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Abstract:
70% of the women do not report sexual harassment by superiors due to the fear of being judged by the society and its repercussions. The #Me Too movement brought about an initiative to solve this problem that existed in the society. This paper talks about the much known #Me Too Movement that was initiated by an activist to give women confidence and a platform to come up and talk about the grievances they have been facing from so long. It started in the U.S.A in 2017 and travelled to India one year later in 2018. #Me too is an empowering movement for women who have been sexually assaulted and harassed to come forward. The offences of rape, sexual harassment and sexual assault are punishable under the Penal laws under Sections 376, 354 and 376A respectively but the question that needs to be answered is whether such accusations of these offenses on social media hold any legal viability? Also, if the statement holds legal validity and is not true the other legal implication that flows is the possible case of defamation from the accused assaulter against the confessor. And how difficult will it be to prove the same as the incidents being talked about are very old. The paper will try to answer all these above questions and the aftermath of what happened after the advent of this movement.
I. INTRODUCTION
Many stories of personal sufferance have come up in the recent months which were buried under years of silence though the #Me Too movement. #MeToo is an online campaign that supports survivors of sexual abuse, assault and harassment, although it has gained popularity only recently, the initiative began 10 years ago. The MeToo movement spread virally in Oct’17 as a hashtag on social media which brought about confessions related to sexual assault and sexual abuse; has surfaced a much-needed discussion and became a global phenomenon. This campaign gave courage to the aggrieved females to name the accused in an open platform. Women, specially some of the famous public figures have been putting accusations against men through the social platform. The allegations of incidents that came forward were very old, so it was difficult to prove the actuality of the situation which led to filling of defamation cases by the accused.
Although, this movement was important to create fear in the minds of the fearless offenders of such grave crimes but still, the problem persists as it is very difficult to enforce this movement to the under privileged section of the society who neither know of the provisions of law nor do they know how to reach the concerned authorities.
II. How The Movement Started?
Origin
Tarana Burke, an activist from Harlem, launched the movement a decade ago to aid underprivileged women of colour affected by sexual abuse. She began using the phrase “Me Too” in 2006, on the Myspace social network as a part of campaign to promote “empowerment through empathy”[1].
Propagation
The two-word phrase resurfaced in October when actress Alyssa Milano took to Twitter to invite those who have experienced sexual harrassment to respond with “Me too.”
Her tweet followed the New York Times’ Oct. 5 investigation into decades of sexual harassment allegations against Hollywood producer Harvey Weinstein, and within hours #MeToo went viral on Twitter, Facebook, Instagram and beyond as people took to the platforms to share their personal accounts of sexual assault.
Although the historic movement started around 12 years ago, it became famous only two years ago. Now, it is being used by women across the globe to share their anguish against sexual harassment. #MeToo quickly became an international phenomenon, with women different countries translating the hashtag or creating their own.
In France, “#BalanceTonPorc”, meaning “rat out your pig,” goes viral; in the Arab world, “#Ana_kaman,” translating to “me too,” is used millions of times.
Aftermath
The phrase “Me too” was tweeted by Milano around noon on October 15, 2017, and had been used more than 200,000 times by the end of the day, and tweeted more than 500,000 times by October 16. On Facebook, the hashtag was used by more than 4.7 million people in 12 million posts during the first 24 hours. The platform reported that 45% of users in the United States had a friend who had posted using the term.
Since the advent of the #MeToo movement, many others came forward worldwide and in India in support of this movement by posting on social media. Some of the few are as follows:
Worldwide
- October 18, 2017: Gymnast McKayla Maroney tweets about her sexual assault at the hands of U.S.A. gymnastics doctor Larry Nassar. After that, more than 150 other women would come forward with similar stories. In January 2018, Nassar would be sentenced to 40-175 years in prison for sexual abuse[2].
