Indian feminists and law must stop grading sexual harassment

The #MeToo movement has spun several difficult, uncomfortable but important conversations around consent, bad sex and the many banal but toxic instances of harassment in India’s homes and workplaces – the myth of the “good, liberal” guys, the systems that prop up and abet sexual predators. But none of these is as controversial as #MeToo’s tetchy relationship with crowdsourced lists.

Plenty of think-pieces and comments have been fired from the lists’ defenders and detractors alike. This raises the question: Why do these lists, which literally have no legal bearing, exist in the first place?

We are told that this is the modern manifestation of the age-old whisper network. But it also reveals an important truth that most Indian women instinctively know – our laws don’t reflect the realities of the multiple forms of abuse that women face on a regular basis, and even when the laws do, the justice system simply doesn’t work.

Serious vs ‘non-serious’ crimes against women

Indian women are repeatedly told to trust institutions because that is the least bad option we have, even if incidences of justice are few and far between. We are also asked to have a sense of proportionality when it comes to sexual harassment and assault even though supposedly “minor” acts can be debilitatingly traumatic.

One may well ask, Where is the due process for the many acts of harassment that we face every day – the friends and their friends who force themselves on us when we are drunk or asleep, the groping by strangers on crowded public transport, the guy who shows us his dick in the subways, the endless leering and catcalling, the constant pressure and coercion to give in to consensual but “bad sex,” the sheer pervasiveness of intimate-partner violence that are conveniently rebranded as love affairs gone sour, or the polite rebuff that’s construed as “borderline romance” and “mutual attraction” (as Lawrence Liang, indicted for sexual harassment by his university in Delhi, claimed in his testimony)?

Not all such acts are equivalent to rape or outright assault, and very few will ask that the perpetrators be locked up for good. But in the absence of ethical clarity and legal vocabulary, let alone semi-adequate due processes, will Indian society help us deal with the gradual, relentless, and pernicious toll these acts take on us? Unlikely.

What society is very good at, though, is repeatedly reminding women that some abuses are not as bad as others, that a Woody Allen is not as bad as a Harvey Weinstein, that we need to grade the punishment of the act according to the context of the harassment. Strangely enough, women already know this and have internalized it to such an extent that much of the uproar over the Aziz Ansari incident involved women admonishing “Grace” for confusing bad sex with full-blown harassment.

In Lawrence Liang’s case, the Ambedkar University Delhi internal complaints committee, which found him to be guilty of sexual harassment, only prescribed his removal from the administrative post of dean at the School of Law. He will continue to teach at the university.

The committee’s decision has been hailed as “judicious” by his defenders, who sought to use the ambiguous and subjective Theory of Gradation of Punishment to argue that his non-termination from his job was fair. One person they failed to mention in their spirited defense was the victim, who has received no compensation, let alone a written apology from the perpetrator. In their zeal to ensure that the accused is not harmed, the champions of due process expect victims to accept whatever crumbs are thrown at them.

The limitations of laws

Unfortunately, this kind of tacit understanding with the forces of patriarchy doesn’t prevent us women from its many consequences – the mental trauma, the hyper-vigilance, the persistent fear, the loss of freedom of mobility, of faith, of trust, of the ability to let one’s guard down, and living a half-life filled with never-ending stress because you never know when the next violation of your humanity may strike. No one pays a price for those transgressions except the victims, and as women, we are told to suck it up and weather them out.

However, what many conveniently forget is that these acts have enough destructive power to traumatize their victims for life. So we neatly box them in a “bad but not as bad as rape and sexual assault” category, tuck them away in some forsaken corner of our brains, and bargain with society on the really serious crimes of rape and sexual assault and hope that at least there we get the justice long owed to us.

Unsurprisingly, though, sexual-harassment cases such as Liang’s show that internalization of this gradation of various forms of harassment doesn’t lead to substantive or restorative justice, it simply means that certain kinds of acts are precluded from being addressed through existing systems. With one of the most renowned feminists suggesting that he should not be ostracized by the academic community, thereby laying the groundwork toward his full rehabilitation – so much for justice via due process.

The list as a tool

Here’s the thing, and it may surprise you: Nobody is arguing that we do away with due process in its various avatars. Sure, it’s required along with changing mindsets, much-needed reforms, and better implementation of the law. But to be under this illusion that due process is some God-given truth, immune to failure, innocent of sin, incorruptible of spirit, would be little more than wholly damaging, while patriarchy continues to reign over us in plain sight.

When the advocates of due process ask us to strive patiently for the Garden of Eden where Adams and Eves are equal beings while delegitimizing the ways in which we protect our here and now, they are in essence expecting us to continue to suffer as they try to chip away at centuries of misogyny. This may have been admirable if women weren’t already dying, sick, harassed, traumatized, and unable to afford this glacial pace of change any more.

Refusing to depend solely on the old order of things isn’t some sort of reverse discrimination akin to a trial in the court of public opinion. Even with the advances made, thanks to #MeToo, our testimonies count for so little that a lone victim isn’t considered to be credible enough. Even now multiple fingers need to be pointed in the same direction before one of us is even heard.

There are millions of women out there for whom #MeToo hasn’t happened; mechanisms like whisper networks, naming and “shaming” (though whether these men are capable of feeling any shame is highly questionable), anonymous, crowdsourced lists, and social-media solidarity are the only immediate recourses available to help them avoid their own MeToo trauma, as well as to shield survivors from further predation, and I, for one, will be damned if people stop me from using them.

These lists, our networks, and our survival strategies are not to be misconstrued as a replacement for existing justice systems. Rather, they should be seen as a tool of the oppressed, the survivors of sexual harassment and abuse who refuse to be repeat victims in the hands of a patriarchal state, and its inherently sexist due processes. For us, it is not a matter of debate; it is our inalienable right to lead a full life.

This is the final piece in a two-part series on sexual harassment. Read the first part here.

The author would like to acknowledge Sabina Yasmin Rahman for her contribution to this article.