“A sex-blind ‘reasonable man’ standard tends to be male-biased and tends to systematically ignore the experiences of women.”
“Herland” is a 1915 novel which envisions a utopic world comprising only women. Written by Charlotte Perkins Gilman, the novel conveys that women will be able to establish a society free of conflict, domination and exploitation, if liberated from socially constructed gender stereotypes. There are three male characters in the movie who stumble upon this mystic ‘Herland’, to be stunned by the peaceful and orderly society set up by women, which is totally different from the outside world ruled by men. One can imagine the novel as a catharsis of indignation and resentment felt at the rigid masculine world which makes womanhood feel as a curse. When reality is cruel, one is forced to invent alternate reality through fiction!
The #MeToo movement in social media, where women have opened up about their experiences of sexual harassment by men in power, position and privilege, can be viewed as a similar search for catharsis. As much as the campaign is about justice and punishment of the perpetrator, it is about seeking closure and empathy. The campaign took off the mask of several men from the fields of art, entertainment, media and academia, who used to style themselves as votaries of gender equality and feminism. Several ‘woke’ idols were exposed as desperate predators.
It is also important to take note of certain standard male responses to the campaign. Some expressed that several revelations were just exaggerated twists of ‘normal’ male behaviour, such as a ‘casual’ joke as part of office banter, or a ‘complimentary’ remark on the appearance of a woman, or ‘innocuous’ flirting, or attempts to ‘pursue’ a woman with aim to establish a relationship. When the ‘me too’ campaign hit France, an established French actress commented that the movement was ‘puritanical’ affecting a man’s right to seduce a woman. During the Parliament discussion of 2013 criminal law amendment to make stalking an offence, Sharad Yadav, then an MP, asked “how will boys now woo girls?”
These reactions are reflective of the mainstream culture which places man as a pursuer. They also indicate that there is divergence between male and female perceptions of sexual harassment. Sexual harassment of lesser degree, having no element of blatant lewdness or gross violence, is generally condoned by society. Stalking is romanticised and abusive behaviour is trivialized. It is to address subtle forms of sexual harassment that the law was amended in 2013 to create the offence of sexual harassment.
In a work place, acts of harassment take place in any asymmetrical plane of power dynamics, where a woman’s scope for exercising consent is deeply diluted. Hence, the impact of sexual harassment at workplace is highly aggravated. There is no doubt that sexual harassment at work place acts as sexual discrimination, as it amounts to gender-based barriers on a woman’s professional performance. The ‘Sexual Harassment of Women at Work Place(Prevention, Prohibition and Redressal) Act 2013 states in the preamble itself that sexual harassment violates a woman’s right to equality under Articles 14 and 15 of the Constitution and right to dignity under Article 21, and that right to practise any profession or carry out any trade or occupation under Article 19(1)(g) includes right to a safe environment free from sexual harassment. In this regard, it is pertinent to note the expanded understanding of Article 15(1) made by Justice Chandrachud in his judgments striking down Sections 377 and 497 of IPC, that perpetuation of gender stereotypes amounts to discriminatory behaviour as per Article 15(1). Sexual harassment certainly has patriarchial and paternalistic undertones.
Is there any objective standard for adjudicating an act as sexual harassment at work place? What yardstick should be adopted for determining whether an act has crossed the line? Should law look at the intent of the man( For example a man might say : I was just joking; I might have been over friendly; I misread the situation, etc) or the impact of the act on the woman?
Reasonable Woman Test
The test of “reasonable man of ordinary prudence” is commonly invoked by Courts to adjudicate whether a conduct is reasonable or not. This “reasonable man” denotes a hypothetical person who will exercise average skill, care and discretion. Very often, the “reasonable man” test adopts the views of a middle class traditional male, as most of the judges belong to this category. Applying this standard in cases of sexual harassment may yield unjust results.
The decision of US District Court for Eastern Michigan in Rabidue v. Osceola Refining Co. provides a vivid example of male-oriented application of the reasonable person test. There, the plaintiff alleged that a co-worker continually made vulgar and obscene comments about women generally, sometimes directing them at her. The majority applied the reasonable person standard and held that the defendant's behaviour was not so startling as to seriously affect the psyche of a reasonable person. However, a lone dissenting judge criticised the application of “reasonable man” test, and advocated a “reasonable victim test”.
The dissent argued that the majority’s reasonable person analysis was erroneous since “the reasonable person perspective fails to account for the wide divergence between most women’s views of appropriate sexual conduct and those of men”. Application of this test will “sustain ingrained notions of reasonable behaviours fashioned by the offenders”.
The differences in male and female perspectives regarding what constitutes sexual harassment were commented upon by the US Court of Appeals for First Circuit Court in Lipsett v. University of Puerto Rico. According to the First Circuit, "a male Supervisor might believe that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female subordinate, however, may find such comments offensive."
