Privacy: The missing link in the discourse on sexual harassment

Explicit jokes, sly innuendos or gender-specific insults -- do these really amount to sexual harassment? Should employers adjudicate on such cases as such? To understand why and when, one needs to understand the concept of privacy in all its facets. A lawyer explains.

This article is part of a special series: Safety of women in Indian cities

The Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 was passed by Parliament to address gender specific discrimination in the workplace. The law codified the  Supreme Court’s guidelines in the Vishaka v. Union of India case, but has been marred by implementation and compliance challenges. Sexual harassment of women continues in the workplace, remains under-reported and when reported, is not immune from failed dispute resolution processes managed by the employers..

The reasons for the law struggling to deliver redressal to its intended beneficiaries are many.  But what stands out is while the so called workshops to sensitize men and women about what is sexual harassment and how to prevent it do an effective job in conveying what is sexual harassment and what is not, they do not address the garden variety acts of sexual harassment, where actions and omissions tread on the thin, grey line between acceptable and unacceptable behaviour. Like stereotyping of women, jokes around a menstruating woman, sly innuendos or gender specific insults.

If an employer truly intends to sensitize its work force about preventing the more subtle forms of sexual harassment, it can only do so by having a more holistic training program, which must, above all else, demystify the concept of privacy.

The Supreme Court verdict in  Justice Puttaswamy v. Union of India brought in new facets of privacy and opened a range of possibilities. Our conventional understanding of the definition of privacy has been abstract, expressed through the limited lens of secrecy. But privacy is the fundamental consideration for the social contract that defines our society and the nation itself. It is synonymous with the balance sought to be struck between the needs of the individual and the larger interests of society. It is the last line of defence against societal intrusion into the individual. So while secrecy is a part of the right of privacy, it does not by itself define privacy fully.

The concept of privacy stands on three pillars: Autonomy, Integrity and Boundaries. Autonomy is analogous to ownership and assumes that sentient beings are the owners of their body and mind. The right of ownership also carries with it the right to exclude others from accessing or affecting that which is owned.

“Integrity” represents the assumption and the right to the wholesomeness of the body and mind. The law sees the human body and mind as a grand edifice and gives it protection against defilement or even the touch of those who are not authorised.

The last term Boundary represents the virtual walls we build around ourselves, to exclude those we wish to exclude and maintain the integrity of our body and mind against those who seek to cause it harm. 

The concept of boundaries lies at the heart of the discourse on sexual harassment. People forge their relationships by granting limited permission to  others to breach the boundaries they have defined for themselves. The most important lesson around boundaries is that how we draw these boundaries or imaginary walls or how we choose to allow people access through those walls, can be completely arbitrary. The arbitrary right to exclude or impose arbitrary restrictions on persons seeking access to our body and mind, flows from the concept of autonomy over body and mind and the right to maintain the integrity thereof. The emphasis on “No means no” flows from the right to draw boundaries arbitrarily and impose conditions in an arbitrary manner to allow access through those boundaries.

However, we may choose to modify or alter those boundaries. A man and a woman may start off as total strangers, boundaries drawn up, but over time may choose to lower their boundaries and become anything from friends to sexual partners. And what makes the lowering of boundaries possible is trust.

Trust evolves in a relationship through a slow process of information exchange and as information exchange increases with lesser restrictions and greater intensity, trust also increases. But if information is either solicited or offered voluntarily, without an appropriate context to that relationship or in a manner that is detrimental to the person’s body or mind, it may have no impact on the walls at all, or may even strengthen those walls. An extreme example of when voluntary sharing of information without context is counter productive, is that of men sending pictures of their genitalia to random women. The recipient of the unsolicited image is likely to strengthen her boundaries by reporting the sender, as opposed to sharing pictures of her own genitalia. 

In other words, as humans we put up strong walls against someone we don’t know and gradually demolish those walls as we get to know that person better and at a certain threshold of trust, the walls may come down completely. We negotiate our access through the walls through communication based on empathy and sensitivity. 

In other words, we can only hope to breach boundaries of others if we respect their autonomy over their body and mind and their right to that integrity. Yet, despite all that sensitivity and empathy, the other person would still be justified in asserting and maintaining their boundaries. The human condition and the law allow for this right and allow for the exercise of this right in a manner that may very well defy the subjective logic of other people.

An understanding of autonomy, integrity and boundaries and therefore privacy leads to the annihilation of a lot of excuses for sexual harassment, best illustrated by the following example:

 “She smiled at me all the time, spoke to me through the night over the phone and exchanged her most intimate thoughts. So how could she refuse to sleep with me?” The answer is the lady has the right to draw arbitrary boundaries. While she lowered the walls to waive off her intellectual and emotional privacy, she has the right to keep the wall up around her bodily privacy. Though the decision to waive off her intellectual privacy but maintain bodily privacy may seem arbitrary to others, she is fully within her rights to that arbitrariness and the law too upholds it. 

Similarly, when a woman is a colleague in the workplace, the context of the relationship is one of professional collaborators, involving the capacity and ability of the two workers to collaborate and contribute to the company. Physical attraction or appearance, unless the industry is one where it is relevant (such as fashion or entertainment), is not relevant to the professional relationship. So when the male co-worker compliments the female co worker on her beautiful appearance, he is offering information in a relationship where the context does not justify compliments about appearance. The chances of the woman strengthening her boundaries by reporting the compliment to the internal complaints committee is therefore significant.  

The three facets of privacy, autonomy, integrity and boundaries can be universally applied to caution against every kind of violence, physical, emotional and sexual. The failure to embrace these concepts as a way of life lies at the heart of our problems with combating violence. And if it is accepted as a way of life, it presents a perspective that will help understand how to adjudicate cases of sexual harassment.

So if employers are truly serious about creating an inclusive and safe space for all genders to work together, they cannot do so without first inculcating in their personnel the wisdom and lifestyle of the right to privacy.

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