The answer is ‘Yes’ – if the cause is just and urgent.

The question is – what if the circumstances are not so clear-cut?

Lawyers’ Party

Last week some lawyers attended a party.

A lady lawyer alleged that she had been sexually harassed.

Particulars of her complaint, including her police report – replete with details – went viral over the social media.

Was this right?

Presumption of innocence

A person is innocent until found guilty.

The organisers’ spokesman said,

‘Unless the perpetrator is convicted, all parties [should] refrain from passing judgment.’

He also observed that this may be ‘an attempt’ to have the ‘matter judged by the public’ and ‘to reveal the suspect’s identity.’¹ Let cops investigate, lawyer tells the victim of sexual harassment, FMT Reporters, June 28, 2019

This merited