Posted on: August 6, 2020 Posted by: Hardi Satta Comments: 1
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What is Sexual Harassment? It is a behaviour characterized by the making of unwelcomed and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation. To summarize the legal overview of Sexual Harassment in India, in 1997, in the landmark judgment of Vishakha and others v. the State of Rajasthan (1997), 6 SCC 241, AIR 1997 SC 3011, the Supreme Court of India defined sexual harassment at the workplace, pronounced preventive, prohibitionary and redress measures, and gave directives towards a legislative mandate to the guidelines proposed.

Sexual Harassment includes numerous things:

  1. Actual or attempted rape or sexual assault.
  2. Unwanted deliberate touching, leaning over, cornering, or pinching.
  3. Unwanted sexual teasing, jokes, remarks, or questions.
  4. Whistling at someone.
  5. Kissing sounds, howling, and smacking lips.
  6. Touching an employee’s clothing, hair, or body.
  7. Touching or rubbing oneself sexually around another person.

Understanding Sexual Harassment as a tort:

The word ‘tort’ is derived from the Latin term tortum, which means twisted, and implies distorted or tortious conduct. The term is employed in Common Law systems for civilly actionable damage or negligence and with the section concerned with the responsibility regarding these wrongs. The basic principle put forth is that tort is a legal wrong that can be remedied by a suit for unliquidated damages, which is anything than a simple breach of contract.

The tort of Sexual Harassment is a newly established concept and at the same time a wide one. There is no specified legal theory under which a sexual assault lawsuit can be filed. Anyone is liable under other provisions of Law of Tort, such as- Trespass to Person: Assault and Battery, False Imprisonment, and Intentional Infliction of Emotional Distress. Therefore, our focus rests only upon a single pervasive area of this definition, i.e., workplace sexual harassment. Sexual assault may be both a crime and a criminal offence.

Sexual abuse is simply an act that is not authorized by law.

Judicial damage-in this case, the concept of injuria sine damnum must be proven, i.e. it must be proven that while physical harm was not caused to the victim through sexual assault, it infringed the individual’s legal right, which should not go unanswered according to the theory in question.

Legal remedy-The primary aim of Tort Law is compensation for the victim. It is important for this to be fulfilled, as no single accusation of sexual assault in the court of law goes unaddressed.

Instead, of a criminal case, the filing of a civil complaint over an act of sexual assault has two sides: it has both benefits and drawbacks for the victim itself.

  • ADVANTAGES:
  1. As a plaintiff in civil cases, the victim makes many consequential legal decisions regarding whether to bring a lawsuit, proceed with it, resolve the lawsuit or take further action. The victim thus remains solely in charge of the case (within the boundaries of law). It juxtaposes sharply with criminal procedure, in which the defendant is the party of action and the prosecutor represents the defendant; in the case of the prosecution, the victim is a mere witness, subject to summons or at times even contempt for failure to appear.
  2. Civil claims permit the plaintiff to meet a lower presumption of proof, predominance of the evidence, rather than proof above a fair criminal law level of doubt.
  3. The complainant is entitled to depose the defendant in a civil suit, and to interrogate him under oath. For a survivor, this could be empowering or otherwise soothing.
  4. Miscarriage in legislation is fairly versatile. Victims do not determine precisely which part of the defendant’s body was touched with which part of the complainant’s body to create a cause for action. For example, in assault, a plaintiff only needs to prove that she has been hurt or offended by the touch of the defendant, and that the defendant meant the touch and probable damage or offense.
  5. Suits seeking compensation will offer monetary as well as non-monetary benefits for the victim. A successful litigation will result in financial gain for the victims as well as compensation in other ways such as the assailant’s apology, work relocation arrangements, housing or educational institutions, or the defendant’s charitable donation to an agency that the victim prefers.
  • DISADVANTAGES:
  1. It can take five or in some cases, even more than five years to conclude a tort case alone at the level of the trial tribunal. This halt and the consequent long-term contact with the defendant can be emotionally painful for victims, requiring them to relive their traumatizing experience and keep fresh in mind the specifics of the attack.
  2. Victims can also have difficulty looking for a private prosecutor who is more interested in obtaining justice than presenting a sympathetic plaintiff to the court. This means that lawyers may refuse to take cases where the victim used drugs or alcohol was assaulted by an acquaintance, or did not sustain harm in ways that were instantly obvious to anyone after the assault.
  3. A civil action by a claimant who has to pay the entire cost of prosecution is very costly. As a first-party to the action, the victim needs to employ their own counsel because of the state cannot fund it, however, the victim or her relatives may have to pay certain costs of litigation. And it becomes burdensome.
  4. For cases where the bench assigns amount of blame to the victims for the actions perpetrated against them, psychological consequences should be accepted for the victim as an award of guilt. Most jurisdictions do use the principle of comparative accountability, in which they assign the blame to the perpetrators. For example, in the Marriott hotel case, the court assigned 5 percent responsibility to the victim for not taking proper care of her safety as well as the safety of her children from 2009 where the victim who was sexually assaulted in front of her two children.

Sexual harassment, particularly at workplace, was a recurrent phenomenon faced by women. A greater portion of the cases involving sexual harassment are reported as criminal cases.

While Torts tends to be an appropriate solution for this error, as was pointed out in ‘Advantages of Filing a Civil Suit,’ these are not commonly used as liability in torts as a payback and not for the individual’s pain and suffering. Moreover, one single concept of sexual assault is difficult to stick to, since different behaviours may be awkward for different individuals.

It is the universal right of people in every civilized society to be able to live with dignity, free from mental or physical abuse. It is therefore necessary to enact laws that would allow women to report violations of their fundamental rights. Thus, in India’s attempt to address the issue of sexual harassment at work, the judgment of Vishakha vs State of Rajasthan, Justice Verma Committee Report and the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is relevant. It is clear from the growing number of recorded sexual harassment law suits that the new legislation has at least helped to raise understanding of employers’ responsibilities and employee rights in the event of sexual assault in the workplace.

Moreover, while there have been acts offering criminal penalties for an act of sexual assault, it is the need of the hour to generate strict tort laws that offer monetary compensation to the victim for the economic damage incurred either as a result of unemployment, having been terminated or dismissed from the earlier workplace or as a result of the inefficiency of work at the same place of work.

References:

1] Vishakha and others vs. State of Rajasthan AIR 1997 SC 3011

2] Krista J. Schoenheider, A TheoryofTort Liability For Sexual Harassment in the Workplace available on https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4011&context=penn_law_review

Hardi Satta
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Second Year BALLB student at  ILS Law College

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