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India’s #MeToo: What are the Legal Options for the Survivors Now?

With a slew of women in the entertainment, media and academic sector outing men who have sexually harassed them in the past, India has finally reached its #MeToo moment. Just like Rome, India’s #MeToo movement was not built in a day. It took years and several women to come out about their individual traumas that finally led to the watershed. In the course of the past week, several men in powerful positions have been named by women (and men) across the spectrum of committing acts of sexual harassment and general abuses of power in that were rooted in sexism in misogyny.

While the accusations have largely been on social media, the real battle is yet to begin and it will not be fought on social media but in courtrooms. After the initial phase of naming and shaming, a movement with the magnitude of #MeToo has to reach certain conclusions, in this case, holding the accused accountable for their acts. Here in lies the tricky part. What constitutes accountability? And what constitutes harassment? If a victim has accused someone in a position of power of past abuse, what are the legal recourse available to them?
It was to answer these questions that some lawyers have now decided to offer pro bono services and consultations to all those who are claiming to be victims under the #MeToo movement. “It is important to define the legal route available to women who are coming out with their accusations right now. These are women who have named some powerful people and they, in turn, need to be armed with legal firepower to make sure they get the right protection and remedy,” lawyer Karuna Nundy told News18.
She stressed that in such cases, the threat of defamation from a powerful man is a big one. What can a woman who has recently outed her harasser on social media legally do to ensure justice?

Nundy said that there are three options for a victim in that position to proactively seek justice – they could either seek a criminal remedy, depending on the degree of the transgression. They could seek a civil remedy or such as firing from a position or compensation. However, she stressed that the accuser and accused nees to be able to be heard, and fairly – if a job or liberty is at stake.

“If the sexual assault was damaging to the victim, they can file a criminal complaint and they are entitled to getting prosecution,” Nundy said. She added that in such a case, the onus of proving the charge of allegation fell on the investigating authority such as police and on the State prosecutors, though its very helpful to have survivors’ lawyers present..

The lawyer who has represented a slew of women in rape and sexual harassment cases and advised companies and media orhanisations on policies, said that not all victims were eligible for, or wanted to pursue criminal remedies. In such cases, civil remedies such as employment termination or financial compensation may be options.

However, Nundy also added that in case of a defamation charge, having a good lawyer was very important. In fact, she and a number of other lawyers from across India have started pooling their names and tagging themselves on Twitter as volunteer lawyers who are ready to offer consultations, connect victims to relevant lawyers or bodies and provide general legal counseling and services to help those who are coming out against their harassers.

And she isn’t the only one. A number of lawyers from across India have responded to calls on social media and offered their services. According to Delhi based lawyer Veera Mahauli, the #MeToo movement grew out of a mistrust for authorities. But now the cat is out of the bag, victims needed to know the options ahead of them.

“I realised that some victims might be grappling with a lot of legal questions. It is not easy for a lay person to understand all the legalities. So, I tried to organise a collective legal effort, where people can reach out to the legal community for any concerns they might have,” Mahauli, 25, and a former student of NALSAR Hyderabad, said.

She and a handful of others on social media are trying to connect people to lawyers and legal consultants and several lawyers including Nishant Gambhir have offered up their services. Apart from legal counsel on what actions a victim can take, consultants and lawyers were also important to explain the meaning of sexual harassment and what constitutes as a punishable offence in a court of law. According to Tahini Sharma, who has been campaigning for support from Noida, said that it was important to create a legal safe-space for survivors of harassment, some of whom may just need a strong support community to reveal suppressed trauma.

“A legal consultant or lawyer could also help victims collect evidence if any, and work toward forming a strong legal case, if they wish to pursue the accused in court,” Tahini said. Permissible evidence in such cases usually includes witnesses, images, screenshots of illicit text-messages etc. In some cases, secondary evidence such as messages sent to a friend or associate by the victim describing the allegations at a contemporaneous time.

However, all lawyers agreed that the nature of sexual harassment was such that one rule cannot fit all cases. As the cases each differ from each other in terms of damage and intensity, the legal remedy for the victims must also be case-specific.

“A victim who gets slapped with a defamation charge may not want to further engage in the battle and may settle for an out of court settlement. But if they do, the best thing to do would be to respond. That’s where lawyers come in,” Rutuja Shinde said. She stressed that legal involvement was not just necessary to ensure individual justice but also to the wider success of the movement.

“This is just the beginning, the real battle has to be won in courts. The end goal is to take a second look at what constitutes as sexual harassment at the workplace in the year 2018 and amend laws such as POSH and Vishakha guidelines accordingly,” said Rutuja.

As Nundy said, in cases of sexual violence and harassment, there is no line like the bottom line. The legal impetus will force organisations to relook at their harassment policies and revamp their dormant or non-existent Internal Complaints Committees. It is only when organisations that have shielded abusers are held accountable along with the abuser can harassement at the workplace truly end.

In the last week, scores of women came out with accusations against men in powerful positions in the country, including senior journalists and editors from across the media spectrum. Following allegations, Prashant Jha stepped down from his post of Bureau Chief in Hindustan Times while others have issued apologies or statements of denial. Actors such as Nana Patekar, Alok Nath and others have been named. Film director Vikas Bahl has been named by several women.

Note: #MeTooSupportGroup is a open document that is being curated in real time on social media. If you or someone you may know is a victim of sexual harassment, feel free to use this resource to find the necessary help required.

Updated: October 9, 2018 — 7:13 pm
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