Virtual Harassment and remedies during the Pandemic, in conversation with Dr. Devika Singh (Part I)

In this interview we talk to Dr. Devika Singh, who is the co-founder and lead legal consultant at Cohere Consultants. She is a legal trainer on sexual harassment, workplace discrimination, inclusion and diversity and maternity and labour laws. Dr. Singh has aided the drafting and passage of the law on sexual harassment in the workplace in 2013 and the amendment to the Maternity Benefit Act in 2017. She has also been an advisor to the Government of India on laws protecting children from sexual offences, amendments to the IPC, laws on human trafficking and laws to protect women from domestic violence. This interview took place towards the beginning of the lockdown, in August 2020, when Universities and Colleges were shut down and ongoing Internal Committees (“IC”) cases were suddenly halted. In this insightful interview we discuss Dr. Singh’s experience in dealing with cases of online sexual harassment. We explore the notion of consent and the factors to be kept in mind while seeking consent over online platforms. We then delve into whether sexual harassment over virtual platforms can come under ‘campus’ as per the UGC Regulations. We also discuss whether ICs are equipped to conduct proceedings virtually and how the same can be done.

Here's what we learnt.

Q. As we increasingly rely on online modes of communication, could you provide us some examples of virtual sexual harassment cases you have dealt with over the years to provide us with some insight into what acts might be deemed inappropriate?

Certainly, over the years we have seen such cases and in the present circumstances there has been an explosion of such incidents which is rather unfortunate. We actually believed that during this period we would hear of lesser amount of cases. However, this was not the case as the medium of interaction became relatively more casual, leading to an increasing room for inappropriate undertones.

A few broad examples of such instances could be sexting. It usually does not start with outright sexting rather, messages that are more personal. These can be questions like “Are you alone?”, “What are you eating?” etc. Due to the nature of these being relatively harmless, the person might have the tendency to reply to them in a polite manner. While these might not be downright inappropriate initially, they often tend to transition to questions that make survivors uncomfortable like “Can you turn your video on? I really want to see you”. The survivor might be pressurized into thinking that there’s no harm to this as they have been associating on chat for a while and may agree. It can therefore be a spectrum of behaviours that starts from appropriate to personal, to highly personal, to inappropriate and finally sexual harassment and we have noticed such a trend on a lot of texting apps like WhatsApp, Telegram etc.

Additionally, we also receive complaints where people carry themselves inappropriately. It is understandable that people are being relatively casual due to the fact that only the part in front of the camera is visible. All of us have only our upper portion dressed in a formal manner. Accidental instances where people get up and present themselves in a way that is not acceptable would not be downright sexual harassment. However, when someone deliberately goes out of their way to make the participants uncomfortable this will not be the case. We have received a complaint where an official had a poster of supermodel who was skimpily dressed in a corner of their room. He would intentionally angle the laptop in a way that this poster would become more evident during online meetings with female colleagues. It was almost as if he would be deriving pleasure from them feeling uncomfortable and squirming.

Further, instances of cyberstalking have been rampant. There are a number of ways doing this. Constantly, checking the WhatsApp last seen status, tracking one’s activity through their social media handles, making fake accounts to send inappropriate content has been quite common. An interesting instance is when people will send something outrightly pornographic to gauge the other persons reaction. Once this is done, they would resort to always saying that their account has been hacked and it wasn’t their fault. The recurring use of bad language has also been reported. In professional relations, specifically online, curse words might be deemed acceptable by people due to their repeated usage in daily life. However, they are also inappropriate and can be considered as sexual harassment in professional relationships.

Finally, sexism is something I would really want to talk about and put great emphasis on. It is an extremely underrated part of sexual harassment. During these times of the lockdown traditional gender roles of occupation and carrying out chores have become quite subdued due to the balance of managing housework etc and professional work. The entire idea of work-life balance has been challenged. At this point of time, when people jokingly say that “It’s very difficult to work with woman since they balance professional and household work” it is inappropriate. We had a case where a man joined a Zoom meeting 5 minutes late as he had to start his son’s online class on the computer. He had already informed his manager about the same. However, when he joined the meeting, the manager said “Kyu, biwi ke pallu se chut gaye?”. Such statements that assign gender roles and are inappropriate have the tendency to make the work environment hostile that allows sexual harassment in the future.

