Sexual Harassment and the Limits of Speech

Introduction

I aim to engage with speech, which may or may not be an act of speaking. I argue that not speaking does not mean remaining silent, and neither does silence mean consenting to a certain act. Therefore, it is necessary to first acknowledge this disjuncture between speaking and silence. A second matter placed for elaboration in this article is: Do “speaking” and “speaking in the language of law” mean similar forms of speech? This, therefore, suggests that the forms of speech in law are specific to its structure and may not be relevant or even required in other contexts. Silence is inherent to the legal process while secrecy is constituent of any (legal) interrogation. Thus, I read (legal) speech and (social) silence as a conundrum rather than in a binary. 

Feminism and Speech    

... [i]t is intelligible speech that challenges the stubborn indifference to sexual hurt which impunity cultivates and feeds on. Yet, the conditions that make speech possible are uneven and varied, and the act of speaking is almost always fraught. In this event, those who speak out, whether victim-survivors, witnesses or those who act on their behest, find themselves having to not only make words mean, but to ensure that they stay in place, and do not break under pressure. (Geetha 2016: 5) 

A complaint biography would include those times we decide not to make complaints – not to say something or not to do something – despite an experience or even because of an experience. A complaint can mean being prepared to talk about difficult and painful experiences over and over again, often to those with whom you have not built up a relationship of trust and those who represent an organisation that is implicated in some way in what you are complaining about.  You might decide not to complain because of your attachments; to a person, a group, a department, an institution: you might take seriously the warnings that a complaint would be damaging; you might worry about causing damage. And you might make a decision not to complain because you cannot risk the consequences of complaint. A decision not to complain can be influenced by past experiences; you might not be confident your complaint would be taken seriously because you have not been taken seriously. (Ahmed 2017)

I look at the two paragraphs above as an entry point to the crossroads that contemporary feminist politics and its methods of articulation seem to be at. The posters created and circulated by various women’s groups in India post the Vishaka judgment in 1997 spoke out against everyday forms of unwelcome behaviour from men at the workplace.

“Is your Flirting hurting?” (Murthy and Dasgupta 2011: 69) or “Eve teasing/Sexual Harassment is Not an Expression of Masculinity, No More silence” (Murthy and Dasgupta 2011: 70), “Any action which makes a woman uncomfortable amounts to sexual harassment, Beware” (Zubaan 2006: 30)—the underlying intention in all these posters was to ensure that there needed to be talk on sexual harassment. The need to use speech to bring experiences into the public realm has been encouraged and emphasised by feminist politics. Breaking the silence or chuppi todo has been part of posters and campaign slogans since the 1980s when issues of rape and domestic violence were discussed publicly in unprecedented ways. In October 2017, the #metoo campaign flooding Facebook and Twitter articulated and re-inscribed the magnitude of how naturalised sexual harassment is at multiple sites and by different people known or unknown to the one harassed. 

At the same time, there is a need to believe as well as confront that one is not alone in these (unwanted) experiences—some may have spoken about the unacceptable behaviour to a friend, some may have complained about it formally to a committee, while some could be waiting to express, waiting for the right moment to do so. There may be others who may never speak about the experience that was imposed; but not speaking does not erase the experience of the experience. Therefore, in the debates surrounding the method of naming in the list, I wonder whether feminist politics determine or prescribe or approve only one kind of speech. Is feminist praxis to dialogue or to sermonise? Is the feminist ethics not about pausing and being reflexive, about listening and learning from each other, and assessing and processing the different ways in which speech/articulation can happen? Is there space within feminist consciousness to consider the list as another (limited) form of articulation, a (re) starting of conversations, and needing therefore, the practice of listening? Post the list and the Statement, a couple of months distant from the controversy, I wish to embrace hope—in conversing and listening. The need to dialogue and debate between people and groups who may have plural (not opposite) positions on how to talk about unwanted/unacceptable sexual behaviours is of immense importance. Twenty years after the Vishaka judgment, with the nature and composition of genders accessing and entering spaces of higher education having undergone a substantive democratisation, it is crucial to contextualise and contemporise political articulations and platforms. This dialogue is messy, yet bears the possibilities of transforming words and worlds. 

