Site icon Legal Vidhiya

DETAILED EXPLORATION OF VARIOUS FORMS OF SEXUAL HARASSMENT AND CASES

Admin
Advertisements
Spread the love

This article is written by Saloni of 8th Semester of BBALL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of Laws Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

One type of discrimination that is not only prohibited but also has the potential to seriously hurt the victim is sexual harassment. Gender, age, or status is irrelevant when it comes to sexual harassment, which is regrettably common in many settings. To properly recognize and handle sexual harassment, one must be aware of its various forms. We will talk about the different types of sexual harassment in the following article, as well as how to spot them and deal with them.

KEYWORDS:

sexual harassment, sexual assault, sexual abuse, key provisions of Posh Act, 2013

INTRODUCTION

There is no universally accepted definition of what sexual harassment is, despite efforts made by both national and international organizations to eradicate it. While national laws concentrate more intently on the criminal activity, international treaties generally define sexual harassment broadly as a form of violence against women and as discriminatory treatment. Sexual harassment is defined as follows on an international level by the United Nations General Recommendation 19 to the Convention on the Elimination of All Forms of Discrimination against Women:

Such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.[1]

MEANING OF SEXUAL HARASSMENT

Any type of unwanted, insulting, or intimidating sexual behavior is referred to as “sexual harassment.” Any undesired sexual behavior that has the potential to be verbal, nonverbal, physical, psychological or visual harassment is considered sexual harassment. Sexual harassment breeds hostility, intimidation, and offensiveness in the workplace, at home, and in educational settings. Women can be sexually harassed anywhere, including in public and at home. Such behavior is commonly referred to as “sexual harassment of women at the workplace” when it occurs in a work environment.

VARIOUS FORMS OF SEXUAL HARASSMENT

Legally speaking, sexual harassment is categorized as a type of sexual abuse. There are, in general, various types of sexual harassment.

VERBAL SEXUAL HARASSMENT

Unwelcome sexually suggestive remarks made verbally, whether explicitly or subtly, constitute verbal sexual harassment.  One sort of harassment that doesn’t include physical contact is verbal abuse, which can leave workers feeling uneasy, degraded, scared, or afraid. The most common forms of verbal harassment are as follows:

NON-VERBAL SEXUAL HARASSMENT

Unwelcome bodily gestures or acts of a sexual nature are considered non-verbal forms of sexual harassment. Sexual harassment that is non-verbal might take the form of leering, gazing, or making obscene gestures. Unwelcome touching or brushing against someone’s body can also be considered non-verbal sexual harassment. Any unwelcome sexual communication or behavior that utilizes indirect signals but does not result in physical sexual contact is considered nonverbal sexual harassment. This includes:

PHYSICAL SEXUAL HARASSMENT

Unwelcome sexual bodily contact is referred to as physical sexual harassment. The term “physical sexual harassment” refers to unwanted and improper physical acts with a sexual implication. When someone touches you improperly and against your consent, that is considered physical harassment. Another name for workplace violence is physical harassment. The following are the most prevalent types of physical harassment:

 VISUAL SEXUAL HARASSMENT

This type of harassment entails inappropriate and offensive sexually suggestive visual displays that make the audience feel uncomfortable or threatened. When someone exposes oneself to another person without the victim’s agreement, it is known as visual harassment, and it negatively impacts the victim’s attitude or performance at work. This form of sexual harassment involves:

PSYCHOLOGICAL SEXUAL HARASSMENT

The use of psychological strategies to threaten, intimidate, or control someone in a sexual way is known as psychological sexual harassment. Psychological sexual harassment instances include

CYBER SEXUAL HARASSMENT

Cyber sexual harassment is when someone is harassed, threatened, or intimidated in a sexual way via digital technology. It includes-

QUID PRO QUO HARASSMENT

The Latin phrase “quid pro quo,” which means “something for something,” describes how proactive this kind of harassment is. Unwelcome sexual approaches, requests for sexual favors, or other verbal or physical acts of a sexual character that are directly or indirectly connected to a decision about employment are all considered forms of quid pro quo harassment. For instance, a boss might provide a pay increase or promotion in return for erotic favors.

Characteristics of quid pro quo: following are the characteristics of quid pro quo sexual harassment:

Exchange of sexual harassment: The harasser suggests or promises to offer the victim specific job perks, in exchange for the victim complying with their sexual demands.

Unequal power dynamic: The harasser takes advantage of their position of power to coerce the victim into having sex or doing sexual favors.

Unwelcome advances: It is not harassment if the victim does not accept or refuse the sexual approaches. It might not qualify as quid pro quo sexual harassment if the victim willingly starts a consensual relationship with the harasser.

