SEXUAL HARASSMENT: GENDER BIASED STATUTORY STATUS - Sakshi Sehgal

ABSTRACT

The paper gives an in-depth analysis of various statutes of India (IPC, POSCO, POSH) and across the globe, covering the nations with highest sexual harassment crime rates. This paper further discusses about the gender biased approach of the present provisions that prima facie accuses the ‘male’ to have committed the wrong, giving benefit of doubt to the women. It is provided that the seriousness of the crime shall nowhere be compromised in the case of male victims as in that of females. The fact that the men do not come forward to report the abuse due to the societal pressure has also added up to the lack of legal development to safeguard them. The paper reads and explains the present statutory scenario in the context of Vijay Nair case. It has been found in researches that 1 in 6 men have faced sexual harassment, whether as children or adults. The Queensland Police Statistics 2011-2012 suggests that most of the sexual abuse for men begins before puberty, around the age of 10. Research suggests that 80% of male child sexual abuse is perpetrated by males. The unavailability of strict legislations and the silence has given rise to such cases, and that’s what the paper talks about.

KEYWORDS: Sexual Harassment, Gender Bias, Vijay Nair Case, Male Child Sexual Abuse, Indian Penal Code, 1860, POSCO, POSH.

INTRODUCTION

Sexual harassment existed long before there was a recognized term for it. The term was not coined until 1970s (Farley, 1975[1]) Women have been the subjects of the harassment since a long time now. Ever since the industrialization, women fall prey to their co-workers and seniors. The term includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, however the harassment is not always sexual in nature and can involve offensive remarks about a person’s sex, according to US Equal Employment Opportunity Commission (EOCC). India recognized the definition for the same in Vishakha v. State of Haryana[2]as ‘such unwelcome sexually determined behavior, whether directly or by implication, such as: physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The definition, however, does not recognize the fact that the victims to the crime can be men too and therefore is more inclined to women.

Sexual harassment is gender neutral; it doesn’t matter what the gender, age, race, sexual orientation of the victim or in the attacker’s context, ‘prey’ is. Men or boys who have been sexually harassed may have same reactions, or fears as any other survivor but have to additional challenges in sense of societal stigmatization and the stereotypical thinking rendering them with two options, either to speak up and be the subject of peoples’ mockery questioning their ‘masculinity’ or to remain silent and bear their predator ripping not just their body but their soul apart. This is either way the living hell one can be in. in most of the cases, people end up taking their lives and those who survive, expose themselves to a lifetime of psychological vulnerability.

In a 2010 Economic Times-Synovate survey[3], 527 males from various metro areas in the nation reported that 19% of them had experienced sexual harassment. The study found that 51% of the 527 males who participated in it in numerous major cities across the nation said they had experienced sexual harassment at work. In 2013, a comparable survey done by the Company for Viacom 18 revealed that 43% of male corporate employees had experienced sexual advances from coworkers. According to 2020 Sexual Harassment Survey – UK[4]although there were disparities in the sorts of sexual harassment experienced, males were just as likely as women to experience it at work (30% of women reported experiencing harassment compared to 27% of men).Nearly two thirds (63%) of people who encountered sexual harassment at work in the preceding year said a man did it, while over a quarter (22%) said a woman did it. Compared to 46% of males, 81% of women reported being harassed by a man. More than a third of men (35%) reported being harassed by another guy, compared to one in ten women’s (10%) reports of harassment by another woman.

Currently, in India there are many statutes prevailing for protection of women against sexual offences but there are no explicit statutes that actually accommodate sexual crimes against men. The Article 14 of the Indian Constitution deals with the ‘right to equality’ which needs to be taken into account and shall be while making the legislations, unless otherwise it is deemed to be a right violation, since it propagates rule of law, there shall be equality in accessibility of justice irrespective of genders.