- October 19, 2017: Repercussions of the #MeToo movement begin to affect many industries. On October 19, Lockhart Steele[3], Vox Media’s editorial director, is fired for sexual harassment. Within this week alone, sexual misconduct allegations are raised against restaurateur John Besh, director James Toback, fashion photographer Terry Richardson, Artforum publisher Knight Landesman, and journalist Mark Halperin. The list continues to grow: According to an in-depth infographic by Vox, over 200 celebrities, CEOs, and politicians have been accused of sexual misconduct.
- October 29, 2017: Anthony Rapp tells BuzzFeed News that Kevin Spacey made a sexual advance at him when he was 14. In response to Rapp’s story about underage advances, Spacey announces he is gay, and claims he does not remember his encounter with Rapp. “But if I did behave as he describes, I owe him the sincerest apology for what would have been deeply inappropriate drunken behaviour, and I am sorry for the feelings he describes having carried with him all these years,” Spacey writes. In the ensuing days and months, many more men would come forward with allegations. As of July 2018, there are six open sexual assault cases against Spacey in the U.K. Spacey is currently in rehab for sex addiction[4].
- November 17, 2017: Senator Al Franken isaccused of inappropriate groping during a 2006 USO trip by radio host Leann Tweeden. More women come forward with their own experiences. Franken resigns from his position as senator on December 7.
India
- In India, MeToo campaign started picking up around 7 October when actor Tanushree Dutta made serious allegations against Nana Patekar recounting her experiences during the shoot of the film, Horn OK Pleasss, 10 years ago[5].
- A female journalist accused singer Kailash Kher of harassment
- Bollywood filmmaker Subhash Kapoor was accused by journalist-turned-actress of molestation.
- Author Chetan Bhagat was accused of sending inappropriate texts to a woman journalist.[6]
- A Twitter user accused actor-comedian Utsav Chakraborty, an ex-AIB member, of sending sexually explicit messages to her and several other women. There are also allegations of sexual misconduct against the group’s founder-member Gursimran Khamba.
- Award winning film director Vikas Bahl, best known for directing Kangana Ranaut starrer Queen, has been accused of sexually harassing a woman employee of Phantom Films[7]
- As the ‘Me Too’ movement gathers momentum in the country, allegations of sexual harassment have surfaced against union minister and former journalist MJ Akbar. The minister of state for external affairs has been accused of sexual harassment by at least four women.
- Subhash Ghai has been accused of rape with an anonymous woman alleging that he spiked her drink and then sexually assaulted her, a claim the director “strictly and firmly” denied.
III. LEGALITY OF #METOO MOVEMENT:
Rape, Sexual harassment and sexual assault are heinous offences and are strictly punishable by the Indian Legislation. However, keeping in mind the taboo which lingers around this subject, FIR’s never make to investigation, or worse FIR is not filed and the culprit walks freely.
#Me too is an empowering movement for women who have been sexually assaulted and harassed to come forward, it has united women from various castes, creed and races to speak against such evil. It primarily concerned itself with sexual assault and sexual harassment incidences which then turned to sexual harassment and assault confessions from places other than work. This movement has gained a lot of attention in the past six months in India and not only cases of harassment and assault but also rape have surfaced with time.
But the question arises, that whether such accusations on social media hold any legal viability and if so, how can the rights and the interests of the victims be addressed legally and what remedy lies in case the accusations turn to be true.
Offences Involved in #Me Too
Such accusation of actions by the accused must fall under one of the following definitions of Sexual Harassment, Sexual Assault and Rape:
Sexual Harassment
Definition
Section 354A[8] of the IPC defines sexual harassment and criminalises any act by a person that assaults or uses criminal force against a woman with the intention or knowledge that it will outrage her modesty. Sexual harassment as defined by the Section 354A as a man committing any of the following acts:
- Physical contact and advances involving unwelcome and explicit sexual overtures; or
- A demand or request for sexual favours; or
- Showing pornography against the will of a woman; or
- Making sexually coloured remarks
This section possesses a wide ambit of acts that constitute sexual harassment, including unwanted verbal or physical advances of any kind. The law is not limited by the place at which the sexual harassment has taken place, unlike the law to prevent sexual harassment at work places.
