I am sure the first thought that comes to your head is along the lines of why are we going back to this dated event of #metoo again? Haven’t we already juiced all the juice out of this as a community? You would not be wrong on the first account, but very much so on the second one. The core concept of “Me too” has been around since the 1960s; in fact, it was first brought to the foreground of mass consumption through the protest demonstrations in the United States by Kathie Sarachild. The term used at that time was “conscious raising”. They used this to contextualize their own experiences and the hidden stories in their own communities. They asked a very simple question: “Would you give an example from your own life as to how you have undergone oppression?” The aim behind this activity of talking about their own experiences was firstly to understand that the oppression that each of them have experienced is not an isolated incident which in turn created a sense of belongingness for women who were suffering in isolation and to create a counter narrative of how the society is working in general. The term “conscious- raising” was academically explored by Katherine Bartlett in 1990 in her article in the Harvard Law Review. She situated conscious-raising as a cog in the machine of a critical theory which has come to be known as feminist legal method.
The #METOO movement has been described as a social movement which in its essence is a form of protest where women are naming their molesters and harassers in the social media which they could not do in the past due to various circumstances. These circumstances are those of social pressure and stigma invoked from the society. The nature of #METOO can only be stated as that of a social protest against the exploitations which women have suffered. A woman associating herself with the #METOO hopes to shame her exploiter and hopes more so that in doing so some adverse action may be taken against him. But this “adverse action” in any way does not have a legal connotation. The maximum that the #METOO aims to achieve through its informal means of engaging with the problem of rape, harassment and molestation is to denunciate the person accused of having done such an action by the society in general by exposing them to shame and suspicion. It is definitely a form of social sanction but not of legal.
The core question that needs to be asked is that of “why did the women feel that the recourse provided to them by the law was not helpful enough that it led them to bring this out into the public?” The #METOO arose as a consequence of the feeling of non-functioning of due process. But is that so? Have the courts stopped functioning? Or have the police stations stopped registering FIRs? No, the formal mechanisms established for the functioning of due process are very much still in existence, but then what is missing? Here lies the issue that needs to be addressed: the due process as functioning in courts does not actually address the issues that women face in the tangible world which led them to wash their linen in public by means of #METOO. But we know that due process is functioning, and then the issue that becomes pertinent is that the “process” of adjudication is missing the logic which is needed to ensure that JUSTICE and FAIRNESS is delivered to these women suffering under their exploiters. This “logic” that we talk about is none other than the Feminist Legal Method. The “fairness” that mainstream legal methods boast of having is moot from the start due to the structural biases that inhabit the very “impartial” processes of the courts as we know them. Before a woman even enters the Police Station the bias is already set into motion against her.
Bartlett proposes that due process as it is practised in the legal arena is not “fair” to begin with. What does it mean and how is law different when a feminist addresses it? The first step of this difference lies in the acceptance that law is not neutral. The law is enforcing ideals that lie not in the favour of women as general. Just as there is a context for other things, the context of how law came to be, what the subtexts to it are, what is the interest it is protecting, whose biases it is protecting, all must be taken into account and taken seriously. Law is a superstructure of the patriarchal society and whenever we engage with it we must dismantle its biases. Having said that she says that a feminist also uses the same traditional tools of deduction, legal reasoning, induction, analogy, hypothe- ticals and policy, but along with these she also uses female reasoning and conscious raising as tools crafted specifically to neutralize the biases present in the legal structures.
Bartlett says: “Practicality of everyday must not be ignored for abstract justice” meaning that every case in the court must look at the context of the facts presented before it, not just the precedents. Female practical reasoning approaches a problem not from a dichotomy of two, not victim and abuser, not man and women, but as a dilemma that has multiple perspectives, contradictions and inconsistencies, while always keeping in mind that the end of this process is Justice, not a fast forwarded trial.
The connection between #metoo and due process is not one of negation but that of a litmus test. #metoo emerging as a social movement or social protest is the direct consequence of years of inability of the legal system to provide redress or even an environment where women feel safe seeking legal recourse. Despite this, we must not lose sight of the fact that the #metoo movement is a symptom of the problem; the error lies in seeing it as the cure. The solution to the failure of due process is more stringent adherence to due process, not less or in the case of how the due process works a revision of the logic of the legal system. A reshaping of the ideals behind the Practice of Due Process on the floors of the Court, but it must result in evolution of the methodology of justice delivery. The events such as #metoo and equal pay movements are symptoms of a deep rooted and timeless problem, which have to be addressed through both law and social activism. They are not mutually exclusive, but in fact complementary to each other’s growth.
- Pragya Singh