TYPES OF SEXUAL HARASSMENT

Power Player: These harassers demand sexual favors in exchange for advantages they can offer because of their positions in the hierarchy, such as getting or keeping a job, good grades, recommendations, credentials, projects, promotions, orders, and other opportunities. This practice is known legally as “quid pro quo” harassment.
Mother/ Father figure: These harassers will attempt to establish mentor-like relationships with their targets while disguising their sexual intentions as requests for personal, professional, or academic attention.
One-of-the-Gang: Groups of men or women that embarrass others with vulgar remarks, physical criticism, or other unwanted sexual attention are said to be engaging in harassment. Individual harassers may behave in a way to fit in or impress the group, while groups may come together to harass a specific target.
Serial Harasser: These kinds of harassers meticulously cultivate a reputation so that it is difficult for people to think they would harm anyone. They carefully consider their strategies and carry out their attacks in secret so that it is their word against that of their victims.
Groper: When the chance arises, these harassers start to stray, making unwelcome physical contact that may start off harmless but end up getting worse.
Opportunist: Opportunists conceal premeditated or intentional sexual conduct toward targets by using physical surroundings, situations, or infrequently occurring opportunities. This frequently entails altering the setting to lessen the inhibiting effects of the workplace or the classroom, or using physical duties to “accidentally” grope a target.
Bully: In this context, a stalker is physically intimidating and separating two people who are actively participating in romantic relations. The motivation behind the harasser’s actions can vary, depending on factors like jealously, prejudice, or personal sexual agendas. The harasser usually makes an effort to physically separate the two by leveraging their size or making physical threats, and they usually stick around until they are happy with the separation or can use it to further their own sexual agenda against one of the victims.
Confidante: This kind of harasser approaches subordinates or students as peers or friends, discussing about their own struggles and struggles of others while allowing subordinates to share their own to foster a sense of value and trust. These connections quickly develop into personal ones.
Situational Harasser: When the harasser has a traumatic incident (psychologically), or starts to go through extremely stressful life circumstances, like psychological or medical issues, marital issues, or divorce, harassment behavior can start. If the circumstances alter or the demands are eliminated, the harassment will usually end.
Pest: This is the archetypal harasser who “won’t take ‘no’ for an answer” and keeps pestering a target for attention and dates after repeated denials. Typically, there is no malicious intent behind this incorrect behavior.
Great Gallant: The majority of this verbal harassment consists of gratuitous praises and remarks about the victim’s beauty and gender that are inappropriate or embarrassing to the recipient. Leering stares are occasionally given in response to such remarks.
Intellectual Seducers: These harassers, who are most frequently observed in educational settings, will attempt to utilize their expertise and abilities as a means of accessing students or information about students for sexual motives. They might make the pupils take part in tests or “research” that ask them about their sexual history, desires, or routines.
Incompetent: These are socially awkward people who need their targets’ attention but receive none in return. They could act entitled, thinking their targets ought to be touched by their attention. This kind of harasser may resort to bullying tactics as retaliation if they are rebuffed.
Stalking: Stalking is the ongoing monitoring, interaction, or observation of a person; it may be motivated by what the stalker perceives to be love, a sexual obsession, or even hate and anger.
Unintentional: Sexual harassment can occur when someone feels uncomfortable with acts or remarks of a sexual nature that were not made with the purpose to harass them.

ARE SEXUAL HARASSMENT, SEXUAL ASSAULT, AND SEXUAL ABUSE DIFFERENT?

Sexual Harassment: Sexual harassment is a much broader term which mainly includes three proscribed behaviors:

