In conversation with Ann M. Noel and Shivangi Misra on thoughts behind the Global #MeToo Movement Book

The Global #MeToo Movement details how women on every continent are using the new tools of social media to confront one of the oldest barriers to equality: the threat of violence including sexual harassment as a tool of male supremacy. The book is published by Full Court Press, a publishing arm of legal publisher Fastcase, and the Berkeley Center on Comparative Equality and Anti-Discrimination Law and is co-edited by Berkeley Law Professor David B Oppenheimer, the Berkeley Center’s Director and Ann M Noel, Co-Director of the Berkeley Center’s Sexual Harassment/Violence Working Group.

Shivangi Misra is a Canada-based human rights lawyer. Ms Misra is the author of the chapter, “One of the #MeToo Movements in India: The List” in The Global #MeToo Movement.

Shruti Srivastava, a fourth-year law student at the National Law University, Delhi, asks Ann M. Noel, a co-editor and Shivangi Mishra, one of the authors about the book.

  1. ।n you describe what motivated you and your co-editor David Oppenheimer to organise this book?

Ann M. Noel: Both Professor David Oppenheimer and I had spent our professional legal careers working on eliminating sexual harassment, David as a former prosecutor for California’s equality body, and then as a scholar at the University of California at Berkeley School of Law. I had worked for years as the General Counsel for California’s equality body, the Fair Employment and Housing Commission, writing legislation, regulations and administrative decisions about sexual harassment. And yet, with the advent of the sexual harassment and assault revelations about Harvey Weinstein and the global social media firestorm that ensued, we felt challenged to reconsider everything that we had worked on to date to fight harassment. We held two conferences in 2018 and 2019 with an international roster of legal scholars and practitioners to consider the subject and solicited chapters from them for this book.

2. Since the language of the book is not filled with academic jargon, like most conventional law books, who are the target-readers of the book? Is it supposed to be only for academic purposes or have you envisioned its reach to be broader?

Ann M. Noel: We had a couple of target audiences in mind. First, we wanted to appeal to social activists, not necessarily lawyers or scholars, who were interested in the subject of sexual harassment and perhaps looking for inspiration or ideas of good laws or successful tactics to fight harassment that had worked elsewhere. We also hoped to interest attorneys who might want to dig deep to look at laws and regulations of other countries working on this issue. We thus asked our authors to put anecdotes about real people in their country who had faced harassment or were fighting harassment in the body of their chapters, with citations to laws and regulations nestled in the footnotes.

3. You were also involved with the process of approaching authors for chapters? Could you give us any insight into happenings of behind the scenes – how did you select authors and themes they cover for their chapters?

Ann M Noel: The Berkeley Center has a rich network of over 600 international scholars and practitioners and so, we first looked at our members who had impressed us with their knowledge about the situation in their countries. Our members also gave us recommendations for colleagues that they knew in other countries, or, in some instances, I found authors from doing research on the internet. So, for example, with our three chapters on India (the most of any in the book!), one author, Shreya Atrey, an Indian scholar now based in Oxford, England, writing about sexual harassment and caste, was a long time Berkeley Center member. Professor Atrey recommended a second author, Kalpana Kannabiran, a well-known Indian feminist and scholar based in Hyderabad. And or our last author, Shivangi Misra, a young Indian attorney and scholar presented a paper at a Berkeley Center conference in Stockholm, Sweden, in 2019, which so impressed David and I that we invited her to add an additional chapter documenting the #MeToo Indian phenomenon of “The List,” an anonymous compendium of alleged sexual harassers. In addition to chapters about specific countries, we solicited chapters and authors who could write about “Intersectional” topics that impacted harassment such as caste, sexual orientation and gender, disability, and race. And, finally, we utilised the rich resources of UC Berkeley’s extraordinary faculty writing about symbolic compliance, corporate governance, the effect of non-disclosure agreements, called “hush contracts”, defamation lawsuits and workplace investigations.

4. The Global #MeToo Book has 48 authors and 40 chapters, which would constitute a lot of perspectives. Apart from the theme of the book, how have you tried to structure the book and keep the narrative coherent?