Adverse consequences: The victim may face adverse employment outcomes, such as a promotion, termination, loss of career possibilities, or retaliation, if they fail to comply with the harasser’s requests.

Quid pro quo sexual harassment includes:

If an employee doesn’t have a sexual relationship with their supervisor, the supervisor threatens to dismiss them.

If the employee accepts the manager’s sexual approaches, they will have a good work schedule.

DIFFERENCE BETWEEN SEXUAL HARASSMENT AND SEXUAL ASSAULT

SEXUAL HARASSMENTSEXUAL ASSAULT
The phrase “sexual harassment” is broad and encompasses a wide range of unwanted physical and verbal sexual attention.Sexual assault is defined as any sexual activity or contact—often physical—that takes place without the victim’s consent.
Although sexual harassment typically contravenes civil rules (you have the right to work or study without being harassed), it is frequently not a crime.Criminal activities are typically referred to as sexual assault. Among the various types of sexual assault are: Body penetration, commonly referred to as rape.A rape attempt.Making the victim engage in sexual behaviors against their will, such as oral sex or body penetration.Embracing or unwelcome sexual contact.

LEGAL PROTECTION TO ADDRESS SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

In the historic decision of Vishakha v. State of Rajasthan (1997), the Indian Supreme Court recognized that sexual harassment of women at work violates their rights to equality and dignity, especially their right to a safe workplace. Prior to a legislation being issued on the subject, the court also established guidelines in this ruling, known as the Vishakha guidelines, which were utilized in sexual harassment cases. This led to a number of subsequent Supreme Court rulings that clarified and explained the Vishakha standards.

The sexual harassment (prevention, prohibition and redressal) act, also known as the sexual harassment of women at workplace (prevention, prohibition and redressal) act, was passed and put into effect in 2013 with the following goals in mind-

Furthermore, Section 354A was added to the Indian Penal Code (IPC) in 2013 as part of an amendment that made all types of sexual harassment against women illegal.

INTERNATIONAL EFFORTS TO PREVENT SEXUAL HARASSMENT

For a very long time, there had been international conventions protecting women from harassment. From them, the Vishaka Guidelines took inspiration in the following areas:

  1. GENERAL RECOMMENDATION 19 TO THE CONVENTION ON ELEMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

As a party to this convention, India has incorporated elements related to gender-specific violence, unwanted sexually-determined behavior, and employment equality for women into the POSH Act.

2. INTERNATIONAL LABOUR CONVENTION ON DISCRIMINATION ( EMPLOYMENT AND OCCUPATION) CONVENTION:

This document was ratified by India on June 3, 1960. India is required under this Convention to forbid and stop any gender-based discrimination in the workplace.

CASES RELATED TO SEXUAL HARASSMENT

Vishakha and others v. State of Rajasthan (Bhanwari Devi Case)[2] 1997

In India, the Supreme Court’s historic decision in Vishaka v. State of Rajasthan (1997) laid the groundwork for the legislation against sexual harassment in the workplace. Guidelines for combating sexual harassment at work were released by the court.  These guidelines include the establishment of district and state complaint committees, the adoption of an employer code of conduct, and employee education regarding the subject of sexual harassment. The Bhanwari Devi case, which created legal frameworks for the prevention and redress of sexual harassment and acknowledged it as a type of gender-based violence, had a tremendous impact on women’s rights in India. The case continues to set a significant precedent in India and beyond for the struggle against gender-based violence, including sexual harassment.

Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case)[3]

The Supreme Court of India rendered a decision in 1979 in the criminal case Tuka Ram and Anr v. State of Maharashtra, popularly referred to as the Mathura case. The case stemmed from an alleged 1972 event at a Maharashtra police station where two police officials allegedly sexually assaulted a young woman named Mathura. The trial court found the police officers not guilty, citing Mathura’s willingness to engage in sexual relations with them. The High Court heard an appeal from Mathura’s family and upheld the acquittal. Following an appeal, the matter reached the Supreme Court, which decided in Mathura’s favor and mandated a new trial for the police officers.

Independent thought vs. union of india and Anr.[4]

The Supreme Court of India rendered a decision in the case of Independent Thought v. Union of India and Anr. in 2017. The case started with a petition submitted by Independent Thought, a non-profit organization. The petition contested the legitimacy of an Indian Penal Code provision that permits a husband and wife to engage in sexual activity if the woman is between the ages of 15 and 18. Independent Thought contended that because the exclusion permitted the sexual exploitation of minors, it went against young girls’ rights to equal protection under the law. The group said that the exclusion was unfair and went against international agreements protecting children’s rights. In agreement with Independent Thought, the Supreme Court overturned the exception, ruling that it violated young girls’ rights to be shielded from sexual exploitation and abuse. “Arrigid, capricious, whimsical, and violative of the rights of the girl child,” the Court declared, was the exception.

