is under sixteen years of age
• She is unable to grasp the nature and consequences of that to which she provides consent when she is unable to transmit consent due to insanity, intoxication, or the administration by him personally or through another of any stupefying or unwholesome substance. [Explanation: Penetration is enough to constitute the sexual intercourse required for the crime of rape.
Exception: Rape does not apply to sexual relations between a man and his wife if the wife is not under the age of 15.][xii]
PUNISHMENT
Section 376 provides the punishment for whoever commits rape. With rigorous imprisonment of either for a term, which shall be not less than 10 years, but maybe extend to imprisonment for life and also liable for fine. If the act commits against a woman and outrages her modesty or any act of sexual harassment or assault comes within the ambit of the definitions proved under the Indian Penal Code, it is subject to punishment as provided by the legislation onfiling an FIR.
How the FIR can be lodged?
An FIR can be lodged by the victim itself and with a witness to the incident or any person with the knowledge of that incident. The courts, on the other hand, made it clear that they do not have the authority to take “Sou moto” cognizance in the absence of any written complaints. Although there is no time limit for filing a complaint against a rape perpetrator.[xiii]
Because the allegations of incidents were so old, it was difficult to confirm the truth of the scenario, which led to the accused bringing defamation lawsuits. On the other hand, the threat of imprisonment silences victims of sexual harassment who choose to seek justice through silent speech.[xiv]
DEFAMATION
Defamation is harmed or damaging a person’s reputation. Defamation is defined as “the offence of hurting a person’s character, fame, or repute by a false and malicious utterance,” according to Black’s Law Dictionary. In law, defamation is described as an attack on another person’s reputation by a false publication with the intent of bringing the person into disgrace by conveying the same to a third party.
Tort law applies to defamation. According to the Tort law, defamation is when someone’s character, fame, or good reputation is harmed by false allegations and malicious comments. Defamation is further subdivided under tort law into slander and libel. Libel is a written derogatory statement against any individual, whereas slander is verbal defamation. In India, however, there are certain distinctions between statements. Everything falls under the heading of ‘defamation’.
These days defamations become more important with the advancement of communication through social media platforms. There is freedom of speech and expression guaranteed under Article 19 of the Indian Constitution. Yet, as is often the case, we often forget to read the fine print of such rights. According to the numerous sub-clauses of Article 19, free expression in India resides on a spectrum of legitimacy. So, while citizens have the right to say what they want, others’ fundamental rights allow for some kinds of speech to be deterred. Defamations laws are a mechanism for citizens to try fellow citizens or organizations for public speech and content that has personally affected or offended their lives.[xv]India has two types of adjudication for defamation.
Civil defamation suits – whoever is convicted under civil defamation cases has to pay monetary compensation to the defamed party.
Criminal defamation suits – Defamers who are convicted of criminal defamation face a sentence of up to two years in jail.
Concern surrounding criminal defamation has only increased in the wake of responses emerging on social media with the #MeToo movement.[xvi]With the growing cases registered and speaking up by the women against the assaulter all over the world, where many personal sufferances have come up in recent times which were buried for long years. Hence the powerful figures are being accused of sexual harassment and abuses, they started to rely on the criminal defamation suits to counter the charges placed against them.
What criminal defamation does in the context of #MeToo is dissuade victims of sexual harassment from coming out about their experiences for fear of going to jail, rightly says by Aarathi Ganesan . Keeping this clause, which has been skillfully leveraged by males like MJ Akbar against women who have spoken out, will maintain a patriarchal status quo that ignores power inequalities in India’s social connections.[xvii]But the problem is not the defamation itself but the society at made up many liars here and there, that defamation laws need to amend as per the needs. Because in case of preserve individual reputation comes with the cost of another’s right to free speech.
One solution is to for India to follow a trend that has been witnessed in many countriesover the past few decades, ranging from the UK to Lesotho: the decriminalization of defamation.
