The Tehelka precedent

Media outrage has succeeded in filing an FIR against Tarun Tejpal against the wishes of his victim herself. Many are looking at this as rule of law. I am terrified of laws that have no regard for the victim when it comes to filing the case, as it is a “crime against the state”. Assuming the “sense of justice” rampaging in the media wins totally, and the victim’s cooperation is not required to sentence him, as the emails made public already have enough material, you can have Tejpal in jail for 10 years with what has already been done.

Here is why that is a horrible thing.

Firstly, whoever thinks that drunk (or not drunk) molestations and gropings in office parties or even in routine workings of offices are rare have been living under some rock somewhere. Not only is it exceedingly common, it usually faces no justice. A woman who makes too much of a noise gets fired. And this is true in media as well. Rajyasree Sen points out in Newslaundry how media’s response to sexual harassment among themselves has been and how it is easier for a woman from similar class and circles to demand that the perpetrator account for his actions, than the many unknown professionals. It is important that such behavior have organizational accountability if all sexual harassment at work is a problem and not just Tarun Tejpal harassing this journalist. Which is what the victim is demanding.

Instead, we have something very worrying. We have frenzied calls for arrests and FIRs and political protests outside Tehelka’s office and political interference out to nail Tejpal for his crime against the state. Goa police has registered an FIR against him for crimes with a minimum sentence of 10 years and maximum of life in prison. So I am just going to assume that Tejpal is not going to get away now, and focus on the larger picture.

What we have here is private communication being made public that has fueled a media frenzy and an FIR against the explicit wishes of the victim that will lead to her testifying in court leading to a punishment of at least 10 years for someone whom she wanted an apology from along with a workplace sexual harassment committee intervention for. If she refuses to stand by her accusations, she will forever be on record in court documents as someone who made false accusations (MRAs are  going to love this one). Or she has to nail Tejpal.

At this point, it is important to note that relationships are not black and white. If you respect someone who wrongs you, it is not unnatural to want the violation acknowledged and denounced without wanting to destroy the person. It is not unnatural to not want to harm the person who created a space that means a lot to you. A relationship has many aspects – even a working relationship – and no, this isn’t any attempt to paint a “consensual sexual relationship” here – which it obviously wasn’t. But it is not a unidimensional thing.

Is the violation right? No it is not. But the idea that a bunch of strangers can read a leaked email and decide that it was rape and thus needs state to intervene against victim’s wishes is way presumptuous. Also, regardless of what Tehelka’s original stand was or appeared, they are following procedure now. Perhaps this was forced by media outrage, or perhaps Shoma’s initial reaction was about her figuring out what to do, beginning with accepting Tejpal’s recusal and taking over control. The process now seems to be in alignment with exactly what the girl demanded. Which is how it should be.

Another aspect here is a right wing vendetta playing out at the cost of the victim. The people who see nothing wrong in excusing misuse of power by state by claiming that the one it was misused against hadn’t complained are unbelievably traumatized by the wrong done to someone they would till a few days ago call a “sickular” for simply working in Tehelka – an organization they bitterly hate. Some right wingers leaked the girl’s identity in social media – something that is guaranteed to feed the anger against Tehelka, at the cost of the victim’s legal right to anonymity. They are apparently so traumatized that her seeking justice with demand for actions against the perpetrator don’t matter, the perpetrator must be arrested right now. These are the same people that called rape allegations against Asaram Bapu a “conspiracy” and were defending him with all their might in spite of mounting evidence. So yes, I totally believe their humanitarian objectives. Particularly at the cost of a victim they don’t much care about.

But this is still not so bothersome for me. The right wing is what it is, and however they are, they are an unfortunate fact of India that cannot be wished away. Tehelka is an organization well aware of human rights, and I have no doubt that they will have to institute a fair and transparent inquiry for the sake of their own credibility. Tejpal going to jail for a crime he did doesn’t bother me. I have no doubt at all that an FIR is what will happen in the unlikely chance that the victim fails to find justice within the scope of that committee.

