[governance] Statement on Sexual Harassment at ICANN 55

nigidaad at gmail.com nigidaad at gmail.com
Wed Mar 23 11:49:40 EDT 2016 

Hi Sala and others,  

Due process is absolutely necessary and lawyers should be involved when such an incident happens. However, if the organisation has lawyers, and the victims can't afford one, then it should become part of the guidelines to provide a lawyer solely for the victim who is not connected to the organisation or the accused. A legal fund should be readily available for victims to hire lawyers of their choice.

May I politely add here that the comparison to the recent issues at JNU cannot serve as a valid analogy to discuss this? Being charged for treason is very different from sexualised violence. The entire dynamics of sexualised violence are essentially connected to patriarchal norms; whereas treason is connected to the paternalistic state flexing its patriarchal muscles, it is still better to compare this issue to case studies or incidents of sexualised violence.

In house trials, within the organisations, are a bad idea so avoid creating a legal due process and involve the law IF the victim is willing to. No one should demand survivor be forced to report or keep the proceedings confidential, it's a sole prerogative of a survivor. For example, in Pakistan, women will hesitate to report unless they have support especially from their families. To say a woman hasn't reported without taking into considerations these cultural realities is insensitive and provides impunity to harassers. 

The conviction rate for rape, for example, is zero for adult women. Very few women can provide solid evidence of rape. In Pakistan, a two finger test to determine virginity is part of the rape test. In essence, women are raped by the medical examiner again after being raped to check if they were "pure". Men will target women who they know are not virgins e.g. divorced women because they know they will get away with rape. 

Any rhetoric that demands that the victim prove harassment reinforces the problem and leads to blaming the victim. Much harassment is subtle and not noticed by others. At conferences, there is "accidental" touching, staring that others may not notice, using harsh words and tones out of sight of others. Serial harassers excel at these tactics. They are aware of them. Sadly, most victims are not aware of them and if they are told they should not report unless they can "prove" a series of bad incidents occurred, then we're entering very murky territory and are back to reinforcing the problem. For example, if a woman is feeling harassed by her boss, most times, witnesses will not side with her or speak up for her knowing they could lose their jobs. Many will hesitate to report unless they find another job or will not speak up out of fear of someone more powerful than her. 

We absolutely must discuss power dynamics and the psychology of abuse. In fact, training on this issue alone is a much better idea than training on gender generically. Too much of what is heard in discussions reinforces norms such as "he said/she said" which then leads to assumptions about women being hysterical, difficult and "women scorned" who are reporting after being in consensual relationships. Serial harassers know how to psychologically manipulate women to make it look like they've consented to their own oppression. This, too, shouldn't be acceptable. 

If we want to make a sincere effort to really fix this problem then we absolutely must trust women when they come forth instead of putting her in a position where she will hesitate to do so unless she has solid evidence of harassment. We also need to reassure the following: that she will be listened to with compassion and sensitivity, that she will supported through the process, that she will be given reassurance that her accuser will not eventually sue her for defamation, and that she will not be demeaned or blamed. 

Undoing this culture of harassment, which is intrinsically tied to rape culture and power, will necessarily take years. While this is an urgent issue, we should learn from history and realise that simply making policies without action on principles isn't productive and don't solve problems. The feminist mantra of "the personal is political" must also be applied in every organisation. It becomes easy to point fingers at others unless there is some collective responsibility. 

Hence, I caution that unless we have a well thought out process, we will not be able to eliminate this culture. We could end up with an "us vs them" outlook unless we find a way to address this collectively and sincerely. We should aim for a mind shift which should leads to a culture where perpetrators do not even think of harassing women instead of feeling fear of repercussions if they do. 