Sexual Coercion: Legally known as “quid pro quo harassment,” this refers to covert or overt attempts to condition working circumstances on sexual cooperation. Sexual coercion is perfectly exemplified by the age-old threat of “sleep with me or you’re fired.” It is the most normal type of sexual harassment, yet it is also the least common.
Unwanted Attention: Unwelcome physical contact, such as hugging, kissing, caressing, or constant pressure to engage in sexual activity constitutes unwanted attention. Provided that not all romantic and sexual advances made at work constitute harassment. The sexual advances must be unwanted and offensive to the target in order for it to qualify as criminal sexual harassment. According to the U.S. Supreme Court, they must be “sufficiently severe or pervasive” to “create an oppressive working environment.”
Gender Harassment: Gender harassment is when behavior targets others based on their gender but makes no sexually explicit comments. Graffiti labeling or making vulgar sexual remarks about bodies or sexual behavior are examples of gender harassment. The majority of the time, though, it is blatantly sexist, as seen by assertions that males shouldn’t care for children or that women are unsuited for leadership. These behaviors are considered “sexual” harassment because they are sex-based rather than because they are sexual in nature.

Case Law:

In A Finn v. The British [5] it was held that calling men ‘bald’ amounts to sexual harassment.
EOCC v. Long Prairie Packing CO (LLP)[6], first male on male class action by EOCC on the behalf of former LPP employees was settled for $1.9 million.

Sexual Assault: The word “sexual assault” can be used to denote a variety of unlawful sexual activities, including unwanted touching and kissing as well as rubbing, grabbing, and compelling the victim to engage in sexual contact with the offender. However, because the phrase includes rape, sexual assault and rape are related. The phrase “sexual violence” is frequently used by social and behavioral scientists. Compared to sexual assault, this phrase is far more inclusive. It includes actions that are painful and destructive but are not criminalized by the law. False promises, persistent pressure, abusive remarks, and reputational threats are all examples of sexual assault that are used to induce sex actions. It might include non-physical behaviors like whistles and catcalls that make someone feel objectified and violated. It includes exposing genitalia and distributing obscene photographs online without consent.

Case Law:

Organizations like Boy Scouts of America[7] and Catholic Church had to file for bankruptcy to meet the claims of sexual assault against young boys.
When Anthony Rapp accused Kevin Spacey (Rapp v.Fowler[8]) of sexual assault in a party. It was later settled with an apology and was blamed on being drunk.

Sexual Abuse: Molestation, often known as sexual abuse or sex abuse, is abusive sexual activity committed by one person against another. It is frequently committed with the use of force or by taking advantage of someone. Sexual abuse is a term used for a persistent pattern of sexual assaults.When an adult subjects a vulnerable group to an unwanted sexual act, it is sexual abuse. A population that is vulnerable is one that is unable to provide their informed consent to participate in the act. Vulnerable populations include people who are young, old, or mentally ill. Any sexual activity would be considered sexual abuse in the eyes of the law, regardless of age.

EFFECTS OF SEXUAL HARASSMENT

Depending on the victim, the level and length of the harassment, and other factors, the effects of sexual harassment might vary. Sexual harassment situations frequently fit the definition of “merely bothersome.” However, many situations can and can have a profoundly negative impact on a person’s quality of life, especially when they involve severe or persistent abuse and/or reprisal against a victim who refuses to submit to the harassment or who publicly complains about it. In fact, rape or sexual assault can have the same psychological repercussions as severe/chronic sexual harassment, according to psychologists and social workers.

EFFECTS ON INDIVIVUAL:

(A) Professional, academic, social and financial-

Inferior performance at work or at school; more absenteeism
Monetary loss, loss of a job or career
Having to revise academic plans, quit classes, or withdraw from school
Having one’s private life made available for public scrutiny—the victim is made out to be the “accused,” and frequently has his or her attire, way of life, and private life attacked.
Being rendered an object and made to feel bad by snide remarks
Character and reputation-based defamation
Loss of confidence in settings comparable to those where the harassment took place
Loss of faith in the types of individuals who hold positions comparable to those held by the harasser or his or her

(B) Psychological-

Depression
Anxiety
Post-traumatic stress disorder (PTSD)
Sleeplessness
Panic Attacks
Eating Disorders
Nightmares
Suicidal Thoughts
Suicide Attempts

EFFECTS ON ORGANISATIONS:

