Unreasonable doubt

Critics of online ‘lists’ naming alleged sexual harassers as violating due process do not take into account the failures of the legal system.

Written by Mukta Joshi | Updated: May 7, 2018 12:37:05 am

Until bias against victims of sexual violence is eliminated and due process continues to be riddled with hurdles, such Lists will remain a fair recourse to us.

In the first major trial conducted on the heels of countless accusations and the #metoo movement, Bill Cosby was convicted by a US court late last month for aggravated sexual assault. Closer to home, in February 2018, Lawrence Liang, a renowned academician, and alumnus of NLSIU, Bangalore was found guilty of sexual harassment by the Internal Complaints Committee of Ambedkar University, Delhi. Not long ago, his name had featured on the “List of Sexual Harassers in Academia” that had been circulating on Facebook. While this came as an “aha!” moment for those who’d been in support of the List since the beginning — I know of many who were saddened. Liang’s place on the List had been reason enough for many friends and fellow students to disregard its legitimacy. This wasn’t the only reason why the List had been condemned — many took objection with the idea of a public list itself, and there were pleas for some semblance of “due process” to be maintained.

Most seasoned feminist critics were quick to distinguish between the “due process” they expected should be employed before a perpetrator was publicly shamed, and “procedure established by law”. Due process refers to formal proceedings conducted at an institutional level, in accordance with not only the principles of natural justice but also the rules laid down and applied by an institution. In the context of sexual harassment in academic spaces, it would refer to an Internal Complaints Committee (ICC), set up in accordance with the Vishaka Guidelines of 1997 and the Sexual Harassment of Women at the Workplace Act, 2013. While “due process” finds roots in our Constitution — which provides that no person shall be deprived of their life nor their liberty except by procedure established by law — the two ought not to be conflated.

An insistence that a victim of sexual violence should seek legal recourse is unreasonable to say the least — our legal history shows that the judiciary has time and again failed women who chose to complain of sexual violence. We need to look no further than the Delhi High Court in 2017 in Mahmood Farooqui’s case, when it held while acquitting him of #rape, that “a feeble no may mean yes.” The Supreme Court upheld this acquittal. In 1995, a trial court in Rajasthan acquitted five upper-caste men who gang-raped a Dalit woman, on the grounds that it was inconceivable that they would even touch a Dalit, let alone rape her.

The rules that govern ICCs take the shortcomings of criminal trials into account and are usually framed accordingly. The Saksham Committee guidelines and a Rajya Sabha Standing Committee Report made very clear that ICCs shouldn’t use the “beyond reasonable doubt” standard of proof. It would seem by virtue of this lowered standard that justice would be more accessible to victims. However, it has been observed repeatedly that ICCs continue to apply it.

What also must be looked into are the factors that play a role in a committee arriving at its decision. One major factor is the unconscious and subconscious biases operating in the minds of committee members. Stereotypes create bias even in the absence of intent. Bias colours each fact perceived by a decision-maker about a member of a stereotyped group (in this case, a victim of sexual violence), making it impossible to separate its impact from the final decision.

Women who complain of harassment have historically been viewed as being promiscuous and having asked for it. In academic spaces which are exclusionary, they tend to shy away from speaking out and thus, when they do speak out, tend to be seen as oversensitive or as having malicious intent. These stereotypes of women are therefore bound to affect how their testimonies and facts are perceived by ICCs if a trial does take place. This is along with the stigma that prevents women from complaining in the first place — the men who harass them are usually in positions of power, and women who complain usually have more to lose by complaining than they do by remaining silent. Thus, justice through “due process” for women will remain a pipe dream, until prejudice against them is eliminated. There is no doubt, however, that ICCs remain a victim’s best bet if she seeks formal recourse.

Neither the maker of the list nor the defenders of it ever argued that the list was meant to secure justice for victims or serve as an alternative to due process. On the contrary, it has been argued that the list is “an extension of a ‘whisper network’ — an informal way of communication among women in a certain social context, warning each other about certain sexual predators,” similar to a senior student telling a junior to keep her distance from a certain professor, in the interests of her own safety. Note that “innocent until proven guilty”, a maxim applicable to criminal trials simply does not apply to a Facebook post, which leads to no criminal consequences. In the patriarchal structures that leave no option but for such networks to foster as a survival mechanism, the List of Sexual Harassers in Academia was only a beginning. Until bias against victims of sexual violence is eliminated and due process continues to be riddled with hurdles, such Lists will remain a fair recourse to us.

The writer, 21, is a fourth-year student at the National Law School of India University, Bengaluru

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