Sexual Harassment and the Public Woman
By Dina M. Siddiqi
(Forwarded by Shabnam Nadiya)
The frenzy of harassment, gang rape and subsequent suicides in the last two months has made it difficult to keep track of the specifics of each incident.
Simi
Fahima, Rahima, Indrani, Sabina -- these names and the horrific events associated with them have begun to blur into one another. In addition there are women, like the two garment workers who were raped in their rented rooms last week, whose names don't even make it into news reports. One of the most distressing aspects of such reports is the number of women and girls who have felt compelled to commit suicide in the aftermath of a violent and traumatic encounter. Raped women's recourse to suicide could very well be the result of cultural constructions of honour and shame which do not allow for the acceptance of such 'tarnished' women into the mainstream society. As an explanation, this provides a partial and tidy answer. It does not explain, for instance, why in her suicide note Simi Banu wrote that the kind of harassment she had to endure was "worse than being raped and left by the wayside." It could very well be that shifts in social, economic and legal discourses in the past two decades have allowed women like Simi to "opt out" of mainstream cultural ideologies of womanhood. By the same token, that it is precisely because some women are not willing to submit unquestioningly to notions of purity and pollution that violence against them has taken on new, extensive forms.
A student of Narayanganj Art Institute, Simi lived with her parents and three siblings in Khilgaon, Dhaka. By all accounts, she was a vivacious, independent and outspoken young woman who was also talented and ambitious. Simi helped supplement her family's limited income by decorating wedding venues and working as a fashion designer for a firm. The nature of her work forced her to keep somewhat irregular hours, and she often returned home "late" (that is, after dark), and usually unaccompanied.
Mahima
It is paradoxical but perhaps not surprising that the voices of the powerless are heard the most clearly after their deaths. Death offers a different order of safety, cruelly enough. The suicide of High Court Advocate Sangeeta Sharma in Andhra Pradesh, India on June 15, 2000, due to alleged sexual harassment by fellow lawyers, is illustrative. It indicates that the problem is not one of powerlessness in a straightforward manner. The Sharma case provides a critical reminder of how social power dynamics, in a highly gendered form, are played out to induce silence. Sharma sought legal assistance from a woman's group but refused to divulge in public the names of those harassing her, fearful of any reprisals on her and her young child. Unable to alter the situation of harassment she faced, Sharma ultimately committed suicide. She did, however, leave behind evidence of grave misconduct on the part of fellow lawyers and senior advocates. As with Simi, the victim of harassment felt protection and justice could only be attained in death. (The Indian Express Monday July 3, 2000. Online edition). My point is that Simi was not weak in a conventional sense. She was a strong, independent, and educated person who was aware of her rights under the law. She had sought advice from a woman's organisation. She threatened to lodge a case with the police. But as a working woman from a lower middle class background, she did not wield much social or economic power. The police not only did not protect her rights as a citizen, worker or woman but in the person of SI Bashar threatened to turn its frightening power against her. Local community assistance was not forthcoming either, it was firmly in favour of 'the boys from the mohalla'. Her immediate family could offer little but moral support, and even that was withdrawn toward the end. In the circumstances, Simi could hardly take threats of acid attacks and possible harm of family members lightly.
Simi intended her suicide to be interpreted as an act of protest and resistance, and a (desperate) means of capturing social attention. She ended her note by stating that hers was a sacrifice made to save other women from such an awful predicament.
Fayima
Available statistics indicate that the number of female suicide cases in Bangladesh has increased dramatically in the last few years. Simi's death only underscores the point. In this context, we are forced to ask: under what economic and social conditions does suicide become a woman's only available recourse for reprieve, protection and for protest? The simple answer is when no legal or social redress is any longer available to the individual. Simi lived in a city with a highly contradictory environment, one in which Valentine's Day has come to be celebrated with unexpected fervor (and consumerism) and couples can be seen wandering through the Boi Mela and other places walking hand in hand. Moreover, on a national scale women are exhorted to make a difference to the development of the nation, and the government (on paper, at least) promotes women's rights as human rights. Yet this is also the city in which a young woman can be literally hounded to death simply for going about her business, for making a living. Or a female student like Badhon can be sexually assaulted in public, as happened during the millennium celebrations on the Dhaka University campus, and later be blamed for inciting the attack because she was "out so late".
Where young women are concerned, public and private spheres constantly seep into each other, and private behaviour is invariably subject to public scrutiny and morality. In this way, community or samaj opinions regulate and reinforce dominant constructions of femininity. One of the elders at the shalish gathering just before Simi's death is said to have berated her: "This is all your fault. We have daughters too. Why isn't any one talking about them?" No one was talking about them because, unlike Simi, they conformed to certain social codes and norms. Simi's crime was to be young, single and female, and out in public, unescorted, "after dark." Therefore, she was no longer entitled to the protection forwarded to "respectable" women. This association between the public woman and promiscuity particularly implicates working class women, as any female garment worker knows all too well. Indeed, it is a cruel irony that work -making a living - is not a legitimate reason for women to be in public, to stay out late in Bangladesh. Of course a small number of highly visible women from affluent families frequently escape the limits of such ideologies of protection. Their class status, and the ability to travel around in the enclosed space of cars, confers on them a degree of protection; it allows these highly successful bankers, lawyers, professors and business persons to pursue their professions more or less unimpeded by such concerns.
What legal options were open to Simi? How does one prosecute such cases?.
One way or the other, Simi's was a case of harassment, sexual or otherwise. Legal definitions of sexual harassment vary widely. In some countries, it is defined narrowly and refers only to unwanted sexual advances or conduct. Legislation in other places is much more comprehensive. Notably, the bulk of sexual harassment laws concern the question of workplace conduct. However, for working women in Bangladesh, harassment in public is an added occupational hazard, one that is not always accommodated in legal vocabulary or in anti-harassment laws.
