Addressing Sexual Violence Through Empathy Rather than Retribution
India is currently experiencing widespread protests against gender-based violence directed at women. High-profile incidents, such as the rape and murder of a trainee doctor in Kolkata, allegations involving key figures in the Malayalam film industry as highlighted in the Hema Committee Report, and wrestler Vinesh Phogat’s claims of sexual harassment against BJP leader Brij Bhushan Sharan Singh, have sparked urgent calls for more stringent legal repercussions for sexual violence. In this discourse, I urge feminists to move away from relying on punitive measures by the state and to explore alternative frameworks that offer a departure from retributive justice. The core of my argument is that feminists must “break the wheel” and reject the oppressive tools of punishment, shame, and stigma.
The debate surrounding harsher penalties, including the death penalty, for sexual assault is a prevalent topic among two major strands of feminism: governance feminism and anti-carceral feminism. However, there has been insufficient attention paid to whether the sexual harassment laws and the narratives surrounding them in India can genuinely be considered feminist, especially given their paternalistic views toward victims and the portrayal of perpetrators as predators. This focus on punishment and retribution is indicative of a broader societal panic surrounding sexuality.
This raises a crucial question: what is the most compassionate approach to addressing incidents of sexual harassment? In this essay, I aim to explore this question through the lens of restorative justice. Writing as a “survivor scholar,” a term coined by Alexa Sardina and Alissa R. Ackerman to describe individuals who have experienced gender-based violence yet engage in scholarly research on patriarchal oppression, I present this perspective as a form of situated critique.
Tracing the Legal Evolution of Sexual Harassment Advocacy
Before analyzing why the existing legal framework surrounding sexual harassment contradicts feminist principles, it is essential to revisit the journey that led to the establishment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH).
The pivotal moment occurred in 1992 when Bhanwari Devi, a social worker from a marginalized caste, was gang-raped for attempting to prevent the marriage of a one-year-old girl as part of her campaign against child marriage. Several activists and NGOs filed a Public Interest Litigation (PIL) in the Supreme Court, seeking judicial action to address the legislative gap in ensuring gender equality and a safe working environment for women. Inspired by constitutional provisions including Articles 14, 15, 19(1)(g), and 21, and in alignment with India’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Supreme Court issued a set of guidelines in 1997, calling for criminal and disciplinary action against perpetrators of sexual harassment.
It took approximately 15 years for the government to legislate in support of the 1997 ruling, with the passage of the PoSH Act catalyzed by the infamous gang rape and murder of a physiotherapy student, known as the Nirbhaya case, in New Delhi in 2012, which led to significant legal reforms pertaining to violence against women.
The Paternalism Embedded in the PoSH Act
The title of the Act clearly indicates that it applies exclusively to women. Following the NALSA judgment in 2014, the Act’s restriction to individuals assigned female at birth has become outdated, failing to consider non-normative gender identities. Recently, in November 2023, the Supreme Court declined to mandate Parliament to enact a law on specific subjects, highlighting Janet Halley’s reiteration of Kendall Thomas’ assertion that women do not singularly define gender.
The preamble of the PoSH Act emphasizes its goal of “protecting” women. Ratna Kapur has critiqued this protectionist stance, evident in Section 2(n), which defines sexual harassment inclusively as unwelcome conduct that may encompass physical contact, demands for sexual favors, or sexually suggestive remarks, among other behaviors. Section 3 further elucidates scenarios encouraging sexual harassment, such as threats of detrimental treatment or the creation of a hostile environment.
While Kapur argues that this definition rightly addresses power imbalances where superiors abuse subordinates, it also penalizes sexual speech that, while possibly problematic, does not meet the threshold of severity to warrant punishment. The breadth of this law risks ensnaring women in a narrative of helplessness and victimhood, particularly concerning subjective terms like “unwelcome” and “sexually colored remarks,” which can be interpreted through conservative lenses. For instance, Sameena Dalwai faced accusations of harassment for merely showcasing screenshots from dating apps that highlighted prejudiced relationship preferences based on caste, class, and religion.
Ayesha Kidwai challenges Kapur’s stance, emphasizing the need for a more expansive definition of sexual harassment. Her experiences with cases in academia demonstrate that even without a direct physical component or explicit demands for sexual favors, women often feel violated by ongoing sexist remarks and unwanted advances.
