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Sexual Harassment

Sexual harassment is a form of discrimination that includes gender harassment (verbal and nonverbal behaviors that convey hostility to, objectification of, exclusion of, or second-class status about members of one gender), unwanted sexual attention (verbally or physically unwelcome sexual advances, which can include assault), and sexual coercion (when favorable professional or educational treatment is conditioned on sexual activity).

Over the past 30 years, the incidence of sexual harassment in different industries has held steady, yet now more women are in the workforce and in academia, and in the fields of science, engineering, and medicine (as students and faculty), and so more women are experiencing sexual harassment as they work and learn.

Sexual harassment is any form of unwelcome sexual behaviour thats offensive, humiliating or intimidating. Most importantly, its against the law. Being sexually harassed affects people in different ways. If youre experiencing harassment, there are many things you can do about it.

This can help if:

  • you want to know more about sexual harassment
  • youre being sexually harassed
  • you want to know what you can do if you're being sexually harassed.

What is sexual harassment?
Sexual harassment is unwelcome sexual behaviour thats offensive, humiliating or intimidating. It can be written, verbal or physical, and can happen in person or online.
Both men and women can be the victims of sexual harassment. When it happens at work, school or uni, it may amount to sex discrimination.

What does it include?
Sexual harassment can include someone:

  • touching, grabbing or making other physical contact with you without your consent
  • making comments to you that have a sexual meaning
  • asking you for sex or sexual favours
  • leering and staring at you
  • displaying rude and offensive material so that you or others can see it
  • making sexual gestures or suggestive body movements towards you
  • cracking sexual jokes and comments around or to you
  • questioning you about your sex life
  • insulting you with sexual comments
  • committing a criminal offence against you, such as making an obscene phone call, indecently exposing themselves or sexually assaulting you.

When does sexual harassment become sexual assault?

If someone is sexually harassing you in a way that causes you to feel humiliation, pain, fear or intimidation, then this can be considered sexual assault. If you believe youve been sexually assaulted, you may want to find out more about what this means as well as the support options available to you.

How sexual harassment can affect you. If youre being sexually harassed, you might:

  • feel stressed, anxious or depressed
  • withdraw from social situations
  • lose confidence and self-esteem
  • have physical symptoms of stress, such as headaches, backaches or sleep problems
  • be less productive and unable to concentrate.

What can you do?

No one deserves, or asks, to be sexually harassed. Everyone has the right to work and live in an environment thats free from harassment, bullying, discrimination and violence. Sexual harassment is illegal (under the Sex Discrimination Act 1984).

Here are some things you can do:
Talk to the offender
You can try resolving the situation quickly yourself by explaining to the person who is harassing you that their behaviour is unwanted.

Be informed
If youre being harassed at work, school or uni, find out what their policies and procedures are for preventing and handling sexual harassment.

Keep a diary
Document everything that happens, including when it occurred, the names of any people who saw what happened, and what you've done to try to stop it.

Save any evidence
Keep text messages, social media comments, notes and emails. This evidence can help if you make a complaint.

Get external information and advice
For work situations, check Lawstuff to find the union representing your industry. They can give you advice on your options and your rights. Someone can also act on your behalf if you don't feel comfortable pursuing the issue alone. They should respect your confidentiality. If youre concerned about this, ask them what their official privacy policy is.

Tell someone
Sexual harassment isnt something you need to deal with on your own. In the workplace, it might be worth talking to your HR manager, who will be able to help you decide what to do. You might also want to talk to a trusted friend or family member about what's going on.

Me Too movement:
The Me Too movement (or #MeToo movement), with a large variety of local and international related names, is a movement against sexual harassment and sexual assault.[1][2][3] The phrase "Me Too" was initially used in this context on social media in 2006, on Myspace, by sexual harassment survivor and activist Tarana Burke.[4]

Similar to other social justice and empowerment movements based upon breaking silence, the purpose of "Me Too", as initially voiced by Burke as well as those who later adopted the tactic, is to empower women through empathy and strength in numbers, especially young and vulnerable women, by visibly demonstrating how many women have survived sexual assault and harassment, especially in the workplace.[4][5][6]

Following the exposure of the widespread sexual-abuse allegations against Harvey Weinstein in early October 2017,[7][8] the movement began to spread virally as a hashtag on social media.[6][9][10] On Oct 15, 2017, American actress Alyssa Milano posted on Twitter, If all the women who have ever been sexually harassed or assaulted wrote Me too. as a status, then we give people a sense of the magnitude of the problem, saying that she got the idea from a friend. A number of high-profile posts and responses from American celebrities Gwyneth Paltrow, Ashley Judd, Jennifer Lawrence,[17] and Uma Thurman, among others, soon followed.

