All India Human Rights Association (AIHRA)
“LegaL crannies saddLing Justice”
By- Tanya Pandey, Student of Law at Aligarh
Muslim University,Aligarh
Nelson Mandela had rightly said-“ Freedom can’t be achieved unless women have been
emancipated from all kinds of oppression.” And if one’s to consider the scenario of a liberal
democracy as that of USA- A superpower, a country which has allured the people of the
states across the globe with not just it’s infrastructural superiority or it’s well- built
military, but also with its notions on liberty, autarky and how women therein are rendered
considerable carte blance with respect to taking the major decisions of their life, in
contrast with the societies which continues to hold certain predominant reminisces of a
rudimentary patriarchal setup it once abided by; therein how highly contestable the
existence of the freedom of women actually becomes, when the superstructure of laws of
their own nation guaranteeing the upholding of their rights , are themselves fraught with
such loopholes which seem to completely downplay their prerogatives which are
indispensable to ensure the upliftment of their respective droits and the administration of
Justice.
The court has reported the making of such a promise at the hands of Mr.
Castor, the prosecutor in the particular case, but how can the existence of such a proponent
ever be justified in any legal system ! Rather in my opinion the same can’t be legitimised
even if it’s for a significantly hefty consideration being made to the victim. As what should
be triaged above the accused person's rights, are the tribulations which were afflicted upon
the accuser, the dolour that the victim underwent on account of the subjection to such a
heinous crime as that of sexual assault, which couldn’t be compensated rather shouldn’t be
counterpoised for anything but the prosecution of the criminal. As the accused doesn’t
deserve the privilege of living freely with a sense of impunity after making the accuser
witness the situation tantamount to getting moribund.
The ground provided by the
Pennsylvanian Court for overturning the conviction was the vitiation of Cosby's right to
due process , but this brings one to question that how can the court attempt at trying to
protect the right of due process of a person who himself in a civil case , brought by
Constand before her criminal case , presented himself as an ‘unapologetic, cavalier playboy
and admitted giving quaaludes to women he was pursuing for sex, but not without their
knowledge', and part of the same deposition had figured in the criminal trial. Also how
could the Supreme Court judges while considering Cosby's Plea consider that Cosby had
only agreed to being deposed because he believed his statements could not be used against
him in a criminal prosecution! How can the court consider of giving poundage to such a
person’s right against the rights of around 60 women , who couldn’t press their charges
owing to the deadline set by the ' Statute of Limitations', according to which there’s a
certain period within which a criminal complaint has to be lodged by the respective
accuser. And here one comes to the notice of another quite flabbergastingly prominent
loophole of the state’s legal system ,that this case unbossomed i.e The Statute of
Limitations.
According to the statute, for certain crimes as that of rape , the clock starts ticking after
the alleged offence occurs. Though for the allegations of rape and sexual assault, states
have different laws and the ventana of opportunity ranges from certain years to certain
decades. Like in Pennsylvania , it’s 14 years , in Colorado it was 10 years and has recently
been doubled , in California, a state where some of Mr Cosby's accusers live, a bill called
SB 813 was recently passed to end the statute of limitations for rape, child sex abuse, and
other sex crimes ;though for the charges of murder there’s no such time frame; while in
some states , sex offences involving minors and crimes like kidnapping or arson have also
been kept beyond the shadow pf the particular statute .Now the 'bove- mentioned
proponent quite instinctively strikes the prudence of even a layman , that what exactly are
the parameters for an offence to earn the status equivalent to that offence which isn’t
being subjected to the Statute of Limitations and why haven’t the states across USA
especially in this particular regard considered adopting a uniform framework for the
same. And as under the Law of Pennsylvania , it’s stated that the Statute of Limitations
depends upon the severity of crime which one faces , ranging from two years to no limit at
all, so in accordance with the same does it imply that the offence of Rape is trivial enough
to afford a limitation period of 14 years and not a complete elimination from the limitation
period!
How could the framers of the law of the state so easily disparage the solemnity of such a
grave offence as that of Rape, considering how difficult it is to gather the mettle to speak
about such a thing in public and share that harrowing and gut- wrenching experience with
the public at large, and therein the prevalence of such a statute is a clampdown on Justice.
Though in the particular case, the prosecutors could still appeal the ruling before the U.S
Supreme Court, but regardless of the same such a statute is discouraging those who seek
justice for sexual assault in the criminal justice system, from reporting or participating in
the prosecution of the assailant .
Though in India also such a thing as limitation period exist with respect to certain offences.
Chapter XXXVI of Code of Criminal Procedure comprising of sections from 467 to 473 ,
prescribes distinct limitation periods for taking cognizance of various offences, depending
upon the gravity of those offences interlinked with the punishments, respectively.
And that’s the reason that during the upsurge of the opening up about
the sexual assault cases at the time of the commencement of the MeToo Movement in the
nation, women were seen filing complaints for the instances of sexual assault even after a
time period of around 19 years , as it happened in the case of writer- director Vinta Nanda
alleging that Alok Nath had committed rape on her around 19 years back or Tanushree
Dutta reporting the incident of sexual violence against Nana Patekar after a period of
around 10 years, which was only possible due to the non- existence of an identical statute of
limitations in the country, else it could have had the capacity to curb the reporting of such
instances at the hands of the victimised women by disparaging their courage owing to the
existence of such a law in place.
Apart from that ,attempts have been made across the various states of USA to address the
gaps existing in workplace harassment laws. Like the Federal law defines harassment as a
conduct that is “severe or pervasive” enough that it creates “a work environment that a
reasonable person would consider intimidating, hostile, or abusive.”Bills aimed at
clarifying what constitutes harassment have been introduced in states
including Maryland, New Jersey, Oregon, and Vermont. However the court rulings so far
in the particular realm have further discombobulated the legal protections around
harrassment ,with the courts many a times setting a pretty high bar for how much
harassment must take place before a workplace is hostile. Like there was this case of New
York which had reached the appellate court, it involved a male employer sending offensive
emails to workers and telling a woman employee that she should get breast implants,
offering to take her to a doctor. The same employer told the employee that her underwear
was exposed but to not adjust it because he had been “enjoying” himself. The court ruled it
was not a hostile work environment because it was “mere offensive utterance(s)” on several
occasions instead of pervasive and ongoing! In another case that reached appellate court, a
male employer suggested to a woman employee that she purchase certain sexual
paraphernalia. He also rubbed lubricant on the employee’s arm and called her a sexually
derogatory name. While a court said the workplace was “uncivil and crude,” it was unable
to conclude it constituted a hostile work environment! Furthermore , all the workplaces
even aren’t subject to the protection of the federal laws against the cases of sexual
harrassment , including employers with less than 15 workers, or the independent
contractors or the people who don’t fall in the category of formal employers; which could
mean that domestic workers and farm workers and others in the gig economy are also left
out of anti-harassment protections.
I believe it’s high time that the Judicial System of USA i.e the respective courts realise
that they aren’t in the business of law , rather in the business of Justice and the matter of
significant disquietude is not to genuflect before technical escape- clauses rather wangle
the pathway to the door of Justice even in the event of utmost quandary. As for upholding
Justice , there’s as much a need for gritty decision -making as is the need for an excellent
superstructure of laws.
Citation-
-https://19thnews.org/2021/03/women-face-the-highest-risks-of-workplace-harassment canstatehouses-close-loopholes/
-https://www.bbc.com/news/world-us-canada-37311685
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