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Anti-Sexual Harassment Rules in India and USA – A Comparative Analysis

Trump and Tarun Tejpal

Women, all over the world, specially in India have been the unfortunate victim of patriarchal society which has harbored a culture of violence against women. It might be in the shape of customs and norms like female infanticide, Sati, domestic violence, dowry and marital rape. The lives of women have become more subjugated and restricted over the years in our country. A very large number of women in India are still denied education and dignity of life. In sexual harassment cases, harassment may lead to temporary or prolonged stress or depression depending on the victim’s psychological abilities to cope, type of harassment and lack of social support. Psychologists and social workers report that severe or chronic sexual harassment can have the same psychological effects as rape or sexual assault. Victims who do not submit to harassment may also experience various forms of retaliation, including isolation and bullying.

Child Rape and Sexual harassment

As an overall social and economic effect every year, sexual harassment deprives women from active social and economic participation and costs hundreds of millions of dollars in lost educational and professional opportunities.

There are many laws and rules against sexual harassment of women all over the world. In this article we will focus on the sexual harassment rules in India and USA.

In India protection against sexual harassment is available under various statutes and rules as follows:

1) Constitution of India

Indian Constitution is committed to end the inequality in the society and has laid down a number of provisions to ensure equality among men and women. Article 14 provides for equal protection of the law and equality before the law. Article 15 prohibits discrimination on certain grounds, while allowing for affirmative action and positive discrimination in certain cases. Article 15(3) also confers special protection for women. Article 16 prohibits discrimination on the ground of sex while providing for equal opportunity for both men and women with respect to public employment. The freedom to practice any profession or to carry on any business, occupation or trade has been laid down in Article 19(1) (g). Article 21 guarantees the citizens of India, the right to life and personal liberty while Article 23 protects against exploitation. The Directive Principles of State Policy also provides for gender equality.

2) Indian Penal Code

Section 354 (A): A man committing any physical contact, advances involving unwelcome and explicit sexual overtures; or demanding or requesting sexual favors; or showing pornography against the will of a woman; or making sexually colored remarks, shall be guilty of the offence of sexual harassment. (Punishment: Rigorous imprisonment for a term which may extend to three years)

Section 209: Obscene acts in any public place, singing obscene songs to the annoyance of others (Punishment: Imprisonment for a term of up to 3 months or fine, or both).

Section 509: Uttering any word or making any gesture intended to insult the modesty of a woman. (Punishment: Imprisonment for 1 year, or fine, or both.)

Sexual Harassment at The Workplace

3) The Sexual Harassment at The Workplace (Prevention, Prohibition and Redressal) Act, 2013

After the brutal gang rape of Bhanwari Devi, in 1997, the need for a specialized law on sexual harassment at workplace was brought to the forefront.

The Indian Penal Code, 1860 (IPC), which was the only existing law on this issue, covered criminal acts that ‘outrage the modesty’ of women. As a result of which, the narrow scope of the IPC became highly inadequate to prevent violence against women in the workplace.

In Vishaka v State of Rajasthan the Supreme Court for the very first time recognized and defined sexual harassment as sexually unwelcome behavior which includes demand for sexual favors, physical gestures and advances, display of pornography, sexually colored remarks and any other unwelcome verbal or nonverbal, physical behavior of sexual nature. While drafting these guidelines, the Court relied greatly on the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), to which India is a signatory.

The Vishaka Guidelines, as popularly known, are compulsory guidelines which involve a list of regulations to prevent harassment and redressal mechanisms for the victims. Most importantly, the Vishaka Guidelines have levied a compulsory duty on employers in both public as well as private sectors to protect their employees from sexual harassment at workplace. Employers now have an obligation to prohibit acts of sexual harassment and to conduct fair enquiries when sexual harassment cases are filed. The Guidelines also make it imperative for every organization to have a Complaint Committee in place, preferably headed by a woman and seek help of NGOs to ensure that the victim is not under pressure from senior employees. In order to create awareness about the rights of women, rules and laws prohibiting sexual harassment should be published, notified and circulated widely and penalties be imposed against perpetrators of such acts. These guidelines have proved to be quite effective in safeguarding against sexual harassment so far.