To address complaints, Section 4 mandates employers to form an Internal Complaints Committee (ICC), led by a woman. However, the Justice Verma Committee, established in the wake of the Nirbhaya incident, argued against ICCs and advised creating an independent employment tribunal to shield complainants from internal pressures. Kidwai countered this recommendation, asserting that external bodies may present accessibility challenges. Maya John criticized this section for transforming a gender and labor rights matter into a private issue, reflecting the state’s retreat from enforcing protections in employer-employee relations.
Three additional provisions have sparked feminist dissent: Sections 9, 10, and 14. Section 9 imposes a three-month timeframe for lodging complaints to the ICC after the last incident of harassment, with an extension possible under certain circumstances. This arbitrary limitation is counterproductive, effectively punishing women who need time to consider their options before speaking out. The Economic and Political Weekly has published several research pieces detailing how women often feel subjected to scrutiny rather than the alleged perpetrator during ICC proceedings.
Section 10 offers ICCs the discretion to initiate a conciliatory process if requested by the complainant. Kidwai criticized this clause for elevating conciliation to a primary expectation within the law. In contrast, standpoint feminists advocate for restorative justice approaches that empower survivors to lead the process, but with necessary specialist training for facilitators. Section 14 has raised particular alarm due to its provision for punitive measures against alleged false or malicious complaints. These myths propagate the false belief that women frequently fabricate claims, overshadowing the significant patriarchal barriers that deter victims from coming forward, such as fears of discreditation. Unfortunately, the Supreme Court has perpetuated the fallacy, asserting that accusations of this nature are easy to make yet difficult to counter.
The Stigmatization of the Accused: Anti-Feminist Consequences
One often-ignored aspect in feminist discussions of sexual harassment is the stigmatization faced by some men accused of such offenses. This phenomenon, emerging alongside reliance on legal frameworks, ultimately contradicts feminist objectives. While governance and dominant feminism often turn to the law for recourse, some feminists have proposed “naming and shaming” as an alternative to formal legal processes.
In 2017, Raya Sarkar, an Indian law student based in the U.S., published a crowdsourced list of 70 Indian male academics accused of harassment, known as the List of Shame (LoSha), provoking a divided response within the movement. Notable scholars, including Nivedita Menon, Pratiksha Baxi, and Kidwai, urged Sarkar to retract the list and encourage those who submitted names to pursue formal justice routes instead. Their concern stemmed from the lack of context accompanying the accusations, which could reinforce harmful stereotypes about sexual harassment as a feminist fabrication or weaponize the list against marginalized groups.
Both proponents and opponents of the LoSha avoid critical discussions around the implications of shame and stigma. As Cathy O’Neil articulates, these tools serve societal preservation rather than individual protection, enforcing conformity to established norms. The pejorative label of “predator,” used in the naming and shaming campaigns, reinforces rigid gender dynamics, positioning women as passive victims and men as aggressive offenders. The dehumanizing descriptions of “predators” or “monsters” distort the understanding of misogyny as a societal issue, reducing it to individual deviance.
Conclusion
This analysis reveals that both existing laws and prevailing discourses on sexual harassment often stray from feminist principles. But can we chart a course forward that better aligns with a feminist commitment to addressing cruelty through empathy? It’s vital to recognize that incidents of sexual violence often leave individuals feeling isolated, compounded by the fear of victim-blaming. American activist Tarana Burke, the founder of the #MeToo movement, does not advocate for stricter laws but instead emphasizes the importance of allowing survivors to share their stories, fostering collective healing through community and survivor interaction. Her mission reminds us that the movement aims to combat isolation and foster solidarity among women.
While Burke centers the experiences of survivors, she also highlights the importance of creating space for reflection among perpetrators. She asserts that genuine healing within communities necessitates addressing the needs of both survivors and perpetrators; otherwise, we risk perpetuating cycles of harm. It is essential to remain vigilant in our critique of existing power structures while resisting the urge to replicate damaging practices of oppression.
Acknowledgment: I extend my gratitude to Dr. Sameena Dalwai for inspiring the title of this essay and Dr. Arun Sagar for enhancing my understanding of the issues discussed herein.