Q. In examples like angling the camera inappropriately, what about the argument that it was a mistake and unintentional. In your experience, have you felt that online sexual harassment as a concept is harder to grasp by survivors and/or more difficult to prove?

I am going to answer this question by dividing it into two parts. The first part would relate to perception of the act. I have found in the course of my experience that women tend to be extremely forgiving to a point where I start questioning why they do so. We have been culturally schooled to compromise and get used to it. We don’t realise when we stop standing for ourselves as a result. I am glad when someone comes up to me at the first point of harassment. However, it is a very rare occurrence, I have hardly seen anyone come up to us in a case that might seem accidental with a complaint of sexual harassment. Usually, a person will doubt their own experiences in the first time that it happens. They will evaluate and question whether this happens to the people around them on maybe the second instance. Finally, at the third instance or so, will they take some action. Even this might not be in the form of a formal complaint, but a verbal reprimand.

The second part relates to the proving of such a claim. I would actually say that online cases are easier to prove but it depends on the situation, of course. If we’re talking about sexting, unwanted friend requests, or unsolicited phone calls, people can preserve the evidence through screenshots, call logs etc. It is tougher for a person to describe an actual instance like sitting in a cafeteria with an individual, where the person with them makes an inappropriate advance at them as the survivor would have not reacted in a very expressive manner then. That actually becomes tougher to prove. What I am highlighting here is that, in cases of online harassment where people can store evidence sexual harassment complaints are easier to prove.

In group contexts, calling out problematic behaviour also becomes easier in a virtual atmosphere. This is because of the possibility of not being face to face makes it easier to articulate your disapproval in a more subtle way which would not be possible in an offline setting. However, in large platforms like webinars, virtual online classrooms instances of people playing pornographic clips or using fake accounts to speak inappropriately are harder to prove.

Let me also talk about ascertaining sexual undertones here. When there is inappropriate behaviour, people often say that this behaviour might be inappropriate but can we consider it as sexual? This is because of our difficulty to understand what sexual means and the bias towards us interpreting the meaning of sexual as the act of sexual intercourse which is incorrect. Sexual itself means sex related.

This will become clear after I refer to my experience of drafting the law with National Mission for Empowerment of Women in my capacity of Senior Project Advisor for gender rights, gender-based violence and law enforcement for women. On translation of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘PoSH’) to Hindi, this misconception is resolved. In the Hindi version, sexual is referred to as laingik that means gender, and does not mean yaunik which refers to the physical act of intercourse. The moment you’re able to establish that a person is treated in an inappropriate way on account of their gender it will be considered as sexual harassment and within the purview of the Act. While reading through complaints, we often find that people initially come up with a claim of mental harassment but after further scrutiny we realise this was sexual harassment due to the very fact that this person was treated this way because of their gender.

Q. If you were to advise people, specifically youngsters on how to seek consent in online platforms, what factors should one keep in mind? In an actual scenario, it might be easier to understand consent through the lens of verbal cues and body language. However, this is not so apparent in an online situation such as sexting.

Consent is a can of worms. The simplest way to explain it is through seeking express consent for an express act. If one is drunk or gives uninformed consent then that does not stand as valid consent, so you cannot go ahead with that act. With reference to the question asked, interpersonal relationships are to be looked in a manner where even the slightest of discomfort for an act like sending nude pictures should be enough to ascertain that one needs to stop. Once you ask twice, you are not getting free consent, you are pressurizing at this point.

There is a greater need to focus on the source of the request rather than focusing on the survivor’s way of dealing with this ascertainment. Our society has functioned in a way where we have always put much more onus on the target through statements like “She could have said no”. We fail to realise that in interpersonal relationships the person feels pressurized in different ways where she might not be comfortable with saying no. To exemplify this, I will compare this to a relationship with unequal power, like a workplace superior-subordinate setting or a student-teacher setting. How many people can actually say no in such a scenario? Therefore, to understand consent, we need to step back from the target and focus on the source.