Legal Limits in Talking about Transgressions 

The inevitability of law is to define and construct boundaries; the impossibility of the legal is to speak within those limits; while realising that usually, speech lies at the edge of this definitiveness. Law necessarily defines—it cannot be operational without definitions and it functions within the boundaries of the definition. The definition of sexual harassment includes and yet also leaves out many kinds of behaviour from the definition. Interpretation of what is not exactly in the definition is always possible, yet it is important to recognise that quasi legal committees operate within the framework of the law and all (sexually unwanted) behaviour cannot find a name in the law. Thus, the speech that law expects to be articulated well within its definitions and explanations sometimes can fall short of the permissible and available legal language. Moreover, speaking can entail hesitation and not always promptness or accuracy; while there is very little space for hesitation in the law. An attempt to speak to the law usually is so that the legal sphere endorses or gives legitimacy to that speech. Much effort went towards getting sexual harassment recognised within the juridical system, and only after that, committees for the prevention of multiple forms of sexual harassment as defined in the law were established in institutions of higher learning. 

It is necessary to claim the histories through which anti-sexual harassment committees got established in some university campuses in India in the late 1990s. It is important to constantly mark the distinctiveness between anti-sexual harassment committees from anti-ragging committees, or any other committee in a college or university. The former originally is a product of feminist politics and jurisprudence while the latter is a result of a UGC mandate.^[1]  Essential research and consultation is yet to be conducted in various Indian universities: the need to assess the functioning of anti-sexual harassment committees; who are members of these committees; what kind of complaints come to these committees; how has the nature of complaints transformed since the time the committees came into existence till today. In assessing the continuing and changing nature of complaints lies the recognition of what could not take the shape of a complaint. If it has been repeatedly said and felt in the women’s movement that the incidence of non-reporting of incidents of sexual violence is always much more than those reported, then it is obvious that there are multiple spaces and stages, between experiences of sexual transgressions and lodging a complaint of sexual harassment. One way of making sense of the list is to locate it in this in-between space of experience and complaint.  

It is also necessary to take cognisance of the co-existence of power and intimacy in teacher–student relationships in contemporary institutions of higher learning. In these transforming times, with the demands for empathetic, more democratic teachers, are flows of power disrupted? How do gender and caste relations play out within these flows? Is being (and expected to be) obedient as a student judged as being submissive by the faculty, and is the inability to resist interpreted as consent? Even before arriving at the certainty of complaint, there are cultures of transgressions that are ignored, tolerated, negotiated, and even (reluctantly) allowed. Are there spaces in campuses where conversations on the ordinariness of (sexual) transgression can be had? It is also important to underline that in this ever-evolving environment of adult “consensual” sexual relationships, all anti-sexual harassment committees in colleges and universities need to be sensitive and more responsive towards acknowledging sexual infringements/transgressions, and at the same time, encourage greater dialogue among all sections of the college/university community. In this context, it is relevant to remember that Harvard University and various other universities in the United States of America prohibit sexual/romantic relationships between teachers/instructors and undergraduate students (Parker 2015). In India, these discussions have not happened yet nor are they encouraged in academic spaces. I am not trying to suggest that these need to be part of teacher-student ethics codes or sexual harassment policies, but I am definitely indicating that there is a need to talk and create platforms to talk about these transgressive intimacies.

There is an urgent need for elected student associations and faculty associations to create collective forums and converse on ethics of student–teacher relationships. These are necessary between students, among faculty, and between faculty and students. All matters relating to gender–based discrimination and experiences should not be left to the Internal Complaints Committee. On one hand, this creates too much pressure on one committee both in terms of time and resource. On the other, it develops the impression that matters as serious and fundamental as those of sexually acceptable or unacceptable behaviour are not a component of the general ethical code of conduct, but are specific only to a gender–based committee. Institutions cannot remain satisfied and complacent that there are committees where sexual harassment will be reported, inquiries will be held, and which will justify the institutional claim towards “zero tolerance” to sexual harassment. Institutions need to create an enabling eco-system much beyond a complaint registering committee, where, within pedagogic and political practices of the institution’s functioning, certain non-negotiable principles of interpersonal interaction, irrespective of where one is in the power hierarchy, are inscribed. I am proposing on the need to craft cultures of conversations (between students, between faculty, between faculty and students, between administrative staff) moving beyond complaints culture. This is not merely training and legal awareness on the provisions of laws of sexual harassment, but a democratic space being able to acknowledge the complex life-worlds that students inhabit in institutions of higher learning in contemporary times. This will enable conversations on the plural meanings of unwelcome experiences in an otherwise known, at times “intimate,” relationship. These will also enable the importance of setting ethical standards of maintaining distance between teachers and students, especially those who are related in roles of grading or supervision. These are complicated conversations about the boundaries of faculty–student, student–student, faculty–faculty relationships—but there is a responsibility to have these conversations, definitely not within moral frameworks of right and wrong or limited to the legal meanings of accepted and prohibited; but the ethical standards of scope and boundary. We need to imagine multiple forms through which a shift towards a culture of conversations may happen. This would also mean a continuous engendering of academic disciplines. Organising film screenings which represent the complex questions around desire, secrecy, consent, love, promise to marry, betrayal in our everyday local contexts, along with discussions and debate may go some way in generating critical insights into these questions. Student and faculty association need to take into cognisance matters related to all genders in a campus: from issues of availability of hostel accommodation and differential timings for men and women in halls of residence, to gender auditing of people occupying positions of authority within university spaces. Democratising rather than assuming universities as naturally democratic spaces could be an important consequence in the move towards creating a culture of conversations. 