Escalated team conflicts resulting in lesser productivity
Decreased success in achieving financial objectives (because of team conflict)
Less satisfaction at work
Students who leave school to avoid harassment result in a loss of staff and expertise due to resignations made to prevent harassment or resignations made to avoid being accused of harassing others.
Decreased output and/or increased absenteeism among employees or students as a result of harassment
Costlier medical treatment and sick leave due to the effects of harassment on one’s health

Legal Status of Sexual Harassment Against Men in India

It is mentioned that India lacks legislations for protection of men against sexual harassment, but it does not stand that there are absolutely no laws for it. The existing laws however have many loopholes and thus limits the access of justice to males. Forth are some provisions under Indian statutes:

Section 377 of Indian Penal Code, 1860 criminalizes ‘sodomy’ without consent. However, the section initially was made with the view of criminalizing homosexuality recognizing it as unnatural, but in September 2018, SC ruled that application of the apply to sex with minors, sex without consent and bestiality. The section recognizes males as rape victims. Allahabad High Court in Mohammad Sabir and Ors. vs. Rex[9] on 3 August, 1949convicted the accuse for committing the crime of sodomy and later murdering a 9 year old boy. In State vs. Suresh Mehto on 14 March, 2016[10]the accused was convicted after 19 years by Delhi district court for committing carnal sex against the order of the nature with a man in his shop and inflicting injuries with a sharp-edged weapon.
The Protection of Children from Sexual Offences, 2012 (POSCO) criminalizes sexual harassment against children. It is a gender-neutral provision but is limited to children only and thus does not recognize the fact that even men over the can be victims of the evil of sexual harassment.
Universities Grant Commission Regulations, 2015 – a sexual harassment prevention law is also gender neutral but applies to just to colleges, universities and deemed to be universities and not to general public at large.

Unfortunately, India’s rules against sexual harassment are not gender-neutral and, for the most part, acknowledge that the victim of sexual harassment is typically a woman and the offender is typically a man. For example, the IPC’s Section 354 makes it unlawful to assault or use criminal force against a woman with the intent to offend her modesty. The IPC also contains sections 354A (which criminalizes sexual harassment by a man against a woman), 354B (which punishes the intent to strip a woman), 354C (voyeurism), 354D (stalking), 375 (which makes rape of a woman by a man illegal), and section 509. (Word, gesture or act intended to insult the modesty of a woman).Although it is commonly acknowledged that Section 377 of the IPC, which is an anti-sodomy statute, recognizes males as victims in sexual harassment cases, section 377 will only have limited application in the types of sexual harassment cases that men are typically subjected to at the hands of women.Notably, the Justice Verma Committee recommended gender-neutral terminology for sexual offences in India when it was established in 2013 to make changes to the country’s sexual harassment laws. However, the Criminal Law (Amendment) Act, 2013[11], did not ultimately include this provision. A female offender is not apprehended under Section 3 of the Protection of Children from Sexual Offences Act, which criminalizes “penetrative sexual assault,” despite the fact that the majority of its provisions are gender-neutral with regard to the perpetrator. Last but not least, the Sexual Harassment of Women at Workplace[12] (Prevention, Prohibition and Redressal) Act does not recognize male victims of workplace sexual harassment and is focused on preventing sexual harassment directed at women.

An article[13] by HuffPost, OML founder Vijay Nair experienced cyber sexual harassment from masked handles. He received inappropriate texts, and threats of committing suicide if he (Mr. Nair) did not agree to be with the stalker. The stalker also made obscene comments about his body. It came out to be one of his friends but wasn’t proved due to lack of evidence and also the fact that there are no provisions for male victims as yet. Since the FIR in 2016, no arrests have been made yet.

