The limitations that stall #MeToo


In one aspect, India offers better conditions for victims of sexual abuse – there is no limitation period to rape charges brought by victims. This is not the case worldwide, says Gajanan Khergamker, as he discusses the infamous Harvey Weinstein case of Hollywood.

To understand the #MeToo movement, it is vital to understand the legalities of the claims brought about by the victims, and the efficacy of the laws in the respective countries. While we, in India, are prone to ruing about ‘lengthy processes’ and other issues, the issues that plague the rest of the world are worse, if not deplorable.

In India, there is no limitation period to rape charges brought by victims. That proving the crime may be difficult or near impossible, is another issue. The law itself does not prevent the victim from filing charges at any time after the incident.

Statute of limitation, worldwide

Now, where #MeToo is concerned, a sexual harassment claim brought by actress Ashley Judd against Hollywood mogul Harvey Weinstein – which triggered the movement across the world, has been dismissed by a court in California. The producer has been accused by more than 75 women of ‘varying degrees of sexual misconduct’, over time that spans decades. Weinstein denies all allegations. He has also been charged with five counts of sexual abuse that include rape.

The charges brought by two women will stand trial in New York later this year. Ashley Judd, who was Mr Weinstein’s original accuser, re-filed her sexual harassment lawsuit filed following a change in California state law after her initial claim was rejected by Judge Gutierrez in a Los Angeles federal court last September. In the suit, she alleged she rejected unwanted advances from him, who then tried to wreck her career.

Interestingly, in a judgement indicative of similar takes from judiciaries across borders, Judge Gutierrez maintained the law that dealt with sexual misconduct claims in professional relationships, revised to include directors and producers, could not be applied retrospectively to Judd’s case.

The logic being: A person could not be held liable for an act s/he committed if it wasn’t a crime or an offence at the time s/he committed it. Even if the act constitutes a crime by dint of any legislation brought after the act was originally committed, the person cannot be held liable. Law is to be applied prospectively and not retrospectively.

The part of her lawsuit that states that “Weinstein used his power in the entertainment industry to damage Ms Judd’s reputation and limit her ability to find work,” could however be examined in a court of law.

Apparently, in 2017, Lord of the Rings director Peter Jackson said he had been considering Judd for a role in the 2002 film, but that she was “blacklisted” following conversations with the Weinstein Company. Jackson said Weinstein had warned him the actress was a “nightmare” to work with. Weinstein, however, said he had no role in the casting of the movie, and denied trying to derail Ashley Judd’s career. Judd’s lawyer, Theodore Boutrous, said, “While we respectfully disagree with the Court’s decision as to the one claim it ruled on today, we look forward to pursuing the three claims for relief that the Court has already ruled can move forward,” he added. Weinstein’s lawyer, Phyllis Kupferstein, welcomed the judge’s decision. “We have said from the beginning that this claim was unjustified, and we are pleased that the court saw it as we did,” she said in a statement, adding: “We believe that we will ultimately prevail on her (Ms Judd’s) remaining claims.”

Meanwhile, in Florida, a bill that seeks to halt statute of limitations in rape cases has been introduced. Donna Hedrick says her high school chorus teacher forced her to have sex with him in December 1971. The freshman had just turned 15 and ‘really didn’t fight him off,’ because she was scared and ‘almost convinced that this is what you have to do to be in a safe place.’ She said she needed that safe place because she was having trouble at home, so she turned to her mentor for guidance, and was invited to his home. The teacher, who is now retired, was never arrested or charged in the case.

Now, decades later, Hedrick is going public with her story to launch a fight to change Florida law and eliminate the current four-year statute of limitations as it pertains to sexual abuse. Hedrick, married and with grown children, met with State Senator Linda Stewart (D-Orlando) to present her story, and Stewart immediately took action. “There needs to be no clock on sexual crimes for our young people,” offered Stewart, who filed Senate Bill 130 to remove the statute of limitations for prosecution of rapes involving victims under the age of 18.

Now, under current state law, first-degree felonies involving sexual battery must be prosecuted within four years after the offence. Prosecution of any other degree of felony sexual battery must commence within three years of the crime. If approved by the legislature, Stewart’s bill would take effect July 1. Yet, even if approved, the former teacher will never face potential charges in the case because the law would not be retroactive.

It may be recalled that following the Delhi gang rape case, the four held guilty by a fast-track court could not be punished under the new amended stringent rape law brought in 2013, as the amendments were carried out after the commission of the crime.

The India story

In the #MeToo Movement, the one issue that needs to be addressed is the #MeToo Beyond Borders where the perpetrator either marries the victim or promises to marry the victim back in India, or takes her with him to a foreign land and ill-treats her throughout her stay in isolation; even physically abuses her while seizing her legal documents to ensure she doesn’t escape to freedom.

This issue needs to be addressed with a sense of urgency, and despite the law being in place, it’s the reluctance of the victim to come out and file charges against her ‘husband and his family’, compounded by the need for Indian authorities in foreign lands to reach out especially to women and dependants of NRIs to ensure they are safe and sound.

According to the Ministry of External Affairs (MEA), a total of 765 complaints were received in the first 200 days of 2018, more than half of the number of complaints received in 2017, and a similar number from 2015. Offenders tend to take advantage of the fact that most offences committed are across borders, where the laws regarding woman are weak.
Harassment and ill-treatment by the husband and his family and abandonment, are the most common complaints received by MEA. In September 2017, the Indian government increased the amount of legal and financial assistance to distressed women from $3,000 per case to $4,000. Also, from June 2018, it was mandated that all NRI marriages must be registered within seven days.

The law needs to change in sync with the progression of crime in any country. The rate of change has be at pace with the progression. And, the law does catch up with the felon…finally!

Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and filmmaker. He is the founder of the international think tank ‘DraftCraft’.