Best,
Nighat Dad
Digital Rights Foundation 

> On Wed, Mar 23, 2016 at 12:01 PM, Nighat Dad <nigidaad at gmail.com>wrote:
> This is setting a dialogue in IG spaces.
> 
> 
> ---------- Forwarded message ----------
> From: <williams.deirdre at gmail.com>
> Date: Wed, Mar 23, 2016 at 3:48 AM
> Subject: Re: [governance] [IRPCoalition] The Absence of Due Process/Was Re: Re CIS' Statement on Sexual Harassment at ICANN55
> To: "Salanieta T. Tamanikaiwaimaro" <salanieta.tamanikaiwaimaro at gmail.com>, Internet Governance <governance at lists.igcaucus.org>
> Cc: Marianne Franklin <m.i.franklin at gold.ac.uk>, irp at lists.internetrightsandprinciples.org
> 
> 
> Dear IGC,
> I am replying to Sala's post in this way because I think it's important that IGC too should take into consideration the importance of due process.
> Sala presents the legal arguments very elegantly below. I have no training in law; however, like many of us, I feel sheltered and supported by the element of law which places the responsibility on the accuser to prove me guilty, and considers me innocent until this is done, rather than requiring me to prove myself to be innocent, and considering me guilty until that happens. With concepts that support all of us, with rights, they have to be upheld for all of us, or all of us will lose them.
> For it to be proved that a person carried out a particular action is relatively easy. For you to prove that you did NOT do something is difficult - because you didn't do it. Doing leaves evidence; not doing doesn't leave anything.
> Sexual harassment can cause in its victims a range of responses from annoyance to terror. It is unacceptable, and policies and processes are needed to deal with it‎. 
> Let's make sure that, in establishing protection in one situation, we don't compromise our rights in another.  
> Best wishes
> Deirdre
> 
>> On 21 March 2016 at 20:34, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro at gmail.com> wrote:
>> Dear All,
>> 
>> I agree with the spirit of Nighat's email and some of the recommendations by the Center of the Internet Society and offer some remarks on Due Process.
>> 
>> Due Process - Setting the Context
>> 
>> For British common law systems, "Due Process" is a principle emerging from English common law tradition, see Chapter 39 of the Magna Carta: "“No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and [or] by the law of this land.”
>> 
>> English Jurist Edward Coke's efforts saw the replacement of the "law of the land with "due process of the law" and influenced the fourth article of the Petition of Right (1628), “That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.” 
>> 
>> Within the  Fifth and Fourteenth Amendments of the U.S. Constitution as well as in various state constitutions, read that no person shall be “deprived of life, liberty, or property without due process of law.”
>> 
>> Abhinav Chandrachud argues that in India, due process has become a part of Indian constitutional law via backdoor entry despite constitution framer's intent, see Selvi v Karnatka and Union of India v R.Ghandi.
>> 
>> 
>> Case Study of Why Due Process is Important and Central to Democratic Ethos
>> In February, 2016, Jawaharlal Nehru University Students Union president Kanhaiya Kumar was taken into Police Custody for 3 days and faced sedition charges. Students called it a "witch-hunt".For Kanhaiya Kumar to defend himself against "tyranny" he has to be able to trust that "Due Process" exists and that his freedom won't be arbitrarily taken away from him without a proper trial where he can also "defend himself". The JNU Teaching Staff said that the conduct of the Police was a threat to "democratic ethos".
>> 
>> Alleged Sexual Harrassment Incident at ICANN55 and the Need for Due Process
>> 
>> The matter was reported to the Ombudsman by the Complainant and would have been under investigation. Most ICANN venues are conducted within hotel premises where CCTV cameras are present. Time and space have to be given to the investigators to conduct their appraisal. It is the right of the complainant to register a complaint and to divulge the nature of her complaint to others for as long as it does not prejudice the investigations.
>> 
>> It is also the right of the "accused" to defend himself in the course of these discussions otherwise what we are seeing is Trial by Peers without a proper process. 
>> 
>> In any event, the complainant has many avenues available to her to launch redress and as a law student and one who has access to lawyers, there are many avenues.
>> 