Widespread media coverage and discussion of sexual harassment, particularly in Hollywood, led to high-profile firings, as well as criticism and backlash.

After millions of people started using the phrase and hashtag in this manner, it spread to dozens of other languages. The scope has become somewhat broader with this expansion, however, and Burke has more recently referred to it as an international movement for justice for marginalized people in marginalized communities.

Landmark Case
Tukaram and Another v. State of Maharashtra (Mathura Rape Case)

The infamous case of Tukaram and Another v. State of Maharashtra, more commonly known as the Mathura Rape Case, sparked off vehemence and uncurbed conflicts, leading to radical changes in the sphere of rape laws governing India. This case witnessed the problem of custodial rape of a young girl named Mathura. The Judgment of this case delivered by Justice Jaswant Singh, Kailasam and Koshal were highly condemned and criticized for it is logical, legal and linguistic fallacies along with its ambiguous and sexist tone.

This case gained widespread recognition after four distinguished professors:

  1. Upendra Baxi
  2. Raghunath Kelkar
  3. Lotika Sarkar, and
  4. Vasudha Dhagamwar

Wrote an open letter to the Chief Justice of India to have the case reheard.[1]

Mathura, a young orphan, lived with her brother Gama. She worked as a laborer at the house of Nushi. During the course of employment, she developed sexual relations with Ashok, the son of Nushis sister. Thereafter, they decided to get married. On the basis of a report filed by Gama on March 26, 1972, stating that Mathura had been kidnapped, all the concerned parties including Ashok, Nushi and other relatives were brought before the police station.

After their statements were recorded, everyone began walking out at about 10:30 pm. The first appellant Ganpat asked Mathura to wait inside the police station. After closing the doors and turning off the lights inside, he took her up to the washroom and raped her in spite of her resisting.

After he was done, the second appellant Tukaram came and fondled with her private parts. He tried to rape her too but failed, as he was heavily intoxicated.

After being reunited with her family and friends, Mathura narrated this incident to them. On being medically examined it was asserted that Mathura was between the age of 14-16 years and her hymen revealed old ruptures but there was no injury on her body.

She was examined by Dr. Shastrakar on March 27, on whose advice an FIR for the same was filed. After a long battle, The Supreme Court acquitted the appellants in 1979.

Sessions Judge
The Sessions Judge acquitted the accused, as he believed that this was not a case of rape but one of consensual sexual intercourse. The perversity of his logic is evident when he implies that Mathura being habitual to sex might have invited Ganpat to satisfy her sexual needs and thus her consent was voluntary.

He further used this line of argument to justify the presence of semen on her clothes to have come from her act of having sexual intercourse with some person other than Ganpat.

By this statement, the Judge is implying that Mathura was so eager that she had sexual intercourse with someone between the hours of this incident and her medical examination.

However, in justifying the semen on Ganpats clothes he said it was due to nightly discharges. It is enigmatic as to why the Court had such double standards based on gender roles.
As per Section 375(6) of the Indian Penal Code, sexual intercourse with a woman below the age of 16 whether with or without her consent qualifies as rape.[2]

Even after Dr. Shastrakar presented evidence that Mathura was between the ages of 14-16, the Sessions Judge held that the evidence determining Mathuras age was inadequate.
He further held that in order to sound virtuous before Ashok Mathura fabricated a story of being raped. The sexist tone in this judgment is startling as the Judge assigns a specific role to Mathura by implying that she needs to concoct a story in order to prove her chastity to her lover. In his words Mathura was a shocking liar whose testimony was riddled with falsehood and improbabilities.

Bombay High Court
The Bombay High Court rightly distinguished between passive submission and consent. It held that since the accused were strangers to Mathura and her brother had just filed a case in the same police station, the chances of her making advances on them was highly improbable.

Further, they were in a position of authority and any resistance to them could prove detrimental to her or her brother.

This is a clear case of passive submission caused by the threat of injury. The fact that the constables confined her to the police station along with her act of instantly narrating the incident to her family shows a clear lack of consent.

The Court again rightly held that the absence of semen on the vaginal smears and pubic hair was because of the fact that she was examined 20 hours after the incident and it is presumably for her to have taken a shower in the meantime.

