In the autumn of 1991, Anita Hill, a law professor, publicly testified before the United States Senate that she had been sexually harassed by Clarence Thomas, who had been nominated to be a Supreme Court judge by President George HW Bush.
Unlike in India, where High Court and Supreme Court judges are chosen by other judges, judicial appointments in the US are made by the executive and confirmed by the legislature.
The way Hill’s allegation was handled has many similarities with how the recent complaint of harassment by a former staffer against Chief Justice of India Ranjan Gogoi is being addressed. On Monday, an in-house committee consisting of three judges of the Supreme Court dismissed her complaint as lacking in substance.
Ten years before she testified before the Senate, Hill had worked for Thomas, who, she alleged, constantly spoke to her in graphic detail about his sex life and about pornography, suggesting that he wanted to have a physical relationship with her.
The junior court assistant who complained against Gogoi also worked for him. Just as Thomas did during the Senate hearing, Gogoi expressed doubts about the motive of the woman who, on April 19, wrote to 22 judges of the Supreme Court, detailing her alleged harassment and the claims that her family had subsequently been victimised.
At her testimony, Hill faced aggressive questioning by male senators, whose primary aim was to detect if she had an ulterior motive to make the allegations against Thomas. She was asked questions like whether she planned to write a book and whether her political views on civil rights were too radical. It soon became a matter of her word against his.
On April 30, the complainant against Gogoi withdrew from the proceedings of the Supreme Court committee headed by Justice SA Bobde that was studying the allegations she had made. In a statement, the woman said she felt intimidated by the proceedings, to which she was not allowed to take a lawyer or even a support person. She also highlighted what she believed to be a violation of procedure, given the panel was not formally established under the Prevention of Sexual Harassment Act. In an interview to Scroll.in, she said she was losing faith in the justice system.
Hill would find this familiar. In her memoir, Speaking Truth to Power, she presented a depressing picture of what she had to go through during the hearing. This despite the fact that it was an open hearing, with the media spotlight on the senators who questioned her. The complaint against Gogoi was questioned behind closed doors in contrast.
Presumption of guilt
Once the United States Senate decided to hear Hill, the law professor points out in the book on how the narrative quickly changed from the suitability of Thomas to be a Supreme Court judge to her character and motives.
She said:
“The Republicans had accused me of lying about Clarence Thomas’s sexual harassment of me when I worked for him ten years earlier. They effectively shifted the hearing on whether Thomas was suitable to serve on the court to a hearing on whether I could rebut their presumption that I was lying. Primed by all the rhetoric before the hearing, the American public was predisposed to be suspicious of my statements and my behaviour. Before anyone would even listen to my charges, I had to prove that my character was such that I was not guilty of inventing them.”
On April 20, shortly after the woman’s complaint was reported by the media, including Scroll.in, Chief Justice Ranjan Gogoi called for a special sitting of a three-judge bench. He claimed that there was a conspiracy to deactivate the office of the Chief Justice and placed before the courtroom his economic background as a testament to his honesty. This led to a split in opinion even among lawyers, with the Bar Council of India backing Gogoi but several other lawyers’ associations calling for a thorough investigation.
The matter quickly escalated into a full-fledged court hearing by a separate bench to investigate allegations of conspiracy and fixing of benches put forth by a lawyer named Utsav Bains. The bench appointed former Supreme Court judge AK Patnaik to conduct a detailed inquiry, though it made it clear that its orders will not prejudice the inquiry into the sexual harassment complaint by the Justice Bobde committee.
In the meantime, Union Finance Minister Arun Jaitley, in a statement on April 21, made what the Centre’s position was on the matter amply clear. He said that “completely unverified allegations coming from a disgruntled person with a not-so-glorious track record only help in destabilising the institution of the Chief Justice of India”.
Like in the Hill case, doubts were cast on the complainant’s claim even before an investigation could begin.
Thomas was the first to give his statement before the Judiciary Committee. Hill details what she felt at that moment, when she was watching his testimony on television in a hotel. She says:
“In my heart I was sure that he would acknowledge the immorality of his behaviour, however obliquely, and offer an explanation, if not an apology. And though I was shocked by his “categorical denial,” it did not change what I had to do.”
Hill was also 35 years old during the hearings, the same age as that of the woman who has complained against Justice Gogoi. In the press release on April 30 detailing her reasons for withdrawing from the Justice Bobde committee proceedings, she said she found the atmosphere of the committee very frightening and that she was very nervous “because of being confronted and questioned by three Supreme Court Judges” without the presence of her lawyer.
In the book, Hill, in a telling paragraph, captures the emotional moment she entered the Senate hall for her testimony along with her family. She was despaired and at the same time wanted to protect her family from harm’s way. She says:
As I greeted each of them [senators], I felt despair and humiliation that we [she and her family] should be brought together under such painful and public circumstances. Even at the age of thirty-five I wanted my family to be proud of me. At the same time, I wanted to protect them.”
Delay in reporting
In her interview to Scroll.in, the complainant claimed that she was repeatedly asked by the committee about the delay in filing her complaint. The alleged harassment took place in October, 2018 but the complaint to the judges was sent on April 19, 2019.
This question over delay in raising the complaint was a central part of the Anita Hill hearings in 1991. In her case, the harassment had taken place 10 years earlier.
A few days before the hearings, Democrat Senator Dennis Deconcini launched a scathing attack on Hill at a press conference. He said that if Hill had been sexually harassed, she “ought to get mad about it and do something about it”. Instead she had been “hanging around a long time” and then suddenly decided to bring the matter up just before Thomas was about to be elevated to the Supreme Court. “I mean, where is the gumption?” he asked.
To this, Anita Hill points out in her book that the idea behind speaking out was not retribution. She says:
“Here is a man who probably never had to face discrimination in his life telling women how they ought to react to being sexually harassed. Where is the gumption, indeed?
The question misconceives what I was attempting to do in disclosing the information. I did not see the response as an effort to get relief or redress for the behaviour. I was supplying information about how Thomas conducted himself in his professional role.
To understand the muteness of my response, one must understand that I wanted most of all for the behaviour to stop. That was my chief objective.
I assessed the situation and chose not to file a complaint. I had every right to make that choice. And until society is willing to accept the validity of claims of harassment, no matter how privileged or powerful the harasser, it is a choice women will continue to make.
I made that choice, like many other women, because I thought it was my only choice. Even today, most women choose to keep to themselves the slights, innuendos, harassment and abuse they experience–-because they are women.”
The woman complainant has repeatedly claimed that her decision to bring the matter out in public was fueled by the sufferings her family had to face after she rebuffed allegedly unsolicited advances by Justice Gogoi. Her husband and brother-in-law were suspended from the Delhi police, another brother-in-law was removed from his job in the Supreme Court and she was dismissed following an exparte proceedings for what seemed to be minor transgressions.
Due process
There are many takeaways from the Anita Hill hearings of 1991. While due process provides the victim confidence that she is being taken seriously and gives hope that justice will be done no matter how powerful her harasser is, even the procedures established by law are inadequate in face of the painful experiences that women go through at workplace.
This is why it is important for committees that hear such complaints to go out of their way to make the complainant comfortable. Any doubt in the complainant’s mind that the process is not adequately empathetic would only add to the sufferings already experienced.
This empathy can be made evident without losing sight of the cardinal principle of criminal law that a person is innocent until proven guilty.
Demands made by the complainant, such as a lawyer for representation and a committee under the provisions of the sexual harassment law, are in no way excessive. In fact, they are a bare minimum to uphold the promise of equality before law in the Constitution.