Aiming to make work spaces safer for women, the bill makes it abundantly clear that "it shall be no defence that the sexual benefit was derived with the consent of the victim".
In a first, the Jammu and Kashmir administration, currently under Governor’s rule, instituted amendments to state laws, making “sexual exploitation of women by people in positions of authority, having a fiduciary relationship or public servants,” a criminal offence.
This makes J&K the “first state in the country to have an explicit law banning sexual exploitation of women.”
It is through amendments to the Jammu and Kashmir Prevention of Corruption Act and Ranbir Penal Code and Evidence Act, J&K, that the administration under Governor Satya Pal Malik has criminalised “sextortion”.
As per the amendments, “any persons in a position of authority or in a fiduciary relationship, or a public servant who abuses such position or fiduciary relationship to employ physical or non-physical form of coercion to extort, request or demand sexual favours from any woman in exchange for some benefits or favours that such person is empowered to grant or withhold shall be guilty of offence of sextortion”.
Moreover, the law makes it abundantly clear that “it shall be no defence that the sexual benefit was derived with the consent of the victim”.
Punishment for the offences ranges from three to five years of rigorous imprisonment with a fine. Also, these amendments clearly state that the offence is “non-bailable” and “not compoundable”.
The administration has passed these amendments in the wake of a recent order that the Jammu and Kashmir High Court passed earlier this year in October.
In its order, the court directed the administration to look into the possibility of introducing new laws or amendments to existing laws to criminalise “sextortion”.
According to this Live Law report, the court’s rationale lay in the belief that sextortion “lies at the intersection of sex and extortion under the overarching ambit of corruption”. Instead of money, sex is the “currency of the bribe”, according to the report. In other words, sextortion is nothing but “an institutionalised system of blatant abuse of power”, read the judgement.
“The underlying idea is the element of quid pro quo where the perpetrator demands and accepts the sexual favour in exchange for a benefit that he is empowered to withhold or confer. The imbalance of power between the perpetrator and the victim allows the perpetrator to exert psychological pressure, which most significantly is not very different from that of monetary corruption,” read the judgement.
The court goes onto observe why it’s “imperative that the illegal acts, unwarranted demands and in appropriate contacts are given a legal nomenclature, clearly defined and also made specifically punishable in law and that the critical vacuum in the legislation in this regard is immediately addressed.”
Going by the court’s definition, “sexual favours” range from “sexually suggestive conduct, sexually explicit actions such as touching, exposure of private body parts to sexual intercourse, including exposure over the electronic mode of communication”.
Having said that, there are a couple of critical issues that require redressal.
For starters, India already possesses a robust law that addresses sexual harassment and rape.
On top of that, there is the fundamental question of consent. The bill makes it abundantly clear that “it shall be no defence that the sexual benefit was derived with the consent of the victim”.
Does it leave men in positions of authority vulnerable to harassment from women working in the same space with whom they once shared an intimate relationship?
This is a complicated question, and there are no easy answers. But that doesn’t necessarily mean exploitation doesn’t happen in other scenarios where the accused and the victim are not necessarily in an intimate relationship.
“Almost all laws are susceptible to misuse. But just because people are falsely accused of murder or financial crimes, no one seeks to de-criminalise murder or money laundering,” said advocate Raghav Awasthi to the Times of India, on the subject of marital rape.
Moreover, in a recent study on online sextortion, whereby disgruntled former partners or hackers threaten to release sexual images or any related material, to extort sexual favours or money, a Brookings Institution found that 90% of the victims were female.
In such scenarios, if a woman raises a complaint, societal attitudes often dictate that it’s the women’s fault. ‘Why did she send those photos or videos? ‘Is she a woman of loose morals’? ‘Why did she engage in sexual favours with her superiors at work’?
This stops many women from coming out against the perpetrators of these crimes, and thus a law against sextortion seems necessary.
“Indian laws don’t define sextortion per se and are, hence, inadequate in combating a serious crime such as this. A specific and clear definition of sextortion has to be included in the Indian Penal Code. Until the law evolves to specifically define and sufficiently punish sextortion, it will remain unacknowledged, with the legal recourse path blurry,” write researchers from OP Jindal Global University, in an April 2018 column for The Hindu.
Are the recent amendments attempts at instituting corrective measures in the workplace to ensure women don’t have to endure society’s misogynistic attitudes and can ply their trade in a safe working environment?
Having said that, the punishment for rape is much more stringent than the one for sextortion.
Also Read: #MeTooIndia: Sexually Harassed at Work? Here’s How You Can File a Complaint
So, if a woman is coerced into sexual activity with her superior, does she charge the accused with sexual assault or sextortion (corruption, professional misconduct), where the punishment is lighter?
Consent in the technical sense does not matter here. What’s the difference between sextortion and sexual assault/harassment? Who has locus standi to file such complaints?
These are questions that require greater clarity.
(Edited by Vinayak Hegde)