SEXUAL OFFENCES, SEXUAL HARASSMENT, #METOO MOVEMENT AND IT’S LEGAL CONSEQUENCES

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This article is written by Shanya Banerjee of 1^st Semester of Symbiosis Law School, Noida, an intern under Legal Vidhiya

ABSTRACT

Sexual offences are viewed as the most deplorable offences in the general public and is a notable, exceptionally predominant, widely explored, and seriously treated social issue. An acknowledged model classifies orientation provocation, undesirable sexual consideration and sexual compulsion. Provocation doesn’t need to be of a sexual sort, notwithstanding, and can incorporate hostile comments about an individual’s sex. The person in question and culprits can be male or female. The law in India, notwithstanding, perceives and punishes badgering just against female. Sexual harassment is such offense that causes irreparable loss to the victim. However, there are a few offences against human body under criminal regulation like looting, kidnapping, and so on yet, not a single one of them cause such torment and misfortune as the sexual offences cause. Therefore, now the laws are made more rigid knowing the cruelty of the crime. The law against sexual harassment has been made stricter and more extensive in scope. Also, there has been significant alterations in criminal regulation with respect to lewd behavior that have been made more unbending.

Keywords –

Sexual offences, Sexual harassment, Social issue, Crime, Rigid laws against sexual harassment.

INTRODUCTION

SEXUAL OFFENCES

Sexual offences are viewed as the most heinous offences in the general public. They are shockingly expanding step by step. Each day there is insight about sexual offense committed by an individual. Dissimilar to the standard practice, sexual office has no more seasoned age factor except for even youngsters are being tracked down engaged with the offense of sexual wrongdoing. The general public is turning out to be extremely perilous under these conditions. As per studies sexual offences has expanded with the advancement of information development

SEXUAL OFFENCES DEFINED

The Indian Penal Code of 1860 has the definition of sexual offences and their respective punishments Yet, with the need of the time their extension has been stoked by the many emendations, for illustration Criminal Law (Amendment) Act, 1983, which was the amendment that corrected sexual offences provisions. The second was Criminal Law (Amendment) Act, 2013 and the third was the Criminal Law (Amendment) Act, 2019.

In 2012 after the Delhi gang rape Criminal law regarding sexual passed major changes. This was the time when “The Protection of Children for Sexual Offences Act, 2012″ (hereinafter appertained as POCSO) was passed keeping under the consideration security of children. Prior to this there was common law i.e., Indian Penal Code which includes provisions for all and equal. But there was special law for children. That is why with strict discipline provisions this act was for children below the age of 18.

ANALYSIS OF SEXUAL OFFENCES UNDER INDIAN PENAL CODE:

Chapter XVI of section 375 to 377 of the Indian Penal Code, 1860 accords with sex related offences.

SEXUAL HARASSMENT

Sexual importunity is a type of importunity involving use of explicit or implicit sexual saturations, including the unpleasant behaviour. In legal context Sexual importunity is defined under Section 354A of the IPC as a man committing any of the following acts:

(i) Unwanted and explicit sexual advances that involve physical contact; or

(ii) a request or command of sexual favors; or

(ili) showing pornography against the will of a woman; or

(iv) Making sexually inappropriate comments is considered sexual harassment.

1. Anyone who commits the offence in clause (i), (ii), or (iii) will face up to three years in prison, a fine, or both.

2. Anyone who commits the offence in clause (iv) will face up to one year in prison, a fine, or both.

SEXUAL HARASSMENT IN INDIA

Sexual harassment in India is known by the Vishakha’s judgement which for the first time took into consideration about the increasing sexual harassment. The POSH Act defines sexual harassment in line with the Supreme Courts definition of sexual harassment in the Vishakha Judgment.

CASE LAW

Case Name: Vishakha vs. State of Rajasthan

Decided :13 August 1997

Led by: 3 benches of judges:

1. Justice Sujata Manohar

2. Chief Justice J.S Verma

3. Justice B.N Kripal

Court Name: Supreme Court of India

Decision by: J.S Verma (chief justice)

FACTS

The petition was recorded after Bhanwari Devi, a social worker in Rajasthan was severely gang raped for halting a child marriage

• She was an employee of Rajasthan government. She attempted to forestall child marriage as a part of her obligation as a worker of a woman developer. She was assaulted by the landlord community. The rape survivor did not get justice from preliminary court and the rapists were permitted to go free. This arose a woman’s rights group called Vishakha that filed a public interest legislation in the supreme court of India

• Filing a writ petition to protect fundamental rights.