LEGAL STATUS OF SEXUAL HARASSMENT AGAINST MEN IN OTHER NATIONS

JAPAN:

Before the 1980s, “sexual harassment” simply did not exist in Japan. However, during the American movement against sexual harassment, more and more female employees began to publicly express their grave concern about sexual harassment in the 1980s.In Japan, sexual harassment is defined as the unfair treatment of employees as a result of their responses to inappropriate sexual advances or remarks, including dismissal, salary reduction, and the creation of a hostile work environment. These actions create serious obstacles for employees to complete their tasks and cannot be ignored.It encompasses hostile environment sexual harassment as well as quid pro quo sexual harassment. Unwelcome sexual actions include forced sexual relationships, unwanted sexual touching, and the broadcast of pornography. Unwanted sexual comments include questions about private personal lives, comments about sexual relationships, and revelation of private sexual matters.The Equal Employment Opportunity Act, which was passed in 1972 to guarantee female workers equal employment opportunities and equal treatment, was amended by the Diet (the Japanese national legislature) in 1997 to impose moral responsibility on employers to stop sexual harassment against women in the workplace. And in 2006, the Diet amended this Act to make it illegal for employers to treat any employee unfairly because of their gender, rather than just prohibiting discrimination against female employees. It also made it illegal for employers to treat female employees differently because of their marriage, pregnancy, or childbirth, and it turned the moral prohibition against sexual harassment against men into a binding legal requirement.

UNITED STATES OF AMERICA:

Title VII of the Civil Rights Act of 1964 serves as the foundation for the federal law. If an employee experiences sexual harassment and is unhappy with the investigation conducted by the organization, they may file a complaint with the Equal Employment Opportunity Commission.It is forbidden to make unwanted sexual advances toward a candidate or employee. Unwelcome sexual advances, requests for sexual favors, and other forms of verbal or physical harassment of a sexual character can all be considered harassment. However, harassment is not always of a sexual character and can involve inappropriate comments made regarding a person’s sex. For instance, it is unlawful to harass a lady by disparaging women in general. Both the victim and the harasser may be of either sexes, and they may even be of the same gender.

FRANCE:

Sexual harassment is defined as “the fact of harassing anybody using instructions, threats, or restraint, in order to acquire favors of a sexual character, by a person misusing the authority that functions impose on him” in Article 222-33 of the French Criminal Code. This simply indicates that sexual harassment cannot occur between coworkers of the same rank and that the harasser must have authority over the harassed. Moral harassment, on the other hand, happens when an employee is subjected to repeated acts (one is not enough), the aim or effect of which may result in a degradation (deterioration) of his working conditions, which may infringe upon his rights and his dignity, affect his physical or mental health, or jeopardize his future career prospects. harassment that is both moral and sexual is recognized by law. The statute is gender neutral and recognizes the plight of the male victims too.

ISRAEL:

The 1998 Israeli Sexual Harassment Law defines sexual harassment broadly and forbids it as a discriminating act, a restriction on freedom, a desecration of human dignity, a breach of every individual’s right to basic decency, and an invasion of privacy. In addition, the law forbids reprisals or intimidation that support sexual harassment. The legal term for intimidation or reprisal in relation to sexual harassment is “prejudicial treatment.” The statue recognizes the act of sexual harassment as a harm to ‘human dignity’ therefore it has given equal representation to males as that of females in the accessibility of justice.

PAKISTAN:

The “Protection Against Harassment of Women at Workplace Act, 2010” has been passed into law in Pakistan. This is the first time that sexual harassment in Pakistan has been formally defined by law. There was no precise definition of harassment before this law was passed, whether it occurred in the public, private, or workplace. There was no explicit definition of “modesty” in Section 509 of the Pakistan Penal Code of 1860, which dealt of “insulting the modesty” of a woman. Additionally, there was no law that forbade workplace harassment. Sexually assaulting women or insulting their modesty is now illegal in Pakistan under section 509 of the Penal Code. The perpetrator of this offence faces a potential sentence of 3 years in prison or a fine of up to PKR 500,000 (5 lakh). However, the crime is still compoundable and bailable. The statute only recognizes the sexual offences against women and does not discuss about that of men and thus is clearly of a unilateral approach.