A transition from this test was made in US Court of Appeals in Ninth Circuit in Kerry Ellison v Nicholas Brady. In this case, the Ellison complained of hostile work environment created by repeated letters and communications made by her superior at work with strong obsessive undertones. The trial court did not agree that there was sexual harassment, primarily based on the fact that there was no explicit sexual content in the letters, and termed those communications as “isolated and trivial” which will not offend a reasonable person.
The Appellate Court reversed the trial court decision, criticising the reasonable person test as “reinforcing the prevailing level of discrimination”. This test was noted as problematic as it meant that “Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy”.
The court recognized that what men and women find objectionable may differ; therefore, it made sense to consider the circumstances from the victim's perspective in evaluating the severity and pervasiveness of the harassment.
In particular, what a female victim may perceive as offensive behavior may not be perceived as such by the male harasser. Men "may view [such] conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive”. Thus, the Court attempted to close the gap in perceptions between what men and women view as threatening behaviour by adopting the “reasonable woman” standard.
“We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men. Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to 'run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living”
Applying this standard, the Court held that a reasonable woman in Ellison’s position would have perceived the superior’s behaviour as harassment, leading to a hostile work environment.
While hearing a petition filed by a woman District Judge against sexual harassment by a High Court Judge, the SC made an observation, which indicated its willingness to have a shift in perspective in dealing with sexual harassment. During the course of hearing, the counsel appearing for the High Court described the interjections made by petitioner’s counsel Indira Jaising, Senior Advocate, as “delightful”. This was objected to by Jaising as a sexually coloured remark, and asked whether interjections made by male lawyers were also felt as “delightful”. The SC noted that the verbal exchange between the lawyers and observed : “There is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is, therefore, that we have remarked above, that the evaluation of a charge of sexual harassment, would depend on the manner in which it is perceived. Whether the perception of the harassed individual, was conveyed to the person accused, would be very material, in a case falling in the realm of over - sensitivity. In that case, it would not be open to him thereafter, to defend himself by projecting that he had not sexually harassed the person concerned, because in his understanding the alleged action was unoffending”.
These observations indicate the understanding of the SC that a perception shift will be necessary to understand cases of sexual harassment.
However, the approach of Indian courts towards sexual offences has been informed mostly by male prejudices, especially in decoding consent in sexual offence cases between persons having long standing acquaintance. Last year’s Delhi HC judgment in the Farooqui case is an example. There the Court acquitted the accused in a rape case observing that a “woman’s feeble ‘no’ might mean ‘yes’”. On reading the judgment, one gets the feeling that male perspective trumped all other factors to compel the Court to give benefit of doubt to the accused on ground that he misread the situation to presume consent. The other observations in the judgment to the effect that ‘in normal construct, man initiates sexual acts’, ‘he performs the active part whereas a woman is by and large, non-verbal’, etc seem to suggest that situation was approached and studied only through a male perspective, and that strong gender bias was at play in the judgment. Though the matter required a deeper examination by the SC, it summarily dismissed the appeal challenging the Delhi HC decision.
Likewise, the Punjab and Haryana HC displayed similar insensitivity towards the victim of Jindal Law School rape case, through its uncharitable observations while suspending the sentence of accused. It was observed that the entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades, and a promiscuous and voyeuristic world. The incident of the incident of a woman forced to indulge in sexual acts against her will due to blackmailing was trivialised as adventurism and experimentation in sexual encounters.
In this context, the observations in the Article “Will Women Judges Matter?”, authored by Madame Justice Bertha Wilson, judge, Canadian Supreme Court, are worthy of reference: “The studies show overwhelming evidence that gender-based myths, biases, and stereotypes are deeply embedded in the attitudes of many male judges, as well as in the law itself. Researchers have concluded that gender difference has been a significant factor in judicial decision-making, particularly in the areas of tort law, criminal law, and family law. Further, many have concluded that sexism is the unarticulated underlying premise of many judgments in these areas, and that this is not really surprising having regard to the nature of the society in which the judges themselves have been socialized”.
This underlines the need to bring in woman perspective while handling sexual harassment case. The issue of sexual harassment has a variety of nuanced connotations. Its evaluation should adequately take into account the perception of the victim. The standard test of ‘reasonable man of ordinary prudence’ is self serving as far as masculine prejudices are concerned, and to sensitively address the issue, it should be perceived from the viewpoint of the victim, with emphasis more on the impact than the intent of the oppressor, at least with respect to civil consequences of sexual harassment. Adjudication of sexual harassment cases based on mechanical application of “reasonable man” standard will miss the gendered context of the case, leading to reinforcement of prevalent gender stereotypes.
Such a gender sensitive approach will ensure that womenfolk will be able to experience justice, peace and order in the real world itself, instead of seeking them in some mystical ‘Herland’.