Introduction: Sexual Harassment & Consent

What is consent?

When an individual agrees to allow a certain action to take place, it implies a permission to pursue something. Whether or not the act is of a sexual or non-sexual nature, the principle of consent allows the parties involved to feel safe, secure, and respected. The Indian Penal Code, under Section 375, defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” The definition itself specifies the words ‘unequivocal’ and ‘voluntary’ which are the two key components of consent.

In this article, we will take a look at the dynamic nature of consent and its varied perspectives using examples.

Consent In Popular Culture

Generally speaking, Indian pop-culture has been guilty of creating confusion, misunderstanding, miscommunication and misinterpretation of the very idea of consent. In the last few decades, popular songs and films, the tunes of which people thump their feet to, have internalized a deep-rooted sense of misogyny. Lyrics and dialogues clearly exhibit the lack of consent, as well as the lack of awareness of consent and instead, glorify sexual harassment and stalking.

The Culture of Consent

At the workplace, employees end up spending a significant portion of their day together, sometimes even weekends and holidays. Therefore, it becomes important that a safe working space is cultivated where people are comfortable working with each other. However, in some situations, the line between personal and professional boundaries may blur, making it more important for colleagues to seek consent from each other. This becomes imperative when colleagues contact each other outside of work hours, or make physical advances towards another person.

Section 2 (n) of the the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), defines sexual harassment as:

“ Sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-

1. physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;”

Read our article on consent components to understand consent better-

Dynamic Nature of Consent

Let’s dive into some examples to understand the dynamic nature of consent.

Example 1

A coworker sends a colleague messages like, “You have a beautiful smile”, “Do you want to get a drink?”, “Hello dear, please reply”. However, the coworker receiving the messages chooses to ignore them. A few days later, they bump into their colleague at lunch, and smile out of courtesy. The colleague takes the smile as an affirmation and continues sending messages asking them to join for dinner and drinks.

Ask yourself: Can smiling be construed as consent? Does continuously sending messages to the co-worker construe as sexual harassment under the POSH Act?

Example 2

A manager asks to meet a subordinate outside of work with an agenda to discuss a work related matter. Considering the request has come from a senior, the subordinate is unable to say no, even though they previously expressed that they are not comfortable meeting colleagues outside office.

Ask yourself: Since the employee has consented to meeting outside, is it alright for the manager to make physical advances at them?

Consent is contextual. Affirmative consent is when express, explicit, and informed consent has been given by both parties to engage in the activity. For example, ‘Yes’, or ‘I am comfortable’.

However, in some cases, the lack of these obvious statements of expression may be misunderstood as giving consent. Sometimes, body language may indicate consent.  For example, a co-worker may hug another co-worker, even though they haven’t expressly given or taken consent to do so. In such cases, it is important to understand that consent in this instance has been determined by the giver, not the receiver. It is therefore important to understand what the other party thinks or feels about engaging in sexual (or non-sexual) activity.

The Need to Understand Consent in POSH Training

Consent is an unambiguous agreement to engage (or not engage) in an activity.  However, it is not always clearly understood. At the workplace, it’s important to seek consent, especially when there may be a chance of boundaries getting crossed or new boundaries being created.

The lack of consent can affect interpersonal relationships and amount to sexual harassment at the workplace. Obtaining informed consent from an individual is important to create a safe working environment.

In practice, consent involves the following:

• Existence of consent itself
• Communication

Since our culture does not encourage people to seek consent, it is viewed as a complicated requirement, even in our daily lives. Haven’t you often heard people say, “I didn’t think I needed to ask”?

It is important for people to understand consent so that it is adequately engaged in practice. Several times, cases of sexual harassment stem from misperception of consent; where induviduals misunderstand obvious cues of consent expressed by the other party. It therefore becomes important to impart training where the concept of direct and indirect consent is reiterated to avoid sexual harassment and create a safe workplace. In most cases, especially if the lines are blurred, it is better to adopt a conservative approach to determine consent, especially if its existence is in question.

Why is POSH Training Needed to Understand Consent?

Consent can often be misconstrued, and therefore, it becomes mandatory to help people understand how to define boundaries to have enriching interpersonal relationships at the workplace. We help normalize the concept of seeking consent from being something that needs to be specifically sought while engaging in sexual behaviour, to something that should be understood among co-workers, to foster a more respectful ecosystem.

Consent Explained for Freshers Joining the Workforce

At the workplace, it is important to deliver POSH training to employees to explain concepts like consent regularly. This becomes even more important for freshers joining the workforce. Here are some practical steps to take when inducting freshers into the workforce:

• Review the POSH Policy: Review the company’s internal POSH policy regularly to confirm if it contains all the details of whom to contact in case an employee needs to report inappropriate workplace conduct.
• Make POSH policy part of orientations: The company POSH policy should be shared with employees during their onboarding.
• Provide training: The company should provide training on prevention of sexual harassment at the workplace to maintain a respectful culture and working dynamic.
• Update definitions: As time evolves, so do workplaces. With remote working becoming the norm and people working round the clock, it’s important for workplaces to update definitions such as working hours, premises, online sexual harassment, etc. For example, in today’s world, even sending someone a coloured emoji without their consent knowing it will make them uncomfortable will be considered sexual harassment.

Consent At the Workplace – POSH Training

SHLC conducts POSH training to help colleagues and co-workers understand the concept of consent.

Through nuanced POSH training, SHLC provides a holistic understanding of POSH at the workplace, to freshers, experienced professionals, and management level executives.

Book a consultation with SHLC today. Reach us at contact@shlc.in or call us on +91-9625392040.

Note – This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace.