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Time’s up for due process: can women rely on justice systems?

The MeToo movement has become a watershed moment of the fourth wave of feminism and now, it’s a feminist canon for having empowered millions of women. One of the many things to come out of the movement is the crowdsourced lists of sexual predators that helped women to speak out and combat the pervasive culture of abuse and harassment.

It started with the Shitty Media Men list and India’s own home-grown lists of sexual harassers in academia (LoSHA, short for List of Sexual Harassers in Academia) that was posted by law student Raya Sarkar last October. Featuring some big names from academia who were, for the most part, seen as left-wing and progressive, the list managed to polarize supporters and detractors to extremes. The words “list” and “due process” themselves became loaded controversial terms. Subsequent lists soon followed but were quickly taken down by their creators.

One of the most prominent names in LoSHA was Lawrence Liang, a famous lawyer and the dean of Ambedkar University Delhi’s School of Law, Governance and Citizenship. In perhaps the biggest indictment of the failure of due process in academia, he was found guilty by AUD’s internal committee of sexually harassing a PhD student from another university.

But the bizarre ruling limited his punishment to simply being stripped of his administrative duties. Liang is still allowed to teach, interact with female students, and wield positions of power. Due process, in this case, has been reduced to further trauma for the victim and a mild slap on the wrist for the harasser.

Women can’t rely on ‘due processes’ alone

Even with its many limitations, due process forms the epicenter of the backlash against MeToo, with claims that the movement bypasses and undermines it.

Now, due process means going through specified channels and mechanisms that have been socially sanctioned, legislated, and approved by authorities. It can be the sexual-harassment and rape legislation brought about by governments, or the internal complaints committees (ICCs) required by Indian law to deal with cases that occur in workplaces. Anything outside these legal and quasi-legal frameworks is deemed equivalent to rudimentary “kangaroo courts” that ought to be disavowed and dismissed.

The fallacy of this entire argument is that it places undue importance and unearned faith in a system that has, time and again, failed many women and marginalized groups.

The fallacy of this entire argument is that it places undue importance and unearned faith in a system that has, time and again, failed many women and marginalized groups

On one hand, we are repeatedly told about the inadequacies of India’s criminal justice system, the pitfalls of a carceral state, the creaking and overwhelmed courts of law, the underpaid, overworked and (for the most part) racist police force, and laws that are antediluvian, biased and obsolete. Why then are we expected to champion this same system for crimes against women?

When oppressed communities – Dalits, Muslims, transgenders – refuse to trust the existing criminal justice system, most progressive people are at least sympathetic to their hostility. But when it comes to women, it is demanded of us that we abandon our legitimate suspicions of procedural justice and dump our informal networks of solidarity to bow down to the mythical creature called “due process.”

It is easily forgotten that like all oppressive structures, the language of the law is the language of the Father, and is therefore inherently biased against the experiences of women. What counts as acceptable male behavior is based on a male understanding of social norms. Consequently, laws on sexual assault and harassment are informed by this male worldview.

Sure, many of these laws exist thanks to the untiring activism of feminists. But at best, women are allowed to agitate, advise, contribute, maybe even permitted a few seats at the table, but it’s men who remain the ultimate architects, arbiters and approvers, and giving such importance to a system that is dictated by them is willful ignorance.

As pointed out by feminists, especially American activist and academic Catharine MacKinnon, rape and sexual harassment cannot be legislated away because they are an inevitable, direct product of a society that is patriarchal, deeply misogynistic, unequal and apathetic. If the same laws and system haven’t been able to uproot racism, casteism, Islamophobia, homophobia and transphobia from our societies, then why should the outcome be any different for sexism?

Justice via due process is long due

A simple Internet search on sexual harassment throws up multiple examples wherein, even after due process was followed, the abuser got away scot-free, or, at worst, was forced to resign from his job (but soon enough, got gainfully employed elsewhere). Lawrence Liang, the aforementioned luminary of the sexual-violence hall of fame, is a perfect example of this. Though he’s a repeat sexual offender, he is yet to suffer any material damage for his behavior.

Despite the lack of evidence that false accusations of sexual harassment are rife and the abysmally low rate of reporting of such crimes, the first reaction of most people to complaints of sexual harassment is one of disbelief or victim-blaming.

The disbelief morphs into fierce defense when the alleged perpetrator is known to people. They are unable to comprehend the fact that a man might be a friend to you and yet be a predator to someone else. They expect consistent “criminal-like” behavior from harassers, forgetting that these are the same people who are experts in “gaslighting” their victims into questioning their own perception and sanity.

So, obviously, the fault lies with the women who are untrustworthy, vindictive beings, hell-bent on maligning innocent men, cunning enough to conspire with other women to take them down, but clearly not smart enough to get equal pay. And if they dare seek recourse outside the ambit of legal channels, they are probably dangerous as well.

The environment is actually so toxic that the odds of fair treatment – forget any semblance of justice – is extremely low. I am surprised there are women brave enough even to take the risk of coming forward.

Even for those who choose to lodge formal complaints, defenders of due process will extend their support unless the accused is one of their own. And if the verdict goes against him, the same judgment is deemed “interim” through artful misinterpretation of the law and is subject to be appealed into a more favorable outcome. Selective application of lofty principles is not just limited to right-wingers; the left is very good at it too.

What the closing of ranks around Liang acutely demonstrates is that Indian society still values the feelings and the presumed innocence of men way more than the lived experiences and documented evidence of harassment faced by women.

The burdens of protecting ourselves, protecting men and their untouchable reputations, along with reforming and restructuring our justice systems have mysteriously fallen upon only the “weaker” sex. Due process is another burden that women are expected to suffer through while men are treated with kid gloves – why are we still, then, surprised that such lists exist?

The oppressed always come up with their own ways to amplify their voices; these lists are but one manifestation of that.

Note: This is the first of a two-part series on sexual harassment.

The author would like to acknowledge Sabina Yasmin Rahman for her contribution to this article.


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