>> Whether this is the case against JNU's Kanhaiya Kumar or in this case the alleged offender an "unverified", "unsubstantiated" and "unproven" attack without proper due process is a severe breach of human rights.  Pre Trial Publicity does neither party any good. This is why you have systems in place, for example in Padimini's case, the Ombudsman who must be given room to conclude the ICANN Office of Ombudsman's investigation.
>> 
>> ICANN  has a formal redress system. The Board and the Ombudsman are well within their powers to appoint a committee to investigate the same. ICANN has Expected Standards of Behaviorfor Stakeholders which includes behaving ethically and responsibly and considers ethics and integrity as important. There is need for specific Sexual Harassment Policy and the US DoS has a good one which can be largely mirrored.
>> 
>> 
>> Perspective
>> If Khaled really did do what he is being alleged to have done, then there is a proper process to follow and if he did do what he is alleged to have done, then his conduct should be penalized and appropriate disciplinary actions taken.  Another way of looking at this is: If Padimini was sexually harrassed, then she can log a formal complaint and allow for the process to take its course. 
>> 
>> 
>> Kind Regards,
>> Sala
>> 
>> 
>>> On Tue, Mar 22, 2016 at 10:28 AM, Marianne Franklin <m.i.franklin at gold.ac.uk> wrote:
>>> 
>>> Dear all
>>> 
>>> See below for an important thread about sexual harassment, at the recent ICANN meeting but also with respect to the IGF. Of importance to all of us working with and within Dynamic Coalitions and other events.
>>> 
>>> best
>>> MF
>>> 
>>> -------- Forwarded Message --------
>>> Subject:	Re: [bestbits] CIS' Statement on Sexual Harassment at ICANN55
>>> Date: 	Mon, 21 Mar 2016 18:15:32 +0200
>>> From: 	Nadira Alaraj <nadira.araj at gmail.com>
>>> Reply-To:	Nadira Alaraj <nadira.araj at gmail.com>
>>> To: 	nigidaad at gmail.com
>>> CC: 	<bestbits at lists.bestbits.net><bestbits at lists.bestbits.net>, NCSG-DISCUSS at listserv.syr.edu <NCSG-DISCUSS at listserv.syr.edu>, Sunil Abraham<sunil at cis-india.org>, ncuc-discuss at lists.ncuc.org<ncuc-discuss at lists.ncuc.org>
>>> 
>>> 
>>> Dear all 
>>> I commend Ms. Padmini Baruah courage for bringing this issue to ICANN and to the civil society public forums.
>>> The discussion here raises a questions and I would like to direct this to those senior with ICANN. 
>>> How we can create a working group to discuss this issue under ICANN umbrella? It is important the recommendations of this group to be instituted into ICANN. 
>>> Which body of ICANN will grant the official existence of this group and what constituency it will work?
>>> Hoping these answers will bring the existence of this working group and follow the pattern of button up approach in decision making of ICANN and to follow with the recommendations of Padmini to make them happen. 
>>> Best wishes,
>>> Nadira Alaraj
>>> 
>>> On Mar 21, 2016 6:32 PM, <nigidaad at gmail.com> wrote:
>>>> 
>>>> First of all, I would like to say I think that Ms Baruah is an incredibly brave woman for not only making her story public, but also for not giving up despite being discouraged to report the incident and CIS for issuing a statement on rather ignored issue within our own circles. I personally know many women who don’t report harassment because there is a lack of support and significant discouragement. Unfortunately, this leads to silencing and harassers are thus granted impunity. 
>>>> 
>>>> Ms Baruah’s statement betrays another reality that women in this field have to live with if they wish to continue working: her harasser was granted access to her space where he was allowed to make her uncomfortable by staring. I have lost count of the number of women who have spoken about this. Unless a strong accountability mechanism is enforced, the rate of reporting harassment will remain low. Women will not come forward unless they are guaranteed that they will not have to face their harasser until they are ready to. Furthermore, having to face a harasser is triggering and emotional exhaustion leads to giving up.
>>>> 
>>>> This incident should lead to reflection regarding harassment in our own tech community and development in general. 
>>>> 
>>>> Strong policies should not only be enforced, but should be culturally sensitive. For example, if women from a very patriarchal country report harassment to someone, they should not be asked to first officially report it legally. Some are unable to do so and will hesitate to do so due to lack of support. 
>>>> 
