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November 29, 2013

Rule of law over agency

Distinctive legal remedies for cases of sexual harassment can have the unintended consequences of weakening the legal system and disturbing public order.

A journalist working with the Tehelka magazine was allegedly molested by its Editor-in-Chief earlier this month. As per media reports, the complainant was looking for an internal redressal through an unconditional apology from the accused and further investigation by a committee formed according to Vishaka guidelines. However, an email from the victim describing the gruesome nature of the assault and subsequent clever and half worded apology from the accused soon came into public domain. This created an unprecedented public uproar. The Goa police started their investigation by registering a suo moto FIR even before the victim had filed a formal complaint. While everyone condemned the incident and concedes that the victim should get justice, there are substantially differing views on what justice actually means in cases of sexual assault. Some argue that the choice of remedies, whether criminal or civil, should be left to the discretion of victim while others opine that the assault is a cognisable offence against the state and the rule of law is too important to be left to victim’s choice alone.

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It is difficult not to be sympathetic with the core argument that expanding women’s agency is important in a deeply unequal society like India. But as Naila Kabeer argued, agency can have both positive (“power to”) and negative (“power over”) relations to power. The positive aspect of the agency is that it recognises the ability of an individual to make his/her own choices that affect his/her life but the negative agency overrides the agency of other actors. For instance, a cognisable offence like a sexual assault is a crime committed against the state and the state is also an agency, which is mandated to exercise power to establish order in a society. By giving discretion to the victim, the state is deprived of its tools to enforce rule of law. There can be any number of laws but to establish order it is imperative that the state imposes some “reasonable restrictions” on our rights and choices. As Roberto Callaso said, “Order is what law, on its own, cannot achieve. Order is law plus sacrifice, the perpetual supplement, the perpetual extra that must be destroyed so that order may exist. The world cannot live by law alone, because it needs an order that law alone is unable to provide. The words needs to destroy something to make order; and it must destroy it outside the law, with pleasure, with hatred, with indifference”. Without this sacrifice or destroying some of our choices or limiting our rights at the margins, it would be impossible for the state to establish public order in any society.

The next argument in favour of autonomy and choice is that the victim would be in a deep emotional distress and that the first priority should be to bring relief to her instead of opting for “greater good”, which, far from bringing relief to the victim can subject her to more trauma. Considering how litigations languish in courts for years and the manner in which the victim is humiliated in the name of cross-examination, this argument has some value. Added to this agony, the social stigma and family pressure makes it difficult for the victim to pursue this case further. There were many cases where the victim and sometimes the members of her family committed suicide, as they could not bear the burden of isolation and social rejection. It is no wonder then that the social stigma and the arduous judicial process sometimes forces the family of the victim to think that the fight for justice, far from giving any relief, inflicts more suffering on them.

This predicament was narrated by another victim who was allegedly sexually assaulted by a retired judge, to quote, “When I told my grandmother I was assaulted, she couldn’t understand why I was making a big deal out of it. In fact, she didn’t even think it was wrong. ‘We have all been harassed at some point or the other,’ she would say. My mother, meanwhile, said what had happened was indeed wrong, but that I had to accept it and move on. ‘You don’t have any other option.’” It requires an extraordinary level of courage and time to first come out of the agony of the assault and then from the social stigma. It is inhuman to not recognise what the victim must be going through, especially in a patriarchal society like ours. However, if educated and victims of relatively good social standing and public support chose to put the veil on the crime of sexual assault through informal settlements then there is hardly any hope for the underprivileged and vulnerable to get justice.

It was reported in the media that not too long ago, a powerful editor settled a sexual harassment case by paying the victim “eight-digit compensation”. The victim may or may not be satisfied with the compensation but the fact of the matter is that the perpetrator is still at large and could be assaulting more women. The settlement of this nature, which has no legal backing, is no different from extortion. If sexual assaults end up as “amicable settlement” between the two concerned individuals, then every perpetrator would use his money and muscle power to coerce the victim to a settlement. Instead of fixing the gaps in legal system, this would reduce the criminal justice system, in so far as sexual assaults are concerned to mere khap panchayats (village courts delivering instant justice without due process).

Apart from the procedural and legal issues, there is something deeply problematic in the manner in which the arguments in favour of the victim’s choice are structured. These arguments in fact have the unintended consequence of reinforcing the very stereotypes that need to be dismantled. The flurry of articles and blog posts from feminists describing the emotional trauma of the sexual assault is in a way legitimising the conservative social expectation that all victims should necessarily be in a state of extreme distress. Instead of shaming the perpetrator this approach actually stigmatises the victim. As a thought experiment, if a woman sexually assaults a man, would the reaction of society be same as that when a woman being assaulted by a man? That the descriptions of trauma, honour, dignity, autonomy and agency surface only when a woman is assaulted in itself explains that more than the violation of body, it is the patriarchal mindset which beings out this behavioural expectation for women.

Because the society already has deeply entrenched inequities and women should be given an additional layer of protection cannot be an argument for designing legal remedies, which further feed and perpetuate those inequities. Women’s agency, autonomy and empowerment are truly achieved through equal sharing of power, resources and social status. The arguments for distinctive legal remedies far from fixing any issues have the unintended consequences of weakening the legal system and disturbing public order. The arguments of protecting the privacy and autonomy of an individual cannot be extended so far that the legal system ignores punishing rapists because the victim chooses not to do so.

Photo: killrbeez


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