SEXUAL HARASSMENT is about power, not sexual desire.
The term first hit international airwaves in the 1980s – four decades ago. On the heels of the #MeToo movement in 2017, sexual harassment’s visibility rose to an all-time high, when an avalanche of complainants – both women and men – came forward to publicly share their experiences at the workplace.
Progress in recognising sexual harassment as a crime is often stalled. Under certain socio-political situations, gender equality remains vague, and perpetrators, usually men, perceive such practices not as harassment, but part of an accepted social norm. The accuser, meanwhile, is usually branded a disruptor, a person with “lofty” ideals about equality and human rights, or worse still, a spoilsport.
The lack of legal provisions in recognising sexual harassment as fundamentally acts of sex discrimination translates into turning a blind eye to practices that are still part of an accepted social order.1 It also means being neglectful of the data on sexual harassment cases.
In Malaysia some success was close under Dr. Mahathir Mohamad’s former premiership. A Bill on sexual harassment was to be tabled at the Parliamentary sitting last March. The then-Deputy Prime Minister Datuk Seri Dr. Wan Azizah Wan Ismail had completed the multi-sector consultations involving various ministries, lawyers, NGOs and survivors of sexual harassment. Then the Pakatan Harapan government collapsed.
Following its demise, NGOs have taken it upon themselves to secure the law especially since the current provisions in the Employment Act are blatantly inadequate.
Limitations to the Current Law
Section 2 of the amended 2012 Employment Act defines sexual harassment as “any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment”. This definition and its interpretations are used to assess the validity of complaints filed. Interestingly, there are no stipulations2 on how the enquiry into sexual harassment is to be conducted.
Adding to this, incidents outside of employment such as those that occur during interviews or with informal workers, or others who are part of the current “gig economy”, e.g. Grab or Airbnb that provide connection services to customers are still grey areas. The law is unclear on the status of these workers and to what extent cases of sexual harassment can be looked into, and if so, by whom.
To complement the Act, the Code of Practice on the Prevention and Eradication of Sexual Harassment at the Workplace3 was established in 1999. Though not mandatory, employers are encouraged to adopt the Code. Section 4 of the Code categorises sexual harassment into sexual coercion and sexual annoyance, which calls for trained and experienced persons to conduct and complete effective investigations within 30 days. However, these guidelines offer no legal recourse.
Employers are similarly recommended to implement grievance procedures to ensure the independence of the unit, for the accused to be kept informed of the right to defend themselves, and to protect the accuser from repercussions. The accuser also has the option to file a complaint to the Director-General, the Minister or the courts to allow for the legal process to be opened.
In 2016 the Federal Court made a landmark decision in introducing the tort of sexual harassment into the legal and judicial systems; to commence an action under this tort, the accuser has to first file a civil case in court. Another proposal made by the previous government was to expedite investigations on sexual harassment allegations within 21 days.4
But the Act offers limited protection on sexual harassment, be it the rights, remedies and protection for victims to gain justice. The definition of sexual harassment has become too wide. The Act with its Code and guidelines are outmoded in form, function and action. Many countries now have a dedicated law on sexual harassment. Malaysia should do the same.
The Incident Rates
Younger workers are most vulnerable to sexual harassment. Single persons, those from minority groups, e.g. by ethnicity, language proficiency, sexual orientation, gender identity, religion, interests or hobbies, are also frequent targets. Service workers and those in the hospitality industry also experience sexual harassment more often, as compared to those holding professional jobs. Harassers are usually men, though there are some cases of women harassers as well. Most perpetrators are co-workers, supervisors or bosses.
The effect this has on the victims is that they tend to go into self-protection mode – avoiding certain areas, interactions with people – leading to frustration, loss of self-esteem and self-worth, absenteeism and a decrease in productivity.
Progress in recognising sexual harassment
as a crime is often stalled.
A 2019 survey based on 1,002 Malaysians by YouGov Omnibus5 found that 36% of women and 17% of men have previously experienced sexual harassment. Yet, only half of the victims – mostly women (57%) – reported or told someone of the incident. The types of harassment cited are sexual assault, verbal comments of a sexual nature, flashing and using sexualised photography or videography.6
Similar numbers are also reflected in the survey results by the All Women’s Action Society and the Women’s Development Collective of 1,483 respondents from six companies which had adopted the Ministry of Human Resource’s Code of Practice. The survey found that approximately a third of both male and female respondents have previously experienced some form of sexual harassment.
However, in real numbers, reported cases are relatively low; from the Ministry of Human Resource, only 188 cases were reported between 1987 and 1993;7 from the Public Service Department, disciplinary actions were taken in 47 cases between 2015 and 2017;8 and the Manpower Department solved 90 of the 93 cases reported between 2014 and 2018.9 These numbers give some idea on the under-reporting and weak documentation of cases; there is a vast gap between the survey results and the real numbers.
A comprehensive law on sexual harassment is needed, with an updated definition to keep up with the times and that is inclusive of all people.
Access to seeking justice, expediently and within defined timelines, is important. Cases can be heard in private as well as in a tribunal, consisting of people who have experience in sexual harassment issues, among others. Processes must offer complainants opportunities to seek remedies such as compensation and orders to restrain the perpetrator from repeating the act or acts, among others. It would also be good for the perpetrator to undergo counselling.
Younger workers are most vulnerable
to sexual harassment.
Most importantly, the law must complement existing laws and not cancel them out. For example, the Penal Code focuses on the sale, hire, distribution, circulation, etc. of obscene materials (S. 292 and S.293); doing obscene acts or obscene songs (S. 294); assault or use of criminal force to a person with intent to outrage modesty (S. 354); outrages on decency or any act of gross indecency (S. 377D); and using words or gestures intended to insult the modesty of a person (S. 509).
There is also the Communications and Multimedia Act 1998. Section 233 covers offences including making, soliciting, transmitting a request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.10 A new comprehensive law on sexual harassment will be a welcome addition to this series of laws on sexual crimes.
Crucially, it is important to raise awareness among girls, boys, women and men on the nature of sexual harassment and the structure of gender inequalities, and why these are no longer acceptable. Education on the form of sexual assaults, and the laws and mechanisms available can move the public from victim-blaming/shaming to appreciating wrongs, leading them to take on interventionist roles to responsibly report sexual harassment, to become witnesses and to give support to victims.
The ground work to extract commitment from the present government is well placed. A comprehensive stand-alone law to deal with sexual harassment is needed.
Braema Mathi is a visiting senior research fellow at Penang Institute. She is from Singapore and she loves the hills, the rivers and trekking – all of which are plentiful in Penang.