>>>> More than anything else, as a community, we need to reflect on how we got here and why. Perhaps some accountability on our own roles is necessary because men would not able to harass women so easily unless they knew they had impunity on some level. While it is heartening to see conversations taking place, I don’t believe we can have meaningful change unless we all collectively discuss how we got here in the first place. Why does the tech development industry have such a bad reputation when it comes to harassment? Surely it isn’t the result of a conspiracy against us.
>>>> 
>>>> Jac it would be great if we make this discussion happen at Gender Dynamic Coalition in next IGF and discuss how to address the issue of sexual harassment not only restricted to spaces like ICANN and IGF but within our own community. 
>>>> 
>>>> My two cents..
>>>> 
>>>> Best,
>>>> Nighat Dad 
>>>> Digital Rights Foundation, Pakistan. 
>>>> 
>>>> Sent from my iPhone
>>>> 
>>>> On 21-Mar-2016, at 8:00 pm, Sunil Abraham <sunil at cis-india.org> wrote:
>>>> 
>>>>> The Centre for Internet and Society
>>>>> Statement on Sexual Harassment at ICANN55
>>>>> 
>>>>> The Centre for Internet and Society (“CIS”) strongly condemns the acts of sexual harassment that took place against one of our representatives, Ms. Padmini Baruah, during ICANN 55 in Marrakech. It is completely unacceptable that an event the scale of an ICANN meeting does not have in place a formal redressal system, a neutral point of contact or even a policy for complainants who have been put through the ordeal of sexual harassment. ICANN cannot claim to be inclusive or diverse if it does not formally recognise a specific procedure or recourse under such instances.
>>>>> 
>>>>> Ms. Baruah is by no means the first young woman to be subject to such treatment at an ICANN event, but she is the first to raise a formal c o mplaint. Following the incident, she was given no immediate remedy or formal recourse, and that has left her with no option but to make the incident publicly known in the interim. The ombudsman’s office has been in touch with her, but this administrative process is simply inadequate for rights-violations.
>>>>> Ms. Baruah has received support from various community, staff, and board members. While we are thankful for their support, we believe that this situation can be better dealt with through some positive measures. We ask that ICANN carry out the following steps in order to make its meetings a truly safe and inclusive space:
>>>>> 
>>>>> Institute a formal redressal system and policy with regard to sexual harassment within ICANN. The policy must be displayed on the ICANN website, at the venue of meetings and made available in delegate kits.
>>>>> Institute an Anti Sexual Harassment Committee that is neutral and approachable. Merely having an ombudsman who is a white male, however well intentioned, is inadequate and completely unhelpful to the complainant. The present situation is one where the ombudsman has no effective power and only advises the board.
>>>>> Conduct periodic gender and sexual harassment training of the ICANN board to help them better understand these issues.
>>>>> Conduct periodic gender and sexual harassment training for the ombudsman even if he/she will not be the exclusive point of contact for complainants as the ombudsman forms an important part of community and participant engagement. 
>>>>> Conduct periodic gender sensitisation for the ICANN community.
>>>>> ____________________________________________________________
>>>>> You received this message as a subscriber on the list:
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>>>>> To unsubscribe or change your settings, visit:
>>>>>     http://lists.bestbits.net/wws/info/bestbits
>>>> 
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>>> 
>>> 
>>> _______________________________________________
>>> IRP mailing list
>>> IRP at lists.internetrightsandprinciples.org
>>> https://lists.internetrightsandprinciples.org/mailman/listinfo/irp
>> 
>> 
>> 
>> -- 
>> Salanieta Tamanikaiwaimaro aka Sala T
>> P. O. Box 17862
>> Suva
>> Republic of Fiji
>> 
>> Cell: +679 7656770; 
>> Home: +679 3362003
>> Twitter: @SalanietaT
>> 
>> 
>> "You will never do anything in this world without courage. It is the greatest quality of the mind next to honour." 
>> 
>> Aristotle
>> 
>> 
>> _______________________________________________
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>> https://lists.internetrightsandprinciples.org/mailman/listinfo/irp
> 
> 
> 
> -- 
> “The fundamental cure for poverty is not money but knowledge" Sir William Arthur Lewis, Nobel Prize Economics, 1979
> 
> 
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Sent from my iPhone