Under the Act, sexual harassment includes:

  1. a) Physical contact and advances (so, you can’t touch someone inappropriately and think I am innocent because, I didn’t rape)
  2. b) A demand or request for sexual favors
  3. c) Making sexually colored remarks (so, no sexist jokes or misogynist humor)
  4. d) Showing pornography
  5. e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Under the Act, the below five actions also count as sexual harassment:

  1. a) Implied or explicit promise of preferential treatment in her employment.
  2. b) Implied or explicit threat of detrimental treatment in her employment
  3. c) Implied or explicit threat about her present or future employment status
  4. d) Interference with her work or creating an intimidating or offensive work environment for her.
  5. e) Humiliating treatment likely to affect her health or safety.

4) The Indecent Representation of Women (Prohibition) Act (1987)

If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing ‘indecent representation of women’; they are liable for a minimum sentence of two years.

Protection Of Children From Sexual Offences

5) Protection Of Children From Sexual Offences Act (POSCO)

The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children.

The Act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault to be “aggravated” under certain circumstances, such as-

  1. When the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.
  2. The Act also casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, and bringing the matter in front of the CWC, should the need arise.
  3. The Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
  4. The Act further provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible. Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence. Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.

In spite of all these rules and regulations incidences of sexual harassment are increasing in the society. Laws alone cannot bring the change in this situation it needs behavioral changes on the part of individual, community, society and nation. Unless and until attitude of the Indian society to look towards women as an ‘inferior sex’ changes very stringent laws cannot stop sexual harassment at once. Today women are reporting such incidences without fear and pressure. They should not feel ashamed of it. More women from all the fields are coming out and raising their voice against sexual harassment. “Raya Sarkar List” published on social media is the most recent and positive move by a women to shame the perpetrators of sexual harassment.

Metoo

In October, 2017 a movement was started on social media with #metoo against famous Hollywood producer Harvey Weinstein for his sexual misconduct.  In less than 24 hours #metoo started trending on twitter with half a million re-tweets and numerous shares on facebook. This resulted into a chain reaction, women across the globe started raising their voices against sexual harassment and #metoo became a global campaign.

Rula-Jabreal-Harvey-Weinstein

Anti-Sexual Harassment Rules in United States of America

Though USA is a world super power and developed country crime rate against women is very high and increasing day by day. Department of States in USA gives clear definition of sexual harassment as follows-

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  1. An employment decision affecting that individual is made because the individual submitted to or rejected the unwelcome conduct; or
  2. The unwelcome conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or abusive work environment.
  3. Certain behaviors, such as conditioning promotions, awards, training or other job benefits upon acceptance of unwelcome actions of a sexual nature, are always wrong.
  4. Unwelcome actions such as the following are inappropriate and, depending on the circumstances, may in and of themselves meet the definition of sexual harassment or contribute to a hostile work environment:
  5. Sexual pranks, or repeated sexual teasing, jokes, or innuendo, in person or via e-mail;
  6. Verbal abuse of a sexual nature;
  7. Touching or grabbing of a sexual nature;
  8. Repeatedly standing too close to or brushing up against a person;
  9. Repeatedly asking a person to socialize during off-duty hours when the person has said no or has indicated he or she is not interested (supervisors in particular should be careful not to pressure their employees to socialize);
  10. Giving gifts or leaving objects that are sexually suggestive;
  11. Repeatedly making sexually suggestive gestures;
  12. Making or posting sexually demeaning or offensive pictures, cartoons or other materials in the workplace;
  13. Off-duty, unwelcome conduct of a sexual nature that affects the work environment.

A victim of sexual harassment can be a man or a woman. The victim can be of the same sex as the harasser. The harasser can be a supervisor, co-worker, other Department employee, or a non-employee who has a business relationship with the Department.