If defamation were decriminalised in India, it would come within the jurisdiction of civil law. In criminal situations, proof must be “beyond a reasonable doubt”. On the other hand, civil cases require the “preponderance of probability”, which means that the evidence only needs to show that it is likely/not likely that something has occurred. In the context of defamation cases related to #MeToo, a victim of sexual harassment doesn’t have to prove their allegations to be true; rather, the accused has to prove that they are untrue. If the claims are proven to be false, the victim of defamation would receive monetary compensation. In this scenario, you are not criminalized for simply exercising your free speech.[xviii]
INDIA ON #METOO
- On the 17th of February 2021, in one of India’s most high-profile #MeToo cases, Priya Ramani was found not guilty of criminal defamation in the case filed by former Union Minister M.J.Akbar in Delhi’s Rouse Avenue Court. As she said to The Wire, This is a big moment for the #MeToo movement”.[xix]
- In India #metoo movement begun around 7th October of 2018, when actor Tanushree Dutta put allegations against Nana Patekar during a shoot of the film Horn OK Please,10 years ago.[xx]
- Bollywood filmmaker named Subhash Kapoor was accused of molestation by a journalist-turned-actress.
- Author Chetan Bhagat was accused of sending a lady journalist improper SMS.[xxi]
- There were allegations on actor-comedian Utsav Chakraborty, an Ex-AIB, as well for sending pictures of his genitals to a woman.[xxii]
- Award-winning film director Vikas Bahl, best known for directing Kangana Ranaut’s film Queen, has been accused of sexually harassing a woman employee of Phantom Films.[xxiii]
- Subhash Ghai has been accused of rape with an anonymous woman alleging that he spiked her drink and then sexually assaulted her, a claim the director “strictly and firmly” denied.[xxiv]
In the past years, around 1971 cases of sexual harassment of woman at the workplaces were reported. According to a 2017 research by the Indian National Bar Association (INBA), 68.9% of defendants did not file a complaint with management because they were afraid of retaliation. Following the #MeToo movement against workplace sexual harassment, which has swept social media in the last two years, a survey revealed that nearly one-third of people have either experienced it or know someone in their family or friends who has, and every second victim has been subjected to physical assault by the offender.[xxv]Despite the fact that this movement originally only focused on adults, the movement spread to address students in K through 12 schools who are also victims of harassment or abuse.[xxvi]
CONCLUSION
#MeToo Movement raises the voices which were buried over the years, whereas it also brought about various other legal implications.Irrespective of India being a democratic country, it has social stigma and stereotype opinions of the members of the society. However, #MeToo has brought new air to the victims who were in search of justice over the years. These empowering works give the power to the other women to speak up against the sexual harassment and assaults committed.
Kristine Ziwica is a Melbourne-based freelance writer said , It’s crucial to remember that these stories are about so much more than a “inspiring” storey about the human spirit’s ability to “overcome.” These women will not be able to overcome what has happened to them. Their lives have been shaped by their experiences. They have some really unpleasant truths to convey. And they are effectively fighting for measures to provide justice to victims and to foster much-needed consent discussions. We’re not doing it right if we’re simply “inspired” every now and then. Survivors of sexual assault need our full attention after being “muted,” blamed, and disregarded for so long.[xxvii]
However, it is just the beginning of the bravery. Already many names came up from the media industry but other workplace sectors require the wake-up calls. Society should tribute to their bravery and give them justice.
[i] EZRIA COPPER,The “#Me Too” Movement,OCT 9, 2020, retrieved from The “#Me Too” Movement – Soapboxie , retrieved on December 2, 2021.
[ii] Shreya , Sexual abuse case: Self-styled godman Siva Shankar Baba booked under Pocso Act , www.OneIndia.com, retrieved from: Sexual abuse case: Self-styled godman Siva Shankar Baba booked under Pocso Act – Oneindia News,retrieved on December 2, 2021.
[iii]R.Aswini, student of The Tamil Nadu Dr. Ambedkar Law University, School of excellence in Law, India,#MeToo Movement Truth Buried Under Years Of Silence , 2019 IJLSI , Volume 1 Issue 2 ,retrieved from International Journal of Legal Science and Innovation | Indexed, Impact Factor. (ijlsi.com).
[iv]Supra note 1
[v]Madhuri Adnal ,Who is Tarana Burke? the women who started the #MeToo movement a decade ago, retrieved from: Who is Tarana Burke? the women who started the #MeToo movement a decade ago – Oneindia News, retrieved on December 2, 2021.