UNITED KINGDOM:

Equality Act of 2010 prohibits sexual harassment. Sexual harassment is now more widely defined by the law as conduct that threatens or offends another person because of their sex.

The following types of harassing behavior are prohibited by the Equality Act:

Attracting unwanted attention from coworkers or employees
Spreading false information
Unfairly treating a colleague or coworker
Regularly criticizing a capable coworker or colleague

Additionally, sexual harassment isn’t just confined to in-person interactions. Online, telephone, and written harassment are all prohibited under the law.

The act protects both male and female victims (employees), including job applicants, apprentices and contract workers.

WHY DO MEN NOT REPORT INSTANCES OF SEXUAL HARASSMENT?

According to a BBC Survey[14] 2017, ‘Half of British women and a fifth of men have been sexually harassed at work or a place of study’

Of the women who said they had been harassed, 63% said they didn’t report it to anyone, and 79% of the male victims kept it to themselves.’

Now, the question that arises here is, why exactly do men have such high percentage of not reporting the sexual harassment they experience? Following are some general reasons that promote the ‘not reporting culture’ among men.

Stigma: There is a stigma around the exclusivity of sexual harassment to women, and the fact that the men can fall prey to it is prima facie not believable to many. The tendency of people not believing in the plight of male victims hinders them to report the incident and keep the silence.
Shame: There is whole lot standard set for men to be “masculine’ enough. This at some point stops the victims to report their predicament to save them from the embarrassment that they may face.
Guilt: “Victim Blaming” is a very serious situation for a sufferer to deal with. The predator makes sure to attack the person’s self-esteem and make him feel responsible for everything happening to him, rendering him in no capacity to raise the issue.
Fear of Ostracization: Generally, a person at powerful position tends to commit such acts in account of which the victim fails to bring the incident to light for the sake of not being excluded from the social circles.
Homophobic backlash: The society has progressed so much over the years but still has not accepted homogeneous relations of humans. Homosexuals are still mocked for their sexual preferences and that is a different battle altogether. Men who are harassed by men choose to keep silence to save themselves from being categorized as ‘homosexual’ and dodge what they call as ‘insult’.
Social Prejudice: There have always existed stereotypes and prejudices about the parameters of masculinity one of which is that men should not be expressive about their emotions of pain and sufferings which stops them for voicing their experiences of sexual harassment.
Non-recognition of females as perpetrators of Intimate-Partner Violence (IPV): Men have been always seen as the ‘more powerful sex’ who can easily get hold of women and assault them and it is quite difficult to believe that women can do the same to them. It is not voiced that how women cause atrocities on men and thus somewhere hinder men to report in the view that they will not be believed and may be accused themselves since women are given the benefit of doubt.

CONCLUSION

The paper has so far discussed about the unrecognized stake of male victims in Indian legal system. However, more developed countries have accommodated gender neutral laws and given the male victims a room to demand justice, India is on the same page as Pakistan when it comes to laws regarding sexual harassment. There is a need to realize the fact that it’s just not the women who need to be protected but men need the cover too. Although, the statistics of women being harassed are way more than that of men but being a democratic nation following the theory of rule of law, India should surely include men to its definition of sexual harassment. The legislature of the nation should take into account the increasing cases of male sexual exploitation. Surveys should be conducted to identify the unreported cases of male sexual harassment. Men should be encompassed in the ‘Sexual Harassment at Workplace’ as soon as possible. Certain sections should be added to the Indian Penal Code, 1860 to enable men to file suits for the abuse. The section 377 of IPC should be amended to include the act of sodomy committed by women. The act of harassment wounds not just the body but also impairs the mental and emotional being of a person and thus it is immaterial whether the victim is a male or a female. There should be stringent punishments for the perpetrators, whatsoever their gender is. The point of highlighting the issue through this paper is to demand for equal rights for both men and women, justifying the feministic goals of a world where there is no gender discrimination and everyone is considered ‘human’ before any categorization.

REFERENCES