Ann M. Noel: For the many “country chapters,” we gave our authors writing about their countries a list of topics that we would like covered. We asked for an honest assessment of the author’s country’s history and attitude about the issue of sexual harassment. We wanted our authors to write about the unique story of their country, its challenges, its successes and failures on this topic. We asked for both the big picture and examples to illustrate the points they made.

We wanted to know what happened in their country when the #MeToo movement hit the news in the fall of 2017? In some countries, a mass movement had started many years earlier (that was true in India); in other countries, #MeToo, as a phenomenon, did not really ever take off (for example, in the Czech Republic). We asked, if #MeToo was a factor in their country, what was the reaction of the government, the news media, and the public? We asked, was there a backlash by the media, government, employers, men and women?

We asked what legal protections were in place in October 2017 to protect persons from harassment and assault, in general and in the workplace? And, we asked about the reality of whether those laws were effectively enforced. Finally, we asked if there have been any changes in the law or enforcement since the beginning of #MeToo.

For our intersectional authors, analysing how other factors affect harassment, such as race, class, caste, disability and sexual orientation and gender, we asked them to answer the question, how does your intersectional issue impact harassment victims who are victims of sexual harassment and are also members of racial/gender/disability minorities or are disempowered because of caste or class? Has the #MeToo movement impacted these communities? We asked, in your opinion, why or why not, giving examples and suggesting solutions.

Finally, in the “techniques” section of our book, we asked a number of scholars and experts to weigh in on what has worked and not worked, to date, to fight harassment and what more needs to be done. These chapters detail that “symbolic compliance,” an employer creating a sexual harassment policy and providing anti-harassment training generally does not work without clear leadership from management and a demonstration that complaints will be taken seriously and those who assert that they have been harassed will not be retaliated against for doing so. Companies requiring employees to sign non-disclosure agreements forbidding them from telling others about their harassment to settle sexual harassment suits or, worse yet, as a condition of employment, allow serial harassers to continue to harass without consequences. Demanding gender diversity on corporate boards can create a more equitable workplace. Good workplace investigations can fairly and efficiently ascertain whether harassment has occurred, providing due process for both the accuser and the accused. And, protections against defamation suits provided under American law can be a good model for other countries to adopt to protect persons alleging harassment.

5. In your chapter, you describe an online “List” where Indian women posted names of men who they stated had harassed them. Could you describe the conversation that ensued, both online and in the media about due process and anonymous posters on the List?

Shivangi Misra: The List triggered a series of events and in a way the #MeToo movement in India. There was a lot of backlash that Raya Sarkar, the Indian law student who originated the List, personally faced including death threats and online abuse. Her account was suspended by Facebook and then restored. It is not surprising that the way in which women face backlash is so graphically violent.

One of the most striking responses was a letter signed by 14 feminist academics, activists and lawyers which urged Raya to remove the List because, they asserted, it delegitimises the long struggle against sexual harassment and make their tasks as feminists more difficult. I discussed this in my chapter in detail, but the List insisted on following the proper channels of redressal.

At the same time, the List was publicly supported by women focusing on how the existing conditions and power imbalances in India have failed women especially those in precarious situations and that the resources are not as accessible as represented in the letter.

At the very least, the List brought the issue of prevalent sexual harassment in academia and in educational institutions to the forefront. Due process is required, no doubt. It is also important to make the distinction that the List was a collective action and at its core did not challenge the idea of due process, but it did express frustration at the regular institutional failures on the issue of sexual harassment. It was a point of dissent, not the proposed practice.

6. Was #MeToo in India broader than the conversation about the List?

Shivangi Misra: Yes. Since then multiple men in the media, government, entertainment industry and in non-profits have been accused of sexual harassment publicly. Women have shared their experiences in vulnerable workplaces. The movement faces internal conflicts as well where some women have raised objections to the unsubstantiated allegations and lack of responsibility in anonymous claims.

To give a fuller picture, I think it is important that we place these objections in legal contexts. For example, in a complaint against the Chief Justice of India, the complainant decided against participating in the proceedings citing severe procedural failures. The CJI declared from the Bench, that he is innocent and that the complaint is a conspiracy against the judiciary. The proceeding went on without her and without addressing the concerns of the complainant or the fairness of the procedures.

The preconditions and structures required for due process is often missing. These are the underlying conditions that leave no choice but to share names and cautionary tales.