Possibilities towards Conversations

Within a transforming landscape of young, aspiring, freedom-seeking students of plural genders in institutions of higher learning across Indian cities, there will be a desire to talk about, discuss and debate sexual politics, and this desire is likely to challenge cultures of silence around them.  Collective (not always institutional), informal spaces and groups are better equipped to do these dialogues. Study circles, for instance could be one such fluid group. These have been significant among students for understanding Marx (outside of political science or sociology), for reading Foucault (when courses did not introduce his work) or the recent Periyar–Ambedkar study circles (which were banned after being considered a threat). Feminist reading groups could also initiate readings on desire and intimacy, so that common sense responses to these as being either moralistic or erotically indulgent are dismissed.  This is by no means to suggest that these conversations can easily transpire, even between students because of the diversity and the hierarchy of locations that students themselves occupy. 

What do students experience in the college/university classroom—a distinctly hierarchical space, marked by social locations and identities of people occupying it.^[2] Can the classroom be a common experience that students may want to converse about? Or can the experience of being supervised be another common chord among research scholars since it is a more interpersonal encounter with faculty? Is it that there are so many ruptures and layers of access to power and intimacy with power that these conversations will necessarily be about disagreements? Disagreements and differences may still constitute a relational prism—a prism that will not assume similarity or agreement, yet nurture a possible  alliance, camaraderie, or even solidarity among people with the (im)possibilities of harmony. Yet harmony may not always be the desired intent of conversations. It is not only about resolving the problem, but also talking about power, intimacy, transgression, and harassment from various vantage points, with the promise that these conversations will be made as well as heard with care. What kind of everyday culture of power and politics does a college/university campus assemble? An anti-sexual harassment committee functioning within an otherwise democratic campus will usually try to function in conjunction with the practices of the campus at large. Having said this, it is important to remember that the committees also function in contravention to the practices prevalent in other parts of the campus, primarily because any quasi-judicial committee has its own legal language and modes of functioning. This is in continuation to an argument made earlier that the legal will follow its own language and course, seeking to legitimise those speech and articulation that falls within its meanings, marginalising other forms of speech. There is therefore a need to strengthen the autonomous/independent functioning of the anti-sexual harassment committees together with co-constituting cultures of (informal/collective, even if fractured) conversations. An unquestioned faith in the complaint-evidence-committee mechanism is not the only method of doing feminist politics. Caring-listening-conversing is as much a practice and politics to be (re) claimed at the juncture, where there seems to be an emergent fissure.

Was there no risk involved in preparing and uploading of the list?^[3] Was it only an act to warn or to shock and not to initiate newer and renewed discussions on gendered power in the academia? There in lay the importance of caution that the Statement^[4] might have attempted to communicate, which was also a form of speech. Is a dialogue possible, waiting to happen, between risk and caution? Is it possible to think of this (fractured) moment as one that exists because of feminist politics and not in spite of it? The fact that there is a list in social media, beyond secrecy and/or gossip suggests towards a risk that feminist politics itself has encouraged women and people with different genders to take. Questions of owing responsibility before “naming,” gathering testimonies as evidence before “warning,” and exhausting procedures before “listing” sound cautionary and reasonable. Yet this seems to be an affective political juncture with immense potential to mark the importance and ambivalences of speaking. Listening is indeed imperative at this crossroads to unearth meanings around (regular or expected everyday) silences, where conversations are absent.

This article is a part of the Special Feature Power and Relationships in Academia. To read other articles in this feature, click here.