Particularly from the focus of a relationship where there is unequal power, we need to understand whether the act for which consent is being asked for is a valid request or not. For example, I am a manager and I am calling my subordinate for a briefing at an odd hour in the night. The first question I need to ask myself is whether the call is really urgent or it can wait till tomorrow. If there is the slightest chance of it being possible the next day, that’s where you stop. In a case where it is actually urgent, it would be better to first drop a text to ensure the person is comfortable or not. In the direst situations, it would be advisable to at least start with an apology and explain that it was an emergency. Then, the source needs to go back and think, whether this apology-emergency situation is a recurring scenario or not? If this is the case, then the source is merely using the apology to excuse their inappropriate behaviour. Therefore, particularly in a virtual platform, if the source starts looking at themselves and is given sensitization, we will find that this issue of consent might get solved to an extent.

In certain cases, the consent required is itself for an unlawful purpose, like a boss sexting an employee. It seems absurd and inappropriate to even ask for consent here. Even if given, it is not necessary that this was freely given. No one can consent to an illegal act.

Q. In the current scenario, most of our college spaces have moved onto a virtual platform, if any untoward activity happens with someone virtually what redressal do, they have? Does a virtual incident come under the definition of campus?

Obviously the UGC Regulations did not envisage as the times we face are unprecedented themselves. However, there are open ended statements and definitions that will still allow this situation to be considered. The definition of a campus goes on to talk about the extended campus. It includes aspects like transportation, field trips, internships which do not entirely envisage these platforms.

However, right to the end, the umbrella clause, states “and such other activities where a person is participating in the capacity of an employee or a student of the Higher Education Institution ‘HEI’ ”. A person in an online class/webinar is hence participating in the capacity of a student and therefore the regulations will be applicable. This is my understanding of this clause. Additionally, all civil laws which are related to sexual harassment are beneficial in nature which entails that courts will usually give a wider interpretation to these legislations for an extended applicability. Therefore, forums like online lecture halls, classrooms, study centres where students study virtually will end up falling within this definition.

Q. Can an IC hold virtual proceedings and take cognizance of virtual matters? Further, are the IC’s in the HEI’s even in the position to conduct them online?

Whether the law envisaged it, I don’t believe so. As mentioned earlier, this is an unprecedented situation that no one saw coming. However, we are also considering this period as the ‘new normal’, we need to take tools within the law to match it with this current situation. Is the law stopping you from taking a WhatsApp or email complaint? The only mandatory requirement is that the complaint be in writing and nowhere does it specify the mode. It can very well be in a digital format. Once you receive it, you can call in the person and invite them to maybe a virtual meeting and help them put down more detail to their experience through an enabling conversation. If business, organizations and courts can run virtually, I do not see how IC’s cannot have virtual proceedings. I am myself doing at least 1-2 proceedings on a daily basis as an external member of different ICs. This is not something that cannot be ignored right now as overlooking small things can lead to huge problems.

The other part is regarding how you legally handle the situation. All an IC needs to do is figure out how to handle documentation virtually. Email is a solution that can work. I do not entirely feel recording is a viable solution as people tend to breakdown during the proceedings and people can misuse the information from the clips and put them in a wrong context which may be harmful to the survivor. However, an experienced external or IC member may write down notes that can be later typed down to verify the survivor’s deposition. We have done evidence examination through screen sharing of chats, documents etc which shows how technology is helpful and we need to learn to adapt and find new ways. Definitely, there are problems with regard to cross-examination. Here, we need the Code of Conduct and PoSH policies to become more robust. This is why we keep telling organisations to make changes to take care of the situation. Some changes can be that instead of making cross examination face to face as required by law, you have the process through written interrogatories where there is an exchange of question and answers between the IC and the survivor Common sense is therefore, I feel the most appropriate way of tackling this situation.