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#MeToo: Time to rethink the biased and deeply flawed idea of ‘due process’ that has failed women time and again

The response of many men, and some women, to the calling out of sexual harassers and assaulters on Twitter, is to hark back to sedate and comforting ideas of ‘due process’ and a reliance on our justice system to resolve the trauma of victims, and protect the rights of the accused. This desire — a very natural and human desire for simpler times — is nevertheless wrong, both in its misplaced faith in the justice system, and in its failure to recognise that our old conception of ‘due process’ is inadequate to the demands being placed on it by #MeToo. Indeed, #MeToo is, among other things, a devastating critique of our existing mechanisms for resolving these conflicts.

How is our faith in the justice system misplaced? We have seen it fail women time and again, as in the case of Bhanwari Devi, a woman from Bhateri village in Rajasthan. Bhanwari Devi belongs to the kumhar caste, and in 1992 became a grassroots activist advocating against child marriage. When she tried to persuade a gujjar family to not marry off a girl child, they punished her by raping her. The usual horrors followed, with police behaving skeptically and mistreating the victim, and doctors refusing to examine her. In spite of these indignities, Bhanwari Devi pursued the case, only to have all five accused acquitted by the district and sessions court in 1995, receiving only nine months’ sentences for assault and not rape. A nationwide campaign launched in her support forced the Rajasthan Government to appeal the verdict, but only one hearing has been held between then and 2017. The features of this case — gender, class and caste disqualifying someone from getting a fair hearing — is so rampant that it cannot be called a glitch in due process. Indeed, it seems to be a feature of due process. Our justice system, to which we want to refer all of these cases, has been failing citizens for several decades, with special emphasis on failing vulnerable populations that don’t have the privilege or the resources to navigate the system.

 #MeToo: Time to rethink the biased and deeply flawed idea of ‘due process’ that has failed women time and again

#MeToo. Image via Reuters

Bhanwari Devi’s case had one positive outcome: it galvanised women’s groups in India, and led to the famous Visakha Guidelines on sexual harassment, which were then modified and adopted into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. This mandated the setting up of special mechanisms like internal complaints committees in companies and institutions. But #MeToo has shown how insufficient even this is. Kripa Fernandes, an alumnus of St Xavier’s College, Mumbai, where I also completed my undergraduation, wrote in a much-shared post about how the Xavier’s Women’s Development Cell, an empowered committee designed to give sexual harassment cases a fair hearing, failed spectacularly in its duty. Senior women professors of the humanities, those we would expect to be best equipped to conduct the process with sensitivity and empathy, ended up slut-shaming and ignoring the testimony of the victim, even refusing to call witnesses who were willing to speak on the victim’s behalf.

Can one call it ‘due process’ if it inaccurately and unfairly weighs testimonies differently? This is so rampant that philosopher Miranda Fricker has coined a term for it, called ‘testimonial injustice’. What it means is that the testimony of some groups has historically been, and continues to be, constantly discounted. This means that ‘due process’, which claims to give a fair hearing to both sides, is itself foundationally compromised, because its idea of a ‘fair hearing’ is different for different groups. To correct for this, one needs what #MeToo is proposing — being extra conscious of one’s biases when a woman is giving testimony, as captured in the movement’s urging us to ‘believe women’.

The second, and even more devastating challenge to our inadequate and outdated ideas of due process, rises from the nature of sexual assault. Not only is sexual assault often hidden from the eyes of anyone but the perpetrator and the victim, making standards of proof an absurd system to use, but we must also consider the extent to which ‘due process’ is retraumatising for victims. Indeed, #MeToo is pointing to a bigger flaw in our punitive judicial system as a whole, for indeed even in other investigations, ‘due process’ involves a lengthy traumatising of victims and their families, as the tragedy they have experienced is hashed and rehashed, with the burden of a long court case added to their already complicated lives.

That ‘due process’ does not take this form is not an accident. It is caused by another form of ‘testimonial injustice’ — the ignoring of expert women who have great ideas to solve this problem. Consider the team of senior women lawyers who came up with the Visakha Guidelines, only to see them diluted in the Prevention of Sexual Harassment Act of 2013. As one of the architects of the guidelines, lawyer Monica Sakhrani wrote in the Economic and Political Weekly, the guidelines advocated for no limitations on the time in which the complaint can be filed, sensitive as they were to the time it takes for victims to process such an experience when it happens. The final law set a six-month deadline. They spent a lot of time and effort setting guidelines for conducting a gender-sensitive inquiry; the Act did not include any of these. The Visakha team recommended providing legal and pscyho-social assistance to the complainant, in lines with ideas of restorative justice. Instead, in spite of several recommendations against it, the final law included punishments for complainants if their claims are unproven and the committee decides against them. This in a law looking to provide victims with a safe space to pursue redressal.

‘Due process’ urgently needs reimagining, because when it fails, the costs are even higher for victims than they were before. Added to the trauma of their experience is the conviction that they will not get a fair hearing, and the fear of people in power hurting them in the future. It also limits the support the person receives. When I asked Kripa about the support she had during this period, she said, ‘The only people that helped me were my parents and friends, in a limited capacity. We were all too frightened to tackle the system when I was still a student and potentially subject to further trauma in the form of, for instance, bullying by professors.’ That this failure and its costs is not understood and accounted for shows in responses to Kripa. Then principal Frazer Mascarenhas, another usually ‘woke’ voice, said to Mumbai Mirror that had Kripa reported the further abuse she faced at the hands of the victim after the WDC hearings, the offending student would have been dismissed from the college. How can someone who has been treated thus ever be asked to try again?th

Why wouldn’t someone hesitate before getting involved in this process? What is in it for victims except for a vague and almost inevitably disappointed hope for the punishment of the perpetrator? It is telling that most women speak of coming forward not to get justice for themselves, but so as to prevent the reoccurrence of this trauma on other women. Christine Blasey Ford explained this eloquently when she said, ‘I am here today not because I want to be. I am terrified. I am here because I believe it is my duty to tell you what happened to me while Brett Kavanaugh and I were in high school.’

Punitive justice is all about the ascribing of blame, with an accuser attempting to pin the accused, and the accused trying to wriggle free. There is no talk of responsibility — not our responsibility to the rehabilitation of victims, which is outsourced to underfunded social organisations, nor our responsibility to reform the perpetrator, so that this may not recur. Perhaps we must abandon grafting our inapplicable notions of punitive justice upon these cases, and listen to women’s voices calling for restorative justice for victims. Perhaps #MeToo needs to be the hammer that shatters our biased and deeply flawed idea of due process, leaving room for something better to emerge.

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Updated Date: Oct 15, 2018 13:43:59 IST

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