• Sexual harassment at workplace is violation of Article fourteen, nineteen and twenty-one.

• Article 14: Equality before law.

• Article 19: to practice any profession, or to business

• Article 21: protection of life and personal liability.

JUDGEMENT

• 354A was added by an amendment in 2013, before that the governing law on sexual harassment at workplace was Vishakha guidelines given in this case.

• Sexual harassment is any unwelcome sexually determined behavior (whether direct, indirect, or implied), such as physical contact and advances, requests for sexual favors, sexually coloured remarks, showing pornography, and other unpleasant physical, verbal, or nonverbal conduct of a sexual nature.

• The Parliament has passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

Conclusion

The Vishakha Judgement has been an inspiration to the whole nation as it reflects the principles of equality and liberty that is enshrined in our constitution. However, there is a long battle to fight for appropriate legislation to safeguard women against sexual harassment that is proved in the Bhanwari Devi case. Even after two decades, it’s waiting for the justice to be served. The true spirit of Judicial Activism has been portrayed in the Vishakha Judgement and it has been an inspiration to other nations.

OVERVIEW OF THE UNSPOKEN SEXUAL HARASSMENT OF MEN

• Can Men Be Sexually Harassed?

By and large, violations are against society and it never restricts itself to gender, religion, caste or domain. Rape is likewise one of the deplorable wrongdoings which could happen to any of us. It can be against anyone regardless of the gender be it men, women or children. Crime against women has forever been a more concerning issue for everybody. The greater part of the sexual offences happens against women. Laws of a few nations have established various arrangements from a more extensive perspective to manage such intolerable violations however there is no such palatable laws for men. The absence of such laws for men does not imply that a specific sexual offence can’t happen against men. Crime has no restriction to any caste or gender; however, it can happen against any man anywhere regardless of the place

• Laws regarding Sexual Harassment of Men:

Seeing the seriousness of such an offence, the legislators have instituted several acts and sections to control such offences against women. Sexual Harassment of Women at Workplace Act, 2013, section 354, 375, 498A of IPC, and many more have been passed to protect women.

The legislation has failed to enact any such law which safeguards men from such offences even after knowing the consequences of sexual. They give no such solution for those men who could have been harassed physically. In any case, not many different laws have been modified or enacted to help children regardless of their gender.

Article 14 of our Indian constitution provides us with the right to equality before the law without any discrimination. But after assaying the staidness of this offence, a question arises does article 14 provides equal right before the law to both men and women? In my perspective, it doesn’t seem so. The laws in India for sexual harassment are only for women even though there are cases of sexual assault against both men and women

• Rape Or Sexual Assault of Men

It seems to be kept as a dark secret that now society is either oblivious to this or completely turns a blind eye towards such incidents if it occurs and comes out of the shadow. The fear of being disbelieved and social backlash stop the male victims of sexual harassment from opening up to anyone to talk about these painful incidents, encouraging the perpetrators and criminals to go on hunting their prey.

• Sexual Harassment of Men: Current Scenario:

Government needs to concentrate on the growing menace of sexual assault on a man as no doubt it is an atrocious offence. Therefore, it needs to be taken care before it takes any precarious shape. The compass of sexual importunity laws in India should be widened and should do an invariant law and actually become the gender-neutral country which it claims to be.

The social stigmas related to men also needs to be broken down by men themselves and they need to come forward and have the courage to complain about the things they are dealing with. But this is a two-way process. We, as a society also need to broaden our mental horizon and accept that men too can be the victims of sexual assault.

Thus, there is a need for laws that would ensure to provide protection and safety to men as women and that everyone regardless of their gender has the right to live free of harassment or importunity.

RAPE:

Of all the crimes, rape is the most obnoxious one which violates bodily integrity and honour of a woman. Section 375[3] deals with the provisions related to rape.