Punishment
The punishment for (i), (ii) and (iii), as mentioned above is rigorous imprisonment for a term that may extend to 3 years or fine, or both. While, the punishment for (iv) is either simple or rigorous punishment which may extend up to 1 year or fine, or both.
Assault Or Use Of Criminal Force To Woman With Intent To Disrobe
Definition
Section 354B[9] of the IPC criminalises assault or use of criminal force against a woman with the intention of disrobing her, i.e. with the intention of depriving her of her clothing or forcing her to be naked.
Punishment
It is punishable with either simple or rigorous imprisonment of 3 to 7 years or a fine. Aiding to such an act attracts the same punishment.
Rape
Section 375[10]: A man is said to commit “rape” if he-
- Penetrates his penis, to any extent, into vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her do so with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
Firstly, against her will.
Secondly, without her consent
Thirdly, with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly, with her consent, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly, with or without her consent, when she is under sixteen years of age
Seventhly, When she is unable to communicate consent.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape
Exception- Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape
Punishment
Section 376 provides punishment for committing rape shall be punished with life imprisonment, or with imprisonment of either description for a term which may extend to ten years and fine or both.
If the act of harassment or assault comes within the ambit of the definition provided so by the Indian Penal Code, it is subject to punishment as provided by the legislation on filing of an FIR. An FIR can be lodged by the victim, a witness to the incident, or any person with knowledge of the incident. Subsequently, the courts have made clear that it does not have the authority to ‘suo moto’ take action without formal complaint.
The Courts are of opinion that the ‘fear or social stigma and on occasions the availability of medical treatment to gain normalcy and above all psychological inner strength to undertake such a legal battle’ may stop the victim from initiating a complaint. For the same reason, there is no limitation to file FIR on cases of sexual assault, harassment and rape and is not subject to the limitations act.
Another aspect which needs to be taken into consideration is the admissibility and availability of evidences. It is subject to the facts and circumstances of each case, the treatment of such evidences is same as any sexual assault, harassment and rape cases.
Defamation
The term “Defamation” is defined as the action of damaging the good reputation of someone.
As per Black’s Law dictionary, defamation means that the offence of injuring somebody’s character, fame, or reputation by false and malicious statements. This term can be further divided as- Slander and Libel. Slander being the verbal defamation where has libel is a published defamatory statement however, in India, there is no distinction of the statement whether orally or in permanent form. Defamation has two types of adjudications – civil defamation through civil courts in tort law and criminal defamation through criminal courts.
Defamation became more crucial and important with the advent of ease in communication through various channels like social media and classic media ( i.e. Newspaper and news channels) In cases of #MeToo confessions on social media against various accused/ offenders will come in the category of published false statement/ libel (if such statement is false).
According to section 499 of IPC; “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
Who Can File A Suit For Defamation?
A suit for defamation can be initiated either as civil or criminal proceedings. In case of criminal defamation, it can be initiated by an FIR, whether filed by the victim, witness or any person having sufficient information. In cases of civil defamation, an action for defamation was maintainable only by the person who was defamed and not by his friends, relatives and family members.[11]When a defamatory statement refers to group of individuals then it does not amount to defamation. Such a publication made against, lawyers, doctors or any other particular class of society then no member of that group can sue unless he proves that the statement refers to him.[12]
Intention to Defame
It must be noted that the intention to defame is not necessary. It is not material that the defendant does not know the facts or he believes himself to be. If there is an injury caused to the reputation of the plaintiff, then the defendant is held liable.
Essentials of Defamatory Statements
- The statement must be defamatory: this means that the statement must result inlowering the reputation or moral character of a person in the society or any other person.
- The statement must refer to the plaintiff: if the statement made by the defendant is in good faith or he doesn’t intend to defame the plaintiff, then he shall be held liable if it refers and injures the reputation of the plaintiff.
- The statement must be published: The defamatory statement must be published e it must come into the knowledge of the person other than the person defamed.
- False statement: The statement made or published is false.
