As per Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) Act, the burden of proof has different principles than in criminal court. The internal complaints committee is a quasi-judicial body. Cases are adjudicated based on ‘preponderance of probabilities’.
Sexual harassment and the law
Jurisprudence has grown in the field of sexual harassment. Law and society are now more open to listening to the complainant. Of course, the court and IC require proof. But there is a positive change when it comes to addressing cases where there is a lack of physical evidence.
As the world witnessed the #metoo movement, we began to see change in how cases of sexual harassment where handled. A complainant’s testimony is of paramount importance. Pre-existent biases are now considered irrelevant. Examples are: maligning the survivor’s character.
SC ruling on complainant’s testimony
The Supreme court set this precedent up. In the State Of Maharashtra v Madhukar Narayan Mardikar 1991 the court explicitly stated:
“…merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”
The Bombay high court had dismissed the woman’s testimony because she was “an unchaste woman”. But the supreme court disagreed with this and set a clear precedent”
Sexual offences often occur in isolation. Often, without the presence of witnesses or physical evidence. A woman’s testimony is of “sterling quality”. It doesn’t need to be corroborated.
If the complainant’s testimony is not satisfactory, it can summon witnesses. They can further host an internal inquiry. If the Respondent discredits the Complainants testimony then they have to prove these allegations. The consistency of the complainant’s statement gives the complainant the “sterling” credibility. The inquiry often proves this.
Who shoulders the burden of proof?
Burden of proof lies on plausibility of the survivors testimony and the analysis of the defence by the respondent. Following fairness, equal hearing, justice as the attributes achieves this. The book Staying in the Game: The Playbook for Beating Workplace Sexual Harassment explains that:
“Many women don’t report sexual harassment for fear of not being believed.”
In our experience at Serein, employers are attempting to address this by training IC members to avoid moral judgement, remain objective and be empathetic.