Sexual harassment cases, in the United States, are filed under Title VII of the Civil Rights Act of 1964, which protects against all kinds of discrimination at the workplace color, race, religion, national origin or sex. The Civil Rights Act of 1964 was implemented by the Equal Employment Opportunity Commission (EEOC) in 1965. As defined by the (EEOC), “It is unlawful to harass a person (an applicant or employee) because of that person’s sex.” Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Before 1991, ‘injunctive relief’ was the only kind of relief that was available to victims of discrimination to stop the discrimination or at least ensure they get backwages for unfair dismissal or denied promotion.The Civil Rights Act came into force in November 1991, which provided for compensation mechanisms for damages (both emotional and physical), the victims suffered as a result of discrimination. Also in 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action status paving the way for others. Seven years later, in 1998, through the same case, new precedents were established that increased the limits on the “Discovery” process in sexual harassment cases, which then allowed psychological injuries from the litigation process to be included in assessing damages awards.

However the federal courts refused in clear terms to consider workplace discrimination as a form of sexual harassment while interpreting the Civil Rights Act of 1964. However, in the case of Barnes v. Costle in 1977, it was held by the court that sexual solicitations and remarks, along with threats about dismissal fell within the ambit of sexual harassment within the Civil Rights Act of 1964. In Equal Employment Opportunity Commission (EEOC), in 1980, published “Guidelines on Discrimination Because Of Sex,” which gave recognition to sexual harassment as a type of workplace discrimination and therefore violated Title VII of the Civil Rights Act of 1964. The guidelines issued served to lay down certain criteria to recognize and determine sexual harassment at workplace-

These guidelines divided sexual harassment into two categories:

1) Quid pro quo harassment

And

2) Hostile environment harassment.

The former is an act of harassment which involves denial of sexual favours leading to unfair dismissal from work, unpaid wages and blocked promotion, while the latter involves inappropriate physical or sexual gestures, including demand for sexual favours and other kinds of sexual conducts that severely affects the employee’s working ability. Vinson v. Meritor Bank recognized hostile environment harassment as a category of workplace discrimination under the Civil Rights Act of 1964.

USA provides for stricter laws and even stricter implementation. There also women are coming out andspeaking against sexual harassment. Recent case of sexual harassment against famous Hollywoodfigures such as Harvey Weinstein, Kevin Spacey is one such example. FromAngelina Jolie, Gwyneth Paltrow to Emma Watson many Hollywood stars have accused them of sexual harassment. “me too” movement on social media also helped women all over the world to raise voice against such incidences.

With all the laws and regulations that we have to back ourselves still there is need to do a lot more things to stop sexual harassment. It needs collective action. Though individual victim will have to fight under the situation it is the responsibility of the family, friends, teachers and ultimately whole society to create safe and secure environment. Words have the power to change our reality. With more and more awareness and fearless stands taken up by women and men in the society we can curb this menace.

 

About the Author: Muktai Bhagwat, Advocate & Legal Expert, Pune (India)

 

REFERENCES:

  1. Constitution Of India
  2. Indian Penal Code
  3. The Sexual Harassment at The Workplace (Prevention, Prohibition and Redressal) Act, 2013
  4. The Indecent Representation of Women (Prohibition) Act (1987)
  5. Protection Of Children From Sexual Offences Act (POSCO)
  6. Civil Rights Act of 1964 of USA.
  7. Vishaka and others V. State of Rajasthan and others. (AIR 1997 SUPREME COURT 3011)
  8. Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993)
  9. Paulette L. Barnes, Appellant, v. Douglas M. Costle, Administrator of the Environmentalprotection Agency, 561 F.2d 983 (D.C. Cir. 1977)
  10. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
  11. http://arpan.org.in/protection-of-children-from-sexual-offences-act-pocso
  12. https://www.iitk.ac.in/wc/data/Handbook.pdf
  13. http://jurip.org/wp-content/uploads/2017/01/Eshika-Maji.pdf