The case, the court’s observations, and the responses of the public make for a good case study to gauge our collective understanding of consent and what constitutes sexual harassment at the workplace.

Malayalam producer Vijay BabuCredit: Facebook/ Vijay Babu
Voices Workplace Sexual Harassment Sunday, June 26, 2022 - 13:26

In April this year, a woman actor from the Malayalam film industry filed a complaint alleging that producer Vijay Babu had raped her multiple times and had also beaten and blackmailed her. Soon after, Vijay Babu flouted the law and made the name of the survivor public through a Facebook Live, and claimed that it had been a consensual affair. The producer, who fled to Dubai to evade arrest, was recently granted conditional pre-arrest bail by the Kerala High Court. While the court said that one should not expect “ideal victim” behaviour from complainants, the judge went on to add that consensual relationships “should not be converted into instances of rape”.

By her own account, the survivor in the case, a young and relatively new actor in the Malayalam film industry, has admitted that at least in the beginning, she had entered into a relationship with Vijay Babu under the promise of roles in films and marriage. “If she was ready to provide sexual favours for work, why is she now crying rape?” – this is the most commonly expressed response to the case, which also finds an echo in the court’s observations.

The case, the court’s observations, and the responses of the public make for a good case study to gauge our collective understanding of consent and what constitutes sexual harassment at the workplace.

How does the law define sexual harassment at the workplace?

According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication), namely:

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

A large section of the Malayalam film industry has been resistant to the idea of implementing the Act and constituting Internal Committees (ICs) mandated by law, claiming that the provisions cannot be applied to the field due to the temporary nature of employment and work. That is, film units are temporary workplaces that are set up and dismantled during the time a film is made, and aren’t permanent structures like other workplaces.

However, in March this year, the Kerala HC clearly ruled that the film industry was indeed a workplace, and that the 2013 Act extends to “any person employed at a workplace whether on regular, temporary, ad hoc or daily wage basis, either directly or through an agent including a contractor”. It is to be noted that the move came after the Women in Cinema Collective (WCC), a film body that has been fighting for gender parity within the industry, went to court following the state government’s inaction in implementing the Act. Further, the state government has been dragging its feet in making the Hema Commission report public, thereby exposing its lack of will to stand by survivors who re-lived their trauma and gave testimonies about the harassment they faced in the industry.

It is important to understand that a separate law exists for sexual harassment at the workplace because of the conditions and circumstances in which the crime takes place. Apart from gender inequity, which influences how the crime is viewed by society, sexual harassment in such circumstances is complicated by the unequal power dynamic that exists at the workplace. The law recognises that victims/survivors may be under the control of the accused, with their livelihood at stake, making it very difficult for them to speak up.

In Indian film industries, it is only after the #MeToo movement of October 2018 that sexual harassment at the workplace was recognised as such, in place of the glamorous and salacious label of ‘casting couch’ which diluted the nature of the crime. Expecting sexual favours for work was so normalised that the euphemism was liberally used by people from the industry and the media, with such instances finding their way to gossip columns rather than reports on sexual violence.

How can it be sexual harassment if there is consent?

In the 2021 Malayalam film Sara’s, a young and hopeful debut director slaps a producer and walks out when he asks her for sexual favours in return for producing her film. The slap is often considered to be the ideal response when such a scenario presents itself. However, such simplistic depictions ignore the fact that the film industry is a largely unorganised sector that runs on networking, has few democratic channels for work opportunities, and is mostly driven by powerful male stars, producers and technicians. There are some production houses and filmmakers who call for auditions but the traditional way of working through networking is still the popular practice.

The person who is expected to slap has the least power in the setup, and must let go of work opportunities if she values her dignity to that extent. But on the other hand, there is no redressal mechanism in place to punish the man who asked her for sexual favours. She is the anomaly, he is the norm, and there is no guarantee that in an industry where such sexual favours are normalised, the situation will not repeat itself. In this context, ‘consent’ and the ability to give or refuse it comes with several strings attached, and it should be recognised as such. It is not the same as two people meeting on a dating app and deciding if they should or should not enter into a romantic or sexual relationship.

In the Vijay Babu case, the complainant’s allegation can be split into two:

  1. Vijay Babu demanded sexual favours from her in return for work and marriage, and she complied.
  2. Vijay Babu assaulted her, subjected her to violence and resorted to blackmail when she wished to end the relationship.

It is up to the police and courts to investigate the complaint, examine the evidence, and see if there is any merit in the case. But, while there is a great amount of scrutiny on why the survivor complied with Vijay Babu’s demands, there isn’t as much rigour in examining why he allegedly made those demands in the first place when asking for sexual favours at the workplace by a person in a position of power amounts to sexual harassment. Previous assault cases against Vijay Babu filed by his co-producer Sandra Thomas and his wife have not tarnished his public image in the case either. The understanding is that men may make such demands but it is up to women to say no, without adequately analysing the consequences the women have to bear for saying it.

In the pre-arrest bail order cited earlier, Justice Bechu Kurian Thomas already suggests that this is a case of an affair gone sour, and that the survivor is framing a consensual relationship as rape. Further, at the court hearing, the judge said: “Now, women are no longer very worried about speaking in public about their sexual escapades. Every other day, we find women saying that. They have become empowered. They are strong about such things.”

The word ‘escapades’ means ‘an act or incident involving excitement, daring or adventure’ – equating sexual harassment with such a word is nothing but a woeful misreading of the crime and a dilution of the survivor’s trauma.

Can consent never be withdrawn?

The second aspect of the complaint is that Vijay Babu allegedly forced the survivor to continue in the relationship when she wanted to end it. Even if one were to read the situation as a ‘consensual affair’ and not view it as an alleged case of workplace sexual harassment, it is puzzling that so many people believe that once a woman has consented to entering a relationship, she has no right to withdraw from it for whatever reason.

Consent can be given and withdrawn at any time in a relationship. It can also be given and withdrawn at any point in a sexual act. Respecting ‘consent’ means recognising a person’s inalienable right over their body and mind. If one does not recognise that a person can ‘withdraw’ consent, the idea of ‘giving’ consent becomes meaningless. Assaulting someone and blackmailing them for refusing to continue in a relationship that they’d previously consented to certainly amounts to sexual harassment.

The survivor has a long legal battle ahead of her. The evidence presented by the prosecution must be strong and foolproof, and the court needs to be convinced beyond doubt that Vijay Babu is guilty for it to convict him. But as the case follows its course, it is important that the conversation around it is cognisant of what constitutes consent and its violation, as well as the contours of workplace sexual harassment. Perhaps then it may become evident why so many women don’t see the slap as a solution.

This article is published as a part of the Media Fellowship on Gender for Governance Innovation Labs.

Sowmya Rajendran writes on gender, culture and cinema. She has written over 25 books, including a nonfiction book on gender for adolescents. She was awarded the Sahitya Akademi’s Bal Sahitya Puraskar for her novel Mayil Will Not Be Quiet in 2015.

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