As per Section 375 of the Indian Penal Code, rape is defined as sexual intercourse without a woman’s consent or against her will. This includes cases where the woman is coerced or tricked, and in any case if she is under 18 years of age; under the circumstances falling under following descriptions:

• Opposed to her will.

• In the absence of her consent.

• With consent when it has been acquired by unsoundness of mind or intoxication of any stupefying or unwholesome substance.

• When the girl is minor, regardless the consent given or not.

• When she is not in the position to give her consent.

Further, any type of penetration or insertion, even if it’s slight or partial, in included in the section. A person can be held liable and guilty by the only fact of penetration and physical injuries to the private part of the woman are not essential. To address the increasing instances of rape of a minor, revisions were made to the rape laws.

NIRBHAYA CASE.

OVERVIEW:

The brutal Delhi gang rape and murder of 2012, famously known as the Nirbhaya case which shook the nation to its very core. On 16 December 2012, a young woman named Jyoti Singh was assaulted, beaten and tortured in a private bus in which she was travelling with her friend. The perpetrators not only raped her but also beat her and inserted an iron rod into her body. The victim was left with several injuries and died two weeks later.

FACTS:

• Date: 16 December, 2012

•Location: Delhi, India

•Outcome: (1) During trial period, Ram Singh died (2) Death sentence was given to the four adult convicts and all were executed on 20 March, 2020.

• Death: Jyoti Singh

•Convicted: (1) Mukesh Singh (2) Vinay Sharma (3) Pawan Gupta (4) Akshay Thakur (5) Ram Singh (6) Mohammed Afroz

•Verdict: Guilty

• Conviction: Rape, murder, kidnapping, robbery, assault

•Sentence: Death sentence to four adult convicts (2) Juvenile convict served the maximum imprisonment of three years.

The Nirbhaya case was a turning point in India’s fight against sexual violence. It brought attention to the issue and led to changes in laws, police procedures, and public attitudes. However, despite the changes, sexual violence against women continues to be a serious problem in India. It is important to continue the fight against it and ensure that justice is served to all victims.

• THE #MeToo MOVEMENT AND PERCEPTIONS OF SEXUAL ASSAULT

The #MeToo movement is a great way for people to share their experiences of sexual harassment and assault. The phrase “Me Too” was initially used by Tarani Burke in 2006. The hashtag was encouraged by Alyssa Milano in 2017 to show the wide range of problems with sexual harassment and assault. It’s important to raise awareness of these issues and support survivors. #MeToo is a social development and mindfulness crusade against sexual maltreatment, lewd behaviour, and assault culture, in which individuals expose their encounters of sexual maltreatment or inappropriate behaviour. It therefore helps the women to overcome their fear and openly speak up about their abuses, knowing that they are not alone.

•MeToo MOVEMENT IN INDIA: HOW IT UNFOLDS:

The #MeToo movement in India raised awareness of sexual harassment and assault. However, holding perpetrators accountable has been slow, with many cases still tied up in legal battles.

1) In 2017: Raya Sarkar, an Indian law student, created a list of seventy alleged sexual harassers in academia in India in 2017. The document was widely circulated on social media, generating debate and controversy. The list included several powerful and famous academics across reputed institutions who were accused of sexual assault by multiple women. The accusations included incidents of assault, harassment, and inappropriate behavior. Many of the assaults were powerful influence in their respective fields. The list became a significant turning point for the debate on sexual harassment in the workplace in India and became a turning point for the #MeToo movement that took off full strength in India the following year.

2) 2018: In October, actress Tanushree Dutta accused actor Nana Patekar of sexual harassment on a film set in 2008. The incident sparked a wave of accusations against influential figures in the Indian entertainment industry on social media.

•THE FAMOUS #MeToo CASE LAW:

The case of Mubasher Jawed Akbar v. Priya Ramani (2021)highlighted the difficulties women face at work.MJ Akbar, a politician, member of the Rajya Sabha, and an Indian journalist, filed a criminal defamation complaint against journalist Priya Ramani. Akbar claimed that Ramani defamed and damaged his reputation through tweets and articles published in both print and online media. Akbar alleged that Ramani made false, derogatory, and malicious imputations against him with the sole ulterior motive to malign his reputation and political standing, in furtherance of her vested interest and underlying agenda.