Media outrage tends to look at outrages as unique from prevailing crime patterns and magnify dramatic views to the point something special must be achieved for each case being showcased. We judge the case and advocate actions that would fit each case to allow the vengeance we want, without realizing the larger picture. For example, the hasty and little debated lawmaking post the Delhi Gang Rape have given us a law that allows a victim’s private email to someone detailing her ordeal to be used as a proof of “crime against the state” that must be punished with full dramatic spotlight against her wish. Essentially, it forces an already traumatized woman to cooperate in getting justice for the state for a crime she suffered. But can we look at our recommendations and honestly say they will be useful or appropriate for dealing with most sexual exploitation in offices that anyone comes across? What does what is going on mean for thousands of women suffering from inappropriate advances at work?

What is alarming me deeply are the implications for workplace sexual harassment. Can a woman suffering from sexual harassment at the workplace confide safely in anyone, particularly if she is working at a place that has many critics, if one leak can change her status from someone seeking help and restoration of her violated dignity to someone forced into a long drawn legal process that still does little to restore her dignity at her workplace? Can she ask her seniors for redressal of her grievances without risking an escalation she may not want? Can seniors receive her concerns freely if they must be aware that they may be implicating themselves and their organization by anything they say? In a culture used to firing women for being inconvenient if they complain of being exploited, what does it mean for women to be forced into conflicts with people in their workplace? Will women be believed when they complain of sexual exploitation, if it can snowball into a legal nightmare before the organization can even attempt to address her grievance?

It is immature to dismiss the need for workplace interventions that can defeat the perpetrator in the space he abused to violate someone with a right to it. In my view, Tejpal having to step down – whether temporary or permanent, voluntary or pressured – endorses the victim’s right to thrive in her workplace regardless of the crime against her and her confrontation of it and proactively removes what she found hostile. This creation of an enforced safe space for the victim (instead of the traditional sacking for complaining) is not being understood enough. This is immediate and important and sends out a message organization wide that you cannot get away with appropriating women’s rights here. No matter who you are. What he is punished as a result of the committee or law is additional. What is more, the sexual harassment committee requires the EMPLOYER to file a case against the perpetrator if a crime is found. Would it not be a bigger punishment for Tejpal to be sued by the organization he created for his actions? It is not the “escape” that it is being termed.

This process is important to play out in the public eye. The responsibility of the organization to act on the grievances put before them cannot be stressed enough, because it isn’t simply about punishing a perpetrator, but it is about work spaces that set the record clear that they will not tolerate wrongs against women. This social intervention is important to happen in any space where women get exploited, including Tehelka. If the high profile nature of this case serves to stress that, the impact may reach wider than Tejpal, Tehelka and this woman as well.

What does this frenzy mean for the men? Can a woman misunderstanding their intentions writing an angry letter to her friends get exploited by a competing organization to destroy their lives? For that matter, if a man misbehaves with a woman, will he apologize if his apology becomes proof of his guilt that can put him in jail for 10 years? Will the stakes of never apologizing no matter what be created?

What does it mean for organizations? Can they unhesitatingly accept complaints of sexual misconduct if this means that it will by default open their seniors to extended legal battles? Can their investigations fairly record wrongs or reprimand perpetrators, if those will be used in courts regardless of whether they succeed in delivering a sense of justice for the victim?

Finally, while it is important that victims are not silenced and thus, all wrongs known are investigated, how “just” is it to force a method of justice that is not acceptable to the victim, that reduces the likelihood of success of the method of her considered choice that she believes will bring her justice?

For women without powerful connections, what is our right to impose investigations that are not just lengthy, but have a long and known history of backlash against the victim when the victim does not want it? Or should this only be done if *we* are outraged enough? Has our state shown *any* competence at protecting victims from social backlash – whether of the “stigma” kind, or of the “problem complainer for organization” type? Who are we to say that in addition to her trauma, the victim must bear this for our sense of a justice, which may deliver nothing that she wants or needs?

Are we seriously saying that victims of sexual crimes have an obligation to further endure whatever is needed in order to get justice for “crimes against the state”?

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