By Amit Bindal
The # Me Too moment has emerged as a compelling response to the structural failure of law and due process on the question of (hetero)sexual violence. Women across the world have sought solidarity through social media platforms to share their personal stories which either could not be reported, or when reported, were buried, brushed aside, ignored. There is no way that the issue of sexual harassment can be trivialised any longer.
An aspect of the law that requires careful consideration but has remained unaddressed relates to suspect subjects with respect to sexual harassment. Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, provides punishment for “false or malicious complaint” on the part of the complainant. The section provides for procedures to deal with a false complaint or complaint made on the basis of a “forged or misleading document”. This provision, perhaps designed with the objective of dissuading malicious complaints, designates the very subject of the legislation suspect. Based on a sexist, stereotypical notion of women as lying subjects, this provision itself creates a hostile environment for women which the law intends to transform.
One is left wondering why such a provision finds no place in security legislations despite the fact that wrongful prosecutions in terror-related cases has taken epidemic proportion. How should one read the exclusive presence of such a provision in a welfare legislation designed for women? It can be argued that the misuse provision is envisaged to strengthen the law but its presence exclusively in women-related laws raises doubts about its aspirations. Wouldn’t this section deter the victims from complaining? Is this section not turning the very beneficiaries of the law into suspects? In a culture where the issue of harassment is trivialised, would a victim not be dissuaded from evoking the due process of law? Why should this provision then not be considered as a historical continuation of suspecting the credibility of women in cases where they wish to fight against sexual wrongs? The law against sexual harassment would only inspire confidence and be effective if, first and foremost, it provides credibility to the victim who comes before the law. In other words, only if the law treats women as credible subjects.
However, this is where one has to resist the temptation of going awry and stultifying the potentiality of the phenomenon. Providing credibility to the victim and standing by the victim are distinct from believing the account of victim’s testimony. Believing the victim, if understood as blind faith and uncritical endorsement of the narrative, forecloses any possibility of lending any credibility to the procedures of justice. An endorsement of the victim’s account with total disregard for these procedures has dangerous consequences which could undermine the ethics of both the feminist struggle and law.
Insistence on believing all the accounts, without subjecting them to the evidentiary requirements of due process, constructs women as pristine, pure, devoid of any psychic complexity. Such a construction not only denies women humanity and fallibility, but, more gravely, is the ruse of patriarchy which elevates women to a higher pedestal and operates on idealisations of womanly behaviour. Slavoj Zizek recently pointed out how the Me Too moment with overt emphasis on women’s subjective feelings and experiences as determinative of their truth runs the risk of reinforcing the Cartesian duality of reason-emotion, man-woman which feminists for the longest time have strongly contested.
Second, collapsing ‘credibility’ with ‘believing’ would take feminists down the road of dominance feminism, inspired by Catherine Mackinnon and others, who in their structurally deterministic logic equate all sex with oppression. This vision has been long challenged not only by sex-positive feminists but also those who seek to understand desire in all its complexity. Drucilla Cornell’s feminist insight is most relevant in this regard. In her book Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (1991), Cornell argues that “believing women cannot be reduced, as Mackinnon would do, to believing their accounts of their oppression. Believing involves believing in. Believing in, allowing us credibility, includes recognition of legitimacy, not just the accuracy of our account.”
This distinction between believing in women as opposed to believing the accounts of women’s oppression demonstrates and opens up the possibilities of combating sexual harassment without abandoning the rule of law. It is the denial of credibility and suspicion of the complainant inherent in the law and legal process that has led to the failure of due process. Giving up due process and rule of law altogether would amount to throwing the baby out with the bathwater.
If we are striving towards ethical feminism where responsibility both to oneself and the other are not entirely eschewed, then while the Me Too moment should be applauded for the space it has created for women’s voices, it should not be a post-due process evocation of justice without law. The contemporary moment of revolt against sexual harassment has a potentiality of re-thinking the structural biases against women and re-enforcing due process and rule of law. For this we need to hold on to the rule of law and put in place structures and mechanisms where the narratives of the either side are not disregarded even before being heard.
Whether we would struggle for ethical feminism to turn the potential of Me Too into an actuality through structural transformation or we would stay with a feminist politics based on blind belief, disavowing knowledge, is the real choice before us.
Amit Bindal is an Assistant Professor at Jindal Global Law School of O.P. Jindal Global University.
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