Following Defences Are Available
- Truth: Statement made or published is true and the defendant is able to prove the same then he has a complete defence under civil law. If the statement is substantially true & accurate but some minor mistake is made without any intention to harm the plaintiff then he cannot be held liable.
- Fair comment: any comment on matters of public interest is a defence against action for defamation. Matters related to Public companies, courts, government administration, etc, are considered to be matters of public interest.
- Privilege: There are two kinds of privilege i.e. absolute privilege and qualified privilege. In absolute privilege even the statement is false no action will lie against any person. This privilege is available in respect of Parliamentary Proceedings, Judicial Proceedings and State Communications. Whereas in qualified privilege there are certain occasions where the defendant is exempted from defamatory liability if the statement made is not false.
With respect to defamation in the aspect of #MeToo movement; all essentials except for ‘whether such defamatory statement is true or not’ are fulfilled. For a defamation case to succeed or fail, the authenticity of such statement is the most essential part to establish defamation against #MeToo confessors.
In case the statement is found to be true, no grounds for defamation lie and hence the defendant is not liable. Where as in case of false statement, the confessor may face charges as defamation is a serious offence as goodwill and reputation is injured.
IV. SOME STATISTICS OF #METOO MOVEMENT
US STATISTICS
Yet surveys suggest that this year-long storm of allegations, confessions and firings has actually made Americans more skeptical about sexual harassment. In the first week of November 2017, YouGov polled 1,500 Americans about their insolences on the matter, the share of American adults replying that men who sexually harassed women at work 20 years ago should keep their jobs has increased from 28% to 36%. The proportion who think that women who complain about sexual harassment cause more problems from 29% to 31%. And 18% of Americans now think that false allegations of sexual assault are a bigger problem than attacks that go unregistered or unpunished, compared with 13% in November last year.
In the past four years, around 1,971 cases of sexual harassment of women at the workplace were recorded till December 12, 2017. Cases registered increased by 45 percent from 371 in 2014 to 539 in 2017.
According to 2017 report of the Indian National Bar Association[13] (INBA), 68.9 percent of accused did not complain to the management due to fears of Subsequently the #MeToo movement against sexual harassment at the workplace rocked social media in the past two years, a survey revealed to nearly one in three individuals have either tackled it or recognizes somebody in their family and friends who did, and every second victim faced physical advances by the offender. Though, approximately 80 per cent said they had not reported the cases to the companyor HR.
During an online poll of 15,000 adherents across the country by Local Circles, 32 per cent said that they or one of their known people have faced sexual harassment at the work place. Of the 15,000 members, 6,137 were women[14].
Half of the members who said they or their knowns faced harassment mentioned that the incident took place at work during regular office hours, whereas 19 per cent said it happened afterhours at the work place.
The offences extended from physical harassment, sexual advantages and sexually-colored comments, with 50 per cent of those who have tackle such cases mentioning physical advances. The survey disclosed that 78 per cent of the people who had handled such sexual harassment did not report to the company HR, which shows a imperfect redressal system even with the Vishakha Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 fetched with rules concerning the issue, rights lawyers and HR specialists said. The 2013 Act directs an internal complaints committee in every office or branch with more than 10 employees .
Revenge, consequences and a sense that sympathy will endure with the offender. And 65.2 percent alleged the company did not follow the procedures pronounced under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
A current study by Money control shows that Nifty companies have recorded 588 complaints of sexual harassment in 2018 and in information technology companies, the no. is of 244[15].
While there is hope that this year’s statistics will encourage more women to speak up, experts believe that the #MeToo movement has, until now, scratched only the tip of the iceberg. Though names of alleged perpetrators have emerged from the media and entertainment industry, other sectors are yet to have their wake-up calls.
V. Conclusion
#MeToo movement has brought about various legal implications by raising issues of sexual harassment, assault and rape. For a country such as India, where there lies ample of social stigma with regards to the sexual abuse of women, #MeToo has brought about a fresh air of justice to all victims. However, just pointing fingers to accused does not bring about the change needed in society. It majorly sheds light on the injustice that has sneaked in the system rendering all the #MeToo victims without justice.