> On 19-Mar-2016, at 3:27 pm, Padmini <pdmnbaruah at gmail.com> wrote:
> 
> Dear Suresh,
> 
> Thanks so much for the engagement, it is certainly opening my mind up to a whole set of different issues. I think with respect to the court of public opinion, your point makes sense. I trust however that the intention of my piece - not to lynch one person, regardless of what he did or did not do, but to raise larger concerns of failures of system. I have also acknowledged at each stage all the positive aspects of the system as well. I believe this is certainly within my right. Anyone else who feels the process has been undermined because of my disclosures should also appreciate that these were my disclosures to make, my personal space and thoughts, and not that of the institutional ombudsmen. They have upheld their end of the confidentiality contract. I waive it.
> 
>> On Mar 19, 2016 10:04 AM, "Suresh Ramasubramanian" <suresh at hserus.net> wrote:
>> Thanks - I wanted that angle clear. If you don't trust the process it is entirely your right not to follow them.
>> 
>> --srs
>> 
>>> On 19-Mar-2016, at 9:30 AM, Padmini <pdmnbaruah at gmail.com> wrote:
>>> 
>>> And yes, to respond to Suresh, very simply, I do not have faith in the confidential process. And it is my right to waive. Thank you.
>>> 
>>>> On Mar 19, 2016 9:29 AM, pdmnbaruah at gmail.com wrote:
>>>> Dear all
>>>> 
>>>> Thank you for both the support and the queries.
>>>> With respect to confidentiality , I strongly do believe that it is the right of the comlainant alone, and can be waived at her behest. The faith in the ombudsman process and its confidentiality can be both doubted only if the ombudsmen breach confidentiality, which they didn't. If I choose to name and disclose documents that only contain my statement, then it is right to do so, and my confidentiality to waive, as only my version events is on record. I trust everyone respects the value of expression and freedom.enough to.understand what I mean.
>>>> 
>>>> As to naming the person in question, he is more than welcome to engage with me or come up with a statement of his own. I have no.qualms about backing up.my.word with evidence. I am not a court of law and I certainly do not feel that I need to owe my perpetrator the grace of.anonymity if he chooses to disrespect my space .
>>>> 
>>>> And finally, everyone questioning the relevance of posting this, it is the same.reason why anyone posts any thing in this community - to raise awareness about issues that affect the internet. Sexual harassment at ICANN, or other technical conferences, is a direct deterrent to global, diverse participation, and therefore any discussion to make the process more inclusionary is directly within the ambit of this group, I believe.
>>>> 
>>>> Thank you again.
>>>> 
>>>>> On Mar 19, 2016 7:03 AM, "Suresh Ramasubramanian" <suresh at hserus.net> wrote:
>>>>> An interesting question would be why this was brought into the public when it is being handled in a confidential process.
>>>>> 
>>>>> Did you lose faith in the ombudsman process padmini?  Or what other ask do you have from the multiple groups copied besides a generic statement that we abhor sexual harassment?
>>>>> 
>>>>> --srs
>>>>> 
>>>>>> On 19-Mar-2016, at 5:36 AM, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro at gmail.com> wrote:
>>>>>> 
>>>>>> Dear All,
>>>>>> 
>>>>>> I do not condone sexual harrassment nor bullying,  intimidation of any sort.
>>>>>> 
>>>>>> The matter disclosed on a public mailing list for something that has been logged with Ombudsman or relevant authorities is not for public consumption particularly  if determination has yet to be reached.
>>>>>> 
>>>>>> Any organisation operating within the 21st century should have a decent sexual harassment policy and if it does'nt then develop one.
>>>>>> 
>>>>>> For those who wanted justice,  public ridicule without proper due process is equally reprehensible as alleged sexual harrassment. 
>>>>>> 
>>>>>> The fact that the matter has been logged with appropriate authorities who should also afford the accused party the right to be heard.
>>>>>> 
>>>>>> Personally, I do not see the link to internet governance as this is a matter for relevant authorities. 
>>>>>> 
>>>>>> Sala
>>>>>> 
>>>>>>> On 18 Mar 2016 6:50 pm, "Padmini" <pdmnbaruah at gmail.com> wrote:
>>>>>>> Dear all
>>>>>>> 
>>>>>>> PFA my public statement in this respect. It is a repeated plea to the Board of ICANN as well as the Community to clarify the timeline as to the development of the sexual harassment policy in this regard, as well as to reaffirm a commitment towards the development of strong, continued gender sensitisation.
>>>>>>> 
>>>>>>> Regards
>>>>>>> 
>>>>>>> Padmini Baruah
>>>>>>> V Year, B.A.LL.B. (Hons.)
>>>>>>> NLSIU, Bangalore
>>>>>>> Centre for Internet and Society, Bangalore
>>>>>>> 
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