On the other hand, Ramani argued that Akbar was not a man of a stellar reputation, as several acts of sexual harassment and inappropriate conduct were committed by him. Ramani also explained her plight by highlighting the incident of sexual harassment that she underwent while giving a “so-called” job interview to Akbar.

Initially, the case was demonstrated as a mere criminal defamation case. Still, it later became a part of the #MeToo movement when Ramani’s allegations of sexual harassment against Akbar came to light. The case gained attention from the public and media alike due to the recent developments in the #MeToo movement.

• CONTENTIONS OF THE PARTIES

ON BEHALF OF THE COMPLAINANT:

As per Section 499 of the Indian Penal Code, the accused must prove the existence of circumstances that fall under the exceptions for defamation to be covered under its exception. The complainant had alleged that the accused tried to shift the burden of proof. The accused’s pleading was opposed and it was argued that no good intentions were present behind publishing the articles. Therefore, the entire case was misrepresented by the accused and concealed a significant issue.

ON BEHALF OF THE ACCUSED:

The accused pleaded that her case falls within exceptions 1, 9, and 3 of Section 499 of IPC. While describing the incident, she claimed that 25 years ago, the complainant, acting like a “sexual predator”, harassed her while interviewing her in a hotel room. She couldn’t reach the proper authorities until the #MeToo movement came into the limelight. The accused tarnished the complainant’s reputation by revealing his sexual offences before the incident. Further, the complainant holding an influential and powerful position, it became impossible for the victims to come forward against the offences committed by him. Having an underlying stigma prevalent in the society and the fear of losing one’s job forced the victims to remain under the shed. The entire defence of the accused was based on the fact that she did it for the public good and had no vested interest in the same thereby, covering the offence under the exceptions of Section 499 of the Indian Penal Code.

• JUDGEMENT

The court has considered every aspect of the case and has acquitted the accused. The court was of the view that no defamatory statement was proved, and the statements were made for the larger interest of society. The court made the following observations:

1. The contention raised by the accused that the complainant cannot be seen as a man of stellar reputation was accepted by the court. Further, the court noted that it’s important to hold powerful people accountable for their actions. Fostering impunity in the minds of abusers in unacceptable

2. The court considered the lack of a proper mechanism to be the reason for women to not raise their voices against such offences. At the time of the incident, there was a systematic abuse of the workplace due to a lack of a mechanism to redress the grievance of sexual harassment. Even if there were proper redressal mechanisms, the underlying social stigmas and prejudices prevalent in society would discourage them from approaching justice.

3. The court recognized that the women should be granted greater freedom to express themselves regarding their grievances in the said matter at any platform of their choice. The judgment noted the developments in terms of the #MeToo movement whereby women raised their voices on various online social platforms. The court defined “any platform” as including both courts and media platforms.

4. The court further held that the right to raise a voice on any platform can be done at any time even if it is after decades. The court empathised with the victims and explained that the stereotypical portrait of women in society causes them great turmoil. The conventional notion often holds women back from expressing themselves and hinders their development. Therefore, it becomes necessary to widen the scope of legal protection, which is often barred by the limitation period.

5. It also highlighted the loopholes in redressal mechanisms in India. The case highlighted the loopholes in the redressal mechanisms in India. It is been observed that there was no such vigorous law that would protect the rights of women in case of sexual harassment at workplace until the establishment of the Vishakha guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH). It was only after the introduction of the aforementioned laws that effective legislation was implemented. But it was only a matter of time when the loopholes under the said legislation emerged.

#MeToo has been one such movement providing mob justice without actually taking to the formal proceedings of the court. Although unregulated, such movements foster self-empowerment and solidarity among women. However, women must not misuse their power to protect their interests. These movements have a significant impact on society, but must be monitored by the courts.

• CONCLUSION

In conclusion, what I feel is that sexual offences and harassment are still the utmost serious issue that needs to be taken care of. While the legal system has taken some steps to protect, there is still a lot of work to be done. The Indian government should also realise that if the crime is gender-neutral the laws also need to be gender-neutral and hence, an action should be taken by the government of India for equal harassment laws for men to prove that India truly believes in gender neutrality and equality.

References