Legal process is needed in the sense that the accused must be held liable if the charges are proved to be true. Since, the courts have decided to not take Suo moto action in relation to #MeToo confession, thus it is upon the victim to file a FIR and initiate legal proceedings. The procedure will result in the same treatment as in the cases of Sexual abuse.
The other unnoticed legal implication is the possible case of defamation from the accused assaulter against the confessor. The case holds to be substantial, if the confession of such sexual abuse is merely an allegation.
Even though there is hope that this year’s statistics will inspire more women to speak up, some experts believe that the #MeToo movement has, till now, just only scratched the tip of the iceberg. However, many names of alleged offenders have arose from the media and entertainment industry, other sectors are so far to have their wake-up calls.
[1] Daisy Murray, ’Empowerment through Empathy’ – We spoke to Tarana Burke, The women who really started the ‘Me Too’ Moment (Oct, 23,2017), https://www.elle.com/uk/life-and-culture/culture/news/a39429/empowerment-through-empathy-tarana-burke-me-too/
[2] Alice Park and Billy Perrigo, ‘It started when I was 13 years old’. Olympic Gymnast McKayla Maroney says U.S. Team doctor molested her, (Oct,18,2017, 11:59 AM), http://time.com/4987066/mckayla-maroney-metoo-molested/
[3] Todd Spangler, Vox Media Editorial Director Lockheart Steele Fired for Sexual Harassment, (Oct 20, 2017,7:52 AM) , https://variety.com/2017/digital/news/vox-media-lockhart-steele-fired-sexual-harassment-1202595146/
[4] Adam B. Vary, Actor Anthony Rapp: Kevin Spacey made a sexual advance toward me when I was 14, ( Oct 30, 2017, 12:37 AM) , https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sexual-advance-when-i-was-14
[5] Reuters, Tanushree Dutta, who helped trigger India’s #MeToo moment, says she was not going to back down the second time, ( Oct 16, 2018, 6:18 PM), https://www.hindustantimes.com/bollywood/tanushree-dutta-who-helped-trigger-india-s-metoo-movement-says-she-was-not-going-to-back-down-the-second-time/story-eyYO4rlN2BL405cRGDw1zM.html
[6] Joseph Biswas, Author Chetan Bhagat admits to sending explicit messages; asks for forgiveness (Oct 6, 2018), https://www.thelivemirror.com/chetan-bhagat-admit-sending-explicit-messages-woman/
[7] Ankur Pathak, ‘Queen’ Director Vikas Bahl sexually assaulted me, Phantom films did nothing : survivor speaks out ( Oct 16, 2018,6:21 PM), https://www.huffingtonpost.in/2018/10/06/queen-director-vikas-bahl-sexually-assaulted-me-phantom-films-did-nothing-survivor-speaks-out_a_23552623/
[8] Section 354A of Indian Penal Code
[9] Section 34B of the Indian Penal Code
[10] Section 375 of the Indian Penal Code
[11]Harash Mendiratta V. Maharaj Singh; 2002 Cr. L.J. 2651
[12] Knupffer V. London Express Newspapers Ltd.; (1944) 1 All E.R. 495
[13] Apoorva Mandhani, 68% victims avoid reporting sexual harassment at workplace : INBA survey (Jan 6, 2017, 2:49 PM ), https://www.livelaw.in/68-victims-avoid-reporting-sexual-harassment-workplace-inba-survey/
[14] 78% of those who were sexually harassed at work place did not report it, ( Oct 16,2018), https://www.localcircles.com/a/press/page/metoo-sexual-harassment-in-india#.XOP7TVIzbIU
[15] Pankti Mehta Kadakia, #MeToo: Time’s up, ( Oct 20,2018 ), http://www.forbesindia.com/printcontent/51595
Cite as: R. Aswini, #MeToo Movement Truth Buried Under Years of Silence, 1 Int’l J. of Legal Sci. and Inno. 2 (2019)