[vi]Gaurav H Tandon ,#Me Too Movement ,www.slidesharenet.com , retrieved from:#Me Too Movement (slideshare.net),retrieved on December 2, 2021.
[vii]Supra note 1 .
[viii]Indian Penal Code .
[ix]Indian Penal Code .
[x]Shubham Sudhir Srivastava , CRIMINAL LAW – II , www.scribed.com,retrieved from: Criminal Law – Ii | PDF | Sexual Harassment | Stalking (scribd.com),retrieved on December 2, 2021.
[xi]Indian Penal Code .
[xii]Indian Kanoon.org ,section 375 of the Indian Penal code , retrieved from Section 375 in The Indian Penal Code (indiankanoon.org) .
[xiii]Supra note 10
[xiv]The Bastion Staff , November 28 , 2018 , Criminal Defamation Amidst #MeToo: a necessary Evil or an Anti-democratic Tool ? retrieved from : Criminal Defamation Amidst #MeToo: a Necessary Evil or an Anti-Democratic Tool? | THE BASTION , retrieved on December 2, 2021.
[xv]Supra note 16 .
[xvi]Supra note 1 .
[xvii]Supra note 16 .
[xviii]Supra note 16 .
[xix]www.thewire.in , #MeToo: Delhi Court Acquits Priya Ramani in M.J. Akbar Criminal Defamation Case , retrieved on December 2, 2021,retrieved from: https://thewire.in/video/watch-metoo-movement-priya-ramani-acquitted-mj-akbar-defamation-case/ .
[xx]Reuters, Tanushree Dutta, who helped trigger India‟s #MeToo moment, says she was not going to back down the second time, ( Oct 16, 2018, 6:18 PM), retrieved from : https://www.hindustantimes.com/bollywood/tanushree-dutta-who-helped-trigger-india-s-metoo-movement-says-she-was-not-going-to-back-down-the-second-time/story-eyYO4rlN2BL405cRGDw1zM.html/ , retrieved on December 2, 2021.
[xxi]Joseph Biswas, Author Chetan Bhagat admits to sending explicit messages; asks for forgiveness (Oct 6, 2018), https://www.thelivemirror.com/chetan-bhagat-admit-sending-explicit-messages-woman/ .
[xxii]Saumya Gourisaria , Oct 9 , 2018 , retrieved from: Richa Chadha: Stories of sexual harassment will tumble out of every space – The Live Mirror, retrieved on December 2, 2021.
[xxiii] Ankur Pathak, Queen‟ Director Vikas Bahl sexually assaulted me, Phantom films did nothing : survivor speaks out ( Oct 16, 2018,6:21 PM), retrieved from : https://www.huffingtonpost.in/2018/10/06/queen-director-vikas-bahl-sexually-assaulted-me-phantom-films-did-nothing-survivor-speaks-out_a_23552623/, retrieved on December 2, 2021
[xxiv]Shreya Thapliyal , What is #MeToo movement? History, significance and impact, www.statesmen.com, retrieved on December 2, 2021.retrieved from : https://www.thestatesman.com/what-is/metoo-movement-history-significance-impact-1502696481.html/ .
[xxv]Apoorva Mandhani, 68% victims avoid reporting sexual harassment at workplace : INBA survey (Jan 6, 2017, 2:49 PM ), retrieved from: https://www.livelaw.in/68-victims-avoid-reporting-sexual-harassment-workplace-inba-survey/ retrieved on December 2, 2021
[xxvi]EZRIA COPPER,The “#Me Too” Movement,OCT 9, 2020, retrieved from: https://soapboxie.com./social-issues/The-Me-Too-Movment/, retrieved on December 2, 2021 , 2021.
[xxvii]Kristine Ziwica , When sexual assault survivors speak out, they help change the culture that enables it , The Guardian , retrieved from: https://www.theguardian.com/commentisfree/2019/sep/24/when-sexual-assault-survivors-speak-out-they-help-change-the-culture-that-enables-it/ , retrieved on December 2, 2021.
