#MeToo Movement: The key impact of this movement, to my mind, as a legal practitioner and a woman, is that women are feeling the support and encouragement to shake off their trauma, sense of shame and hesitation to come forward and open up about their experiences.
By Sonali Basu-Parekh
The #MeToo movement has primarily been a social media campaign so far. Social media has afforded the platform for the coming together of women, in solidarity, in support and in encouragement. It is as if it has sounded the bugle in the fight to empower women and to warn wayward men that their time to exploit is up.
#MeToo Movement: Legal Ramifications and Impact for people involved
What are the legal ramifications for the people involved in it on either side of the fence? In a near unanimous chorus for strength and empowerment and retribution, there are also contrary voices which ask- why such delay, what proof, what justification, what recourse and above all what about mala-fide victimization and maligning of innocents?
The key impact of this movement, to my mind, as a legal practitioner and a woman, is that women are feeling the support and encouragement to shake off their trauma, sense of shame and hesitation to come forward and open up about their experiences. There is indeed strength in numbers. Not only is this important for women’s empowerment, but also a key factor in effective detection, control and punishment of such civil or criminal offences against women. Without a complainant coming forward, it is next to impossible to take action against the guilty. Without shedding the sense of shame, it is impossible to ward off societal disapprobation. This campaign has provided encouragement to fight this menace in the future, hopefully it will also act as a deterrent. The perpetrators are finally feeling the heat.
#MeToo Movement: Legal Safeguards and Remedies at Workplace
Workplace sexual harassment is a manifestation of a perceived skewed balance of power. It relies heavily on the harasser’s sense of safety arising out of a woman employee’s subordinate status and her unwillingness to speak up. That status quo/complacency is being jolted. At least some of them have had to pay a price.
Workplace safety is essential to enable more women to join the work force and attain economic independence. Workplace safety had been first mandated by the Supreme Court in the ‘Vishakha’ judgment, laying down a set of temporary guidelines including a mandatory internal committee in every organization, which would also include women members.
This was reaffirmed in Apparel Export Promotion Council’s case and Medha Kotwal Lele judgment. Vishakha was then followed up by the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which again mandated for an internal committee in every sort of workplace but now made workplace sexual harassment of varied descriptions civil and criminal offences with penalties and punishments, both for the accused and the employer. After this movement, perhaps both women and men will be much more prepared in the future. It will create an enabling environment for women, and men will learn their limits. Prospective offenders will stand cautioned.
But women in workplaces must know what are the legal safeguards, rights and remedies available to them – to understand the duties of their employers, their male colleagues and their own duties in the event of an incident. A victim may seek redressal and action under the company rules, or under the Act. She may, depending on the nature of the crime, also file an FIR. The present campaign, however, seems unable to recognize the difference in levels of offences in each case.
A particular incident/act may or may not be enough for dismissal, some may be of criminal nature but only attracting penalty, while some may attract a jail term. The seriousness of the crime, legally, may vary, despite substantial trauma in every case. So will the remedy and the course of action.
#MeToo Movement: Trial by social media? A serious negative
Of course, a key criticism of the campaign remains that it is trial by social media, whereby the accused has no opportunity to present his defense and faces great hardship and cost in his personal, professional and social life. His family suffers irreversibly along with him, and if innocent, this is a serious negative.
Seeking redressal after a long passage of time may well hamper investigations, civil or criminal, into the incident. Civil complaints are struck by the law of limitations. There is no limitation in Criminal action, but long passage of time eliminates evidences and witnesses, both for the victim and the accused. Both parties face unfair hardship and harassment in proving their case or otherwise.
Sometimes, for example, dismissal is redundant because the accused has already left the organization. Or any scope of organizational punishment is precluded.
Further, there are lacunae in the Act itself. It allows no anonymous complaints and requires the victim to be present before the committee. However, women may not always be ready to face the accused. In such cases, organization rules ought to be such where she can come before the internal committee, but not before the accused. This will enable low-level offences to be detected before they escalate into serious incidents.
The Act itself needs to be restructured to remove such anomalies. Eg It fails to deal with every workplace, viz. within the cabinet. There is also lack of clarity on actions before employment in the present organization.
#MeToo Movement: What are the remedies available to the accused?
Apart from defending himself in any civil or criminal action instituted against him, he can primarily file a suit for defamation. However, a suit for defamation is a unique creature. The burden first lies on the suitor (in this case, the accused) to prove that he has a reputation which can be sullied and has been sullied. After this, the burden shifts on the victim who will need to prove her case.
We can only hope that the #MeToo Campaign will evolve from a social media campaign to a nationwide campaign for workplace security and dignity for women, creating an enabling environment where the legal, professional, personal and societal framework strengthens, enables and supports women rather than victimize them.
(Sonali Basu-Parekh is Partner at Parekh & Co, Attorneys & Advocates. She has an MPhil in Economics and an LLM degree from University of Michigan. She is admitted to practice in India and New York. Views expressed in this article are the author’s own.)