Four Major Defenses Against #Metoo Allegations Are Not Tenable

Abstract

Abstract

Introduction: The “Me too” movement against sexual harassment has spread in a big way on the social media with many men defending the allegations against them.

Aim: To examine the current evidence on the 4 major defenses against sexual harassment—consensual sexual behavior, behavior as “normal,” complaint without proof has no meaning, and long delay in filing complaints.

Method: The literature on “Metoo” movement against sexual harassment was retrieved and critically examined to determine the extent to which it supports the 4 defenses.

Conclusion: The 4 major defenses against #Metoo allegations are not tenable.

Introduction

The “Me too” movement against sexual harassment and sexual assault, mainly at work place, started 12 years ago. It has taken off in a big way in the past 2 years as a hashtag on the social media after several women celebrities, from the film industry, accused Hollywood director Harvey Weinstein of sexually inappropriate behavior. ¹ Thereafter, it spread to different countries around the world, in different languages and with different names. The reactions to the “Me too” movement have been varied. Four major defenses to the accusations have come to limelight. First, the alleged sexual behavior was “consensual”; second, the behavior was seemingly “normal”; third, “complaint without proof has no meaning”; and fourth, the complaint of sexual misconduct was made after several years. The current evidence in support of the defenses is examined.

Consensual Sex

There are many instances wherein the plea of “consensual” sex was taken by the alleged predators. Sachin Garg, a writer, was accused by an anonymous woman of sexual harassment. He stated that he believed that the encounter was consensual and apologized for having caused hurt. ² Social taboo exists for sex outside marriage, whether consensual or nonconsensual; so, the defense of “consensual” sex would not stand.

Within marriage, until recently, adultery was a crime under IPC 497. The Supreme Court struck it off because it treated women as chattel, as only sexual intercourse by a man with a wife of another man without the consent or connivance of that man was adultery. Supreme Court ruled that IPC 497 is unconstitutional as it violates the fundamental rights of a woman to equality under Articles 14 and 15, and of her right to life and to live with dignity under Article 21 of the Constitution. ³ Nevertheless, voluntary sexual intercourse by a married person with any person, other than his or her spouse (anywhere including work place, whether consensual or nonconsensual), continues to be a civil wrong, and thus a ground for divorce in major marriages laws of the country.^4-6

Legislative measures to combat sexual misconduct at work place need mention. The Criminal Law (Amendment) Act, 2013 ⁷ has spelled out punishments for sexual harassment at work place, ranging from physical contact and advances, and making sexually colored remarks (IPC 354-A), to assault or use of criminal force to disrobe (IPC 354-B), which attract punishments ranging from 1 to 3 years of imprisonment and/or fine. Sexual intercourse (includes consensual sexual intercourse) by a person in authority attracts a punishment of 5 to 10 years rigorous imprisonment and/or fine (IPC 397-C). It may be difficult to ascertain whether sexual behavior at work place is consensual. While the man may take absence of refusal or silence on the part of the woman as implied consent, this may often not be true as the woman may have her own fears or inhibitions.

There is no legislation on live-in relationships in the country, but a recent landmark judgement by Justice C.S. Karnan from the Chennai High Court ⁸ on premarital sexual relationship is noteworthy:

If a man and a woman of marriageable age have a sexual relationship and the woman becomes pregnant, the couple will be treated as a husband and wife. Even when there is no pregnancy, but strong documentary proof of sexual relationship, the couple will still be treated as married. If…the couple decides to separate, the husband can only marry another woman after a decree of divorce from the wife.

Thus, only consensual sexual relationships at work place, with no legal bar to marriage, could be treated as marriage. All others, where there is the legal bar to marriage (being underage or already married), would have to be dealt with the existing legal provisions.

The case of Rohit Shekhar v. ND Tiwari ⁹ is interesting. The relationship was consensual to start with and Tiwari fathered a son. However, Tiwari did not marry Rohit’s mother as agreed upon and also withdrew himself from the scene. This adversely affected the mother and son. The latter filed a petition in the court.

Behavior as “Normal”

Men have also responded to the #Metoo movement by stating, “Shaking hands, hugging, kissing on the shoulder, etc., are perfectly normal in today’s world. These women are pretending to be ‘Holy’.” In this regard Justice J.S. Verma Report states that “In determining whether the behaviour or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant.” ¹⁰

Complaint Without Proof Has No Meaning

The proof may not be immediately available or apparent. However, without a complaint no effort would be made to find the same. Moreover, in many cases, proof can be unearthed even after several years. A good example is rape. The biological father of a child, who was conceived after the former had sexual intercourse with his mother can be identified by DNA testing as was done in the case of Rohit Shekhar v. ND Tiwari. ⁹

Long Delay in Making Complaint

The fourth defense has been of long delay in filing of complaints. In the case of Brett Kavanaugh, a nominee for Supreme Court Judge in US, complaints were made by 4 women after long periods, up to 36 years. ¹¹ In India, Director Vinta Nanda, in a detailed Facebook post, alleged that actor Alok Nath raped her more than once 19 years ago and also lodged a police complaint against him. ² Actress Tanushree Dutta ² alleged that actor Nana Patekar had indulged in inappropriate behavior with her almost 10 years ago. In the case of Rohit Shekhar v. ND Tiwiri, ⁹ the complaint was lodged after 27 years. It can be argued that it would be virtually impossible to prove the charges against the accused after such long periods, which is necessary if any action has to be taken. Besides, in criminal cases there is a limitation period after which cases are not admitted. Under section 468 of the code of criminal procedure (CrPC), any offence, including child abuse, the complaint has to be reported within 3 years of the incident. ¹² However, courts have the power to extend the limitation period. The Rohit Shekhar v. ND Tiwari case was admitted, despite the long period of 27 years. Recently, Union Ministry of Law and Justice ratified a proposal made by the Ministry of Women and Child Development to scrap the age limit for reporting cases of child sexual abuse. ¹³ Thus, it goes that the truth can be revealed any time.

Whether the allegation is to be believed or not would depend on how it is told, credibility of the person who tells it, and the available witnesses or evidence, if any. Even in the courts, 100% evidence is usually not available and courts follow the principal of probability. The bar is higher in the case of criminal cases. Whether any action is to be taken would depend on the impact or significance of the event. Sometimes, accusations have been ignored, while at other times definite action was taken. Many organizations have instituted inquires, while others have taken definite action against the complaints. In the case of Brett Kavanaugh, ¹⁴ despite Ford’s testimony, the Senate Panel approved Kavanaugh’s nomination, but asked for the Federal Bureau of Investigation (FBI) to conduct a full further inquiry. After a “clean chit” was submitted by the FBI and accepted by the White House, the full Senate voted on Kavanaugh’s appointment to the US top Court. Indian Film and Television Directors’ Association issued a notice to Alok Nath to respond to the allegation. ² In the case of Rohit Shekhar v. ND Tiwari, the judgment was passed in favor of Rohit Shekhar. DNA test was ordered; police assistance and use of reasonable force was also allowed. ⁹

It is important to state that even when no formal action is taken, people may react if they believe the allegation to be true and this can influence the future of both the accuser and the accused. This can be termed as “natural justice.”

Last, but not least, if a charge is not proved, it does not prove the accused innocent. According to the law of probability, there is still 50% chance that it is true. This deserves consideration while appointing people, against whom there are major accusations, to sensitive positions.

Thus, it may be concluded that neither of the defenses—consensual sexual behavior, behavior as normal, complaint without any proof has no meaning, or long delays in making accusations—are socially or legally tenable, and so should not belittle the purpose of the “#Metoo” movement.