Mukesh and Anr. Vs. state of Nct of Delhi and ors.[5]

On the evening of December 16, 2012, a juvenile and five adult men viciously sexually assaulted a 23-year-old trainee physiotherapist on a moving bus in Delhi. She had an iron rod attack, which resulted in the removal of her intestines. She passed away later. All accused, with the exception of minors, were unanimously sentenced to death by the bench. A three-year term at a reformatory institution was handed down to the youngster who was found guilty of equal involvement in the incident and sexually assaulted the woman. Following the incident, JS Verma chaired a panel whose recommendations resulted in the passing of the Criminal Law (Amendment) Act, 2013, which amends the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, and the Protection of Children from Sexual Offenses Act, 2012 in relation to laws pertaining to sexual offenses. Act expanded the definition of rape and established the death penalty for cases of rape in which the victim dies or is rendered permanently vegetative. The Act also establishes a number of new crimes to strengthen existing legislation.

CONCLUSION

According to NCRB data, the number of rapes reported in India was 33,707 in 2013. Between October, 2012 and October, 2013, the number of molestation complaints increased by 44%. As per the recent compilation of data by Delhi police, 616 rapes and 1,336 molestation cases were registered between January 1 and April 30, 2014, which is 36% increase compared to the previous year. Considering the latest statistics of the NCRB, 93 women in India are being raped every day.[6]  The Sexual Harassment Act is an essential and well-crafted legislation that is a vital tool in providing a safe, secure, and healthy work environment for all employees, regardless of gender. In addition to the Act, the Indian government has established the “Sexual Harassment Electronic box” (SHE BOX), which serves as a single point of contact for reporting sexual harassment allegations that are then forwarded to the relevant authorities for additional action. Establishing a culture that filters out SHWWP is beneficial for both the organization and its personnel.

REFERENCES:

[1] Sexual Harassment – What is Sexual Harassment? (n.d.). http://hrlibrary.umn.edu/svaw/harassment/explore/1whatis.htm

[2] (Vishaka & Ors vs State Of Rajasthan & Ors, 1997), https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment/

[3] (Tuka Ram And Anr vs State Of Maharashtra, 1978) https://www.thelegalvidya.in/tukaram-anr-vs-state-of-maharashtra#:~:text=But%20case%20of%20Tukaram%20%26%20Anr,the%20history%20of%20Indian%20judiciary.

[4] https://www.legalserviceindia.com/legal/article-6315-independent-thought-vs-union-of-india-2017-10-scc-800.html

[5] (Mukesh & Anr vs State For Nct Of Delhi & Ors , 2017) https://lawminds.co.in/case_briefing_dummy/case-no-41-mukesh-and-anr-v-state-for-nct-of-delhi-and-ors/#:~:text=State%20for%20NCT%20of%20Delhi%20and%20Ors.,-By%3A%20%2DArpita%20Shukla&text=TITLE%20%E2%80%93%20It%20is%20a%20landmark,was%20sent%20to%20juvenil

[6] Phukan, R. S. (2016, December 16). Nirbhaya Gang Rape & After – How effective are the new laws – India. My India. https://www.mapsofindia.com/my-india/social-issues/nirbhaya-gang-rape-after-how-effective-are-the-new-laws

[1] Sexual Harassment – What is Sexual Harassment? (n.d.). http://hrlibrary.umn.edu/svaw/harassment/explore/1whatis.htm

[2] (Vishaka & Ors vs State Of Rajasthan & Ors, 1997), https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment/

[3] (Tuka Ram And Anr vs State Of Maharashtra, 1978) https://www.thelegalvidya.in/tukaram-anr-vs-state-of-maharashtra#:~:text=But%20case%20of%20Tukaram%20%26%20Anr,the%20history%20of%20Indian%20judiciary.

[4] https://www.legalserviceindia.com/legal/article-6315-independent-thought-vs-union-of-india-2017-10-scc-800.html

[5] (Mukesh & Anr vs State For Nct Of Delhi & Ors , 2017) https://lawminds.co.in/case_briefing_dummy/case-no-41-mukesh-and-anr-v-state-for-nct-of-delhi-and-ors/#:~:text=State%20for%20NCT%20of%20Delhi%20and%20Ors.,-By%3A%20%2DArpita%20Shukla&text=TITLE%20%E2%80%93%20It%20is%20a%20landmark,was%20sent%20to%20juvenil

[6] Phukan, R. S. (2016, December 16). Nirbhaya Gang Rape & After – How effective are the new laws – India. My India. https://www.mapsofindia.com/my-india/social-issues/nirbhaya-gang-rape-after-how-effective-are-the-new-laws

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

PDF 📄
Exit mobile version