In Bangladesh, the Suppression of Violence Against Women and Children Act of January 31, 2000, for the first time made sexual harassment a criminal offence punishable by law. Section 10 (2) of the Women and Children Act states
Any man who, in order to satisfy his lust in an improper manner, outrages the modesty of a woman, or makes obscene gestures, will have engaged in sexual harassment, and for this, the above mentioned male will be sentenced to rigorous imprisonment of not more than seven years and not less than two years and beyond this will be subjected to monetary fines as well (my translation, emphasis added).
The Bangladeshi law is fairly straightforward, and deals with the expression of inappropriate sexual desire and conduct. In one sense it is quite comprehensive, as it is not limited to workplace conduct. But its language is limiting in other ways. It may or may not be possible to argue in a law court that Doel, Khalil, Bashar and others attempted to "satisfy their lust" and thereby "outraged the modesty" of Simi. However, one could argue that the hostility and attacks on Simi, although frequently expressed in a sexualized idiom, may have been more about her female transgression of existing gender relations than about overt male sexual desires and demands. (This is one reason for the extreme hostility confronted by most garment workers on the streets of Dhaka). That may be a sociological question the courts are not equipped to deal with. Nevertheless, the definition of harassment in the existing law is limited since it focuses entirely on threats that are directly or indirectly of a sexual nature. Most important in this respect, the law assumes implicitly that what is at stake is a woman's modesty, presumably sexual modesty. Once normative notions of modesty and femininity are introduced into legislation, potentially dangerous terrain is opened up. Interpretations of what constitutes modesty and "appropriate" female behavior are highly subjective and the legal protection of modesty can end up limiting rather than expanding women's freedom.
The European Commission offers a broader definition of sexual harassment that might be usefully drawn on in this context:
Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This includes unwelcome physical, verbal or non-verbal conduct. This conduct constitutes sexual harassment under three conditions: the behaviour must be a) unwanted, improper or offensive b) refusal or acceptance of behaviour influences decisions concerning a job and c) the behaviour in question creates a working climate that is intimidating, hostile, or humiliating for the person. (European Commission, 1991 cited in Timmerman and Bajema:423. Emphasis added.)
In the absence of similar legislation in Bangladesh, an alternative approach could draw on existing laws that protect every citizen's right to equality, freedom from discrimination, freedom of movement. A recent Supreme Court judgment from India is instructive in this context.
In the case of Apparel Export Promotion Council versus A.K. Chopra, (1999 SOL Case No. 36), a female employee of the firm complained of attempted molestation by her boss. The case eventually went to the Supreme Court which argued, among other things, that physical contact with the female employee was not an essential ingredient of the charge of sexual harassment, given that the statement made by "Miss X" shows that the conduct of the respondent "constituted and act unbecoming of good behaviour, expected from a superior officer." The judgment goes on to state:
It should be noted that the parameters of decency, modesty and moral sanctions are taken for granted here and assumed to provide a guide for appropriate masculine behaviour. This 1999 judgment took its cue from the landmark Indian Supreme Court case of Visakha versus the State of Rajasthan, in 1997. The Visakha ruling noted the lack of existing civil and penal laws for the specific protection of women from sexual harassment at places of work. In the absence of appropriate legislation, the Court took a proactive stand by issuing a set of guidelines to be followed by all institutions until appropriate legislation was enacted. The Supreme Court proceeded on the presumption that sexual harassment was a form of gender discrimination and violated the Fundamental Right to Gender Equality and Right to Life and Liberty as guaranteed by the Indian Constitution. Notably, the ruling made special use of international legal instruments, including the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Beijing Declaration, which direct all state parties to take appropriate measures to prevent discrimination of all forms against women. The ruling further noted that Article 7 of the International Covenant on Economic, Social and Cultural Rights recognizes a women's right to fair conditions of work.
The current sexual harassment law in Bangladesh provides a point of departure, even if its language is troubling. Working women face a double hazard, inside the workplace as well as on the street. There are no written codes for behaviour on the street and in any case 'moral codes of decency' are applied selectively. This is a social reality that must be addressed in the law. Moreover, sexual harassment laws need to accommodate forms of gender harassment which are not explicitly sexual. It may very well be that the hostility being expressed through harassment is a sign of male social power, not sexual power. Assuming that laws that refer to female modesty are inherently limiting, it is advisable to take a cue from the Indian Supreme Court judgment cited earlier, and stress the violation of a woman's right to equality, and freedom from all forms of discrimination. These are rights that are enshrined in the Constitution of Bangladesh. To fill lacuna in existing legislation, reference to international legal documents, including those of the International Labour Organization and CEDAW, to which Bangladesh is a signatory, can be made.
However, enacting progessive laws by itself will not suffice to change the situation. As we all know, it's critical to ensure that existing legislation be implemented and that those in charge of law enforcement be held accountable for their actions. By the same token, the efficacy of laws will be constantly undermined if social attitudes, especially widespread cultural tendencies of 'blaming the victim' in cases of sexual harassment, are not transformed. This requires, among other things, serious gender-sensitive training for those charged with protecting the rights of citizens, especially police personnel and judges. Women cannot expect legal or police protection if the authorities already assume "guilt" or "moral laxity" on the part of women complainants. Recall that it was only when Simi was confronted with what I have called "patriarchal collusion", that is, once she was convinced that she had been judged and sentenced by the community as well as the police without even a semblance of a fair hearing, that she decided death was her only escape. With another International Women's Day being celebrated this March, let us work toward providing alternatives other than death to women like Simi.
(The writer is Senior Associate, Alice Paul Center for the Study of Women, University of Pennsylvania)