Although the High Court rightly convicted the accused there were some parts of the judgment that were paradoxical.

  • Firstly, the Court agreed with the Sessions Judge on the account of Mathuras age. If both the Courts were confident that Dr. Shastrakars examination was incorrect then why didnt they direct any further examination into her age?
  • Secondly, while quashing the acquittal of the accused, the High Court stated that these two gentlemen were absolute strangers to Mathura and it is extremely unlikely that shed approach them to satisfy her sexual needs. It is perplexing that while convicting the accused for rape, this Court has referred to them as gentlemen.

Supreme Court
Finally in 1979, the Supreme Court overturned the conviction of the High Court and acquitted the accused. The Supreme Court agreed with the Sessions Judge that this was a case of consensual sexual intercourse. On this point the Supreme Court further added that since no marks of injury were found on Mathuras body there was no resistance on her part and since she did not raise an alarm for help she consented to sex.

  1. Firstly, it is astonishing that this Court has equated the lack of resistance to consent.
    Even if Mathura tried to resist she would be powerless in front of two well-built, strong constables and thus impossible for marks of injury to be carved onto her body.

    While the Court read into Section 375(3) of the IPC to hold that her consent was not obtained by putting her in fear as she didnt object when she was taken away from her family, it excluded Section 375(2), which states that rape is sexual intercourse with a woman without her consent.[3]
  2. Secondly, it is questionable as to how the Courts are certain that Mathura did not shout for help.

The doors were locked all throughout when Ganpat took Mathura up to the washroom to rape her.

Even if she did cry out for help, its very likely that she might not have been heard. At this stage, it is pertinent to question this Court as to what their judgment would be if the victim in this case were verbally handicap?
The Supreme Court further agreed with the Sessions Judge that Mathura was habitual to sex and this entire story was concocted to sound virtuous in front of Ashok.
In this regard, two fallacies commonly used in English language have been committed, Argumentum ad Hominem and Hasty Generalization.

This essentially means that rather than deciding this case on it merits, the Court constantly attacked the character of the victim and came to conclusions without any link to its premise.[4]
It believed that Mathura was so promiscuous that she could not let go of any chance of having sexual intercourse even when her sibling Gama, employer Nushi and beloved Ashok were waiting for her right outside the police station.

Mathuras mistake to point out the exact appellant who had raped her further worked against her because the Court stated that if she could go against her initial testimony by changing the accused from Tukaram to Ganpat, it was possible that she had lied about everything else too.

No regard was paid to the fact that these men were strangers to her and she had never seen them before this incident or that it might be difficult for her to see their faces clearly as the lights were switched off.

The fact is Tukaram remained a spectator while Ganpat was raping her as though it was a pornographic film or that he was drunk on duty was also considered extraneous in deciding the fate of this young girl.[5]

The Supreme Court acquitted both the accused stating that this alleged intercourse was a peaceful affair.

This case stirred up great passions and resentment amongst people in the society. A law more sensitive to the feelings of the victims had to be drafted, that protected their human rights and dignity.

This resulted in the Criminal Law Amendment Act being passed in 1983. This act amended Section 114(A) of the Indian Evidence Act, which stated that if the victim does not consent to sexual intercourse then the Court would presume that she did not consent [6].

Section 376 of the IPC was also amended, making custodial rape an offense punishable with not less than 7 years imprisonment. This section shifted the burden of proof from the victim to the offender, once sexual intercourse is established.[7]

The amendment also banned publication of victims identities and held that rape trials should be conducted as in-camera proceedings.

Even though the Parliament has amended rape laws in order to serve justice, judicial interpretation of these laws has done the exact opposite.

While there are several judgments post the 1983 Amendment Act that have been successful in serving justice to the victims, there are still an equal number that are perversely drafted like the Mathura Rape Case.

Even though rape laws in India have been reformed over time, the occurrences of rape keep increasing every year. Besides causing tremendous physical injury to the victim, this crime has devastating psychological effects as well such as PTSD, depression, flashbacks, sleep disorders and more. One step towards elimination of this crime would be to improve safety and security for women in the State. More than stringent laws to penalize the wrongdoers, it is the attitude and mentality of men, like the Supreme Court Judges in the Mathura Rape Case that requires reformation.

They are all innocent until proven guilty. But not me. I am a liar until I am proven honest. -Louise O'Neill

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