7. Sexual harassment has been pervasive and extremely common worldwide in workplaces, universities, on the street, etc., the extent of which was revealed by the #MeToo movement. Even before women publicly named their harassers, information about a specific employee/professor as a harasser has been shared in “whisper circles.” What has changed now that women are sharing their experiences online, often anonymously and these conversations have then been shared by the media? Has this created solidarity amongst women?

Shivangi Misra: I think the difference was that before, our conversations were private and we were trying to either navigate the complaints mechanism or at most warn our friends about it. With the movement, we began having these conversations publicly and consequently exposing how common it is. The movement encouraged more women to speak up and to do so outside the inadequate boundaries of whisper networks and “proper channels.”

Did it create solidarity? Yes and no. Yes because, as I said, millions of women were able to speak up at once because they were not alone and because there was a purpose to all of this – to expose how common it is. Women face a lot of credibility deficit when they share their experiences, so to create a cultural reference point that it is a systemic issue and not an individual experience was quite phenomenal.

No, because these solidarities were mostly on social media. Social media reproduces social hierarchies, which are predominantly caste and class based in India. Upper caste women with political and social capital are heard easily and they occupy dominant spaces. Also, there is a danger that the movement becomes homogenised around privileged women and it erases the experiences of Dalit, Adivasi, trans and disabled women.

Social media design tends to monetise movements, access is a privilege in itself and the reach is popularity based. The news cycle revolves around specific cases rather than discussing systemic problems (and systemic solutions).

8. As global was the movement, the backlash to the movement most women experienced was also universal. Why do you think that has happened? Additionally, how do you think this movement has been affected and hindered by defamation law?

Shivangi Misra: The backlash was global because the movement challenged a systemic issue that is truly global. We know that just a few years ago, even recognising sexual harassment as a legal issue required heavy lifting that feminist lawyers had to do. Lawyers like Catharine MacKinnon in the US, who pioneered the claim, and Indira Jaising in India, who brought the early cases against senior police officers and sitting Judges, helped introduce protective legislations.

But these laws still operate within the existing carceral legal system which is brutal towards the marginalised. Defamation as a criminal offence, which is a colonial legacy, is often weaponised against sexual harassment complaints. Progressive legislation is only as progressive as the system it operates in. Defamation laws targeting women who complain against harassment are used to drain them of resources and intimidate them, making it more difficult for women to access protective measures.

Another kind of backlash that the movement is facing is from feminists, who accuse it of creating sex panic or a repository of bad dates – behaviours that are not legal violations. I think in some cases, it is true that all kinds of experiences are often clubbed together or that we are intolerant of certain sexual behaviour. However, I do not think that imperfection is a reason to disavow the movement. Yes, nuanced views have to be made accessible, like in any other complex subject.

9. How would you describe the impact #MeToo movement has brought? Also, where do you see this movement going and what needs to be done to combat sexual harassment, in India and globally?

Shivangi Misra: We are no doubt living in the post #MeToo world. To me that means that we cannot ignore that women are living and working within unequal conditions which are complex and there are very few avenues of “‘justice” available to us. The collective realisation that the so called “good” men can be harmful or that the “creepy” men are unfairly ostracised more easily are all a part of the post #MeToo world. I think in the media, the expectation that the movement was supposed to somehow end the harassment is misplaced and naïve. It is an imperfect but growing movement like most social movements with internal contradictions with which we have regularly to engage.

I also think that framing the issue of sexual harassment beyond the present legal system in the mainstream conversations has been very helpful in bringing the complexities to the surface. The legal system tends to be heavily carceral towards the vulnerable (including men) and provides impunity to the privileged. That is not by accident. Feminist lawyers in India have been challenging unjust laws for decades now. Parallelly, we are also questioning “consent” as the marker to judge sexual harassment and these conversations are more acceptable than they were before.

Politically speaking, the challenging task ahead of us is taking the power structures into account when we assess cases of sexual harassment but to also be careful that we are not creating a culture of purity and are taking a nuanced view on unconventional sex. Legally, we have to be careful not to create overly broad laws which can be misused to hurt marginalised communities in the name of progress. This can only happen if we recognise privilege within the movement and listen to the women experiencing intersectional oppression and are silenced in the cases of sexual harassment in multiple ways.

The Global #MeToo Movement book can be accessed here.

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