Same Gender Sexual Harassment

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Same Gender Sexual Harassment

Written By: Shalini Gupta

INTRODUCTION

Sexual harassment occurs when a person subjects another person to unwanted conduct based on his or her sex. As per IPC, when a man commits physical contact and advances involving unwelcome and explicit sexual overtures, demand sexual favours, shows pornography against the will of the woman, and makes sexually coloured remarks includes sexual harassment.[1] In IPC, sexual harassment between the opposite gender has been describing and the penalty is given too. There is another form of sexual harassment is known as quid pro quo harassment which happens when employment gets extra benefit in a company for sexual favours.[2]

This is very common these days. These days, men are also victims of sexual harassment. But these days, sexual harassment occurs between the same gender also. This happens generally when a lesbian woman commits sexual harassment against another woman or a gay man commits it against another man. The U.S. Supreme Court has clearly held that sexual harassment is illegal under Title VII of the Civil Rights Act, 1964 whether committed by opposite gender or the same gender.[3] Title VII of the Civil Rights Act, 1964 provides a cause of action for victims of such sex discrimination to obtain equitable relief, compensatory, or punitive damages.

CHALLENGES FACED BY MALE VICTIMS

When any woman is sexually harassed, her family members did not allow her to file a complaint against the same because society thinks that if a girl is raped, the reputation of the family is spoiled but when any male is sexually and mentally harassed, they are also advised to keep quiet about the incident as the society expects that man should carry their masculinity with them.

Many people believe that sexual harassment is limited to women only. The boy victim also thinks that if he files such cases then society will make him a topic for a joke that he does not have the power to fight for himself or he starts crying like a girl as the society think that crying is the sign of a weak person. If the man is ready for filing the complaint, then the police officer makes a joke of him while registering the case. In India, there is no law for the protection of men against sexual harassment. Justice Krishna Iyer states that ‘A murderer kills the body but a rapist kills the soul.’[4]

POSH ACT

In 1990, there was news in Rajasthan regional newspaper that a woman who was a social worker was gang-raped by men in her workplace because she tried to stop child marriage and she filed an FIR against them. In 2013, after formulating Vishaka guidelines, the Supreme court passed the Prevention of Sexual Harassment or the POSH act.[5]

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act), 2013 passed by the Government of India with an aim to make a safe workplace a woman’s legal right and all forms of sexual harassment at the workplace illegal. The Act became effective on December 9, 2013.[6] The POSH Act mandates that every organization or company should formulate a policy so that no sexual harassment could take place there. If the company or organization does not follow this rule, then there is a penalty of Rs. 50000/- or cancellation of business license as per POSH Act. in addition, the court can order that company or organization to pay in lakhs to compensate the victim.

The definition of sexual harassment under the POSH Act does not specify that only the man is responsible for sexually harassing the victim and the woman can only be a victim. As per section 2(M) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 referred to as POSH Act has termed everyone respondent irrespective of gender.[7] According to a 2015 survey, 20% of women were harassed by female co-workers.[8] This number is that which were reported by them. In half of the cases, women do not report due to the stereotypical mind of society. Women think that if they report the case of sexual harassment committed against them, then their family will not allow them to work outside the home or the company will not give them a job as they think that the company’s reputation is being spoiled.

In the case of Dr Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College, and others (2021), the Calcutta High Court states that sexual harassment can take place by the same gender, so the POSH act of 2013 can maintain the dignity and modesty of any sufferer irrespective of gender.[9]

CONCLUSION

The issue of same-sex harassment may serve as an interesting nexus. The Calcutta High Court laid down this landmark judgment and cleared that sexual harassment is equally considered to be an offence if committed by man on man, a woman on man, or woman on woman. Now, it is on the victim to be careful in all the places and be aware of their rights.


REFERENCE

[1] Indian Penal Code 1860 § 354A.

[2] Sex (Gender) discrimination and Harassment (including sexual harassment), MAINEEMPLOYEERIGHTS, https://www.maineemployeerights.com/sex-gender-discrimination-and-harassment-including-sexual-harass.html.

[3] Sachi Barreiro, Sexual Harassment in the workplace, NOLO, https://www.nolo.com/legal-encyclopedia/same-sex-harassment-know-your-rights.html.

[4] Rafiq v State of U.P., A.I.R. 559 SCC 1981.

[5] Sexual Harassment at the workplace: what does the POSH Act say, WOMENSWEB (Apr 19, 2018), https://www.womensweb.in/2018/04/posh-act-on-sexual-harassment/.

[6] ELEARNPOSH, https://elearnposh.com/posh-act/.

[7] Aritra Singha, Same-gender sexual harassment complaints are maintainable under POSH Act, says Calcutta High Court, FREEPRESSJOURNAL (Jan 14, 2021), https://www.freepressjournal.in/india/same-gender-sexual-harassment-complaints-are-maintainable-under-posh-act-says-calcutta-hc.

[8] Sherri Gordon, How common is female sexual harassment, VERYWELLMIND (Jun 25, 2020), https://www.verywellmind.com/how-common-is-female-to-female-sexual-harassment-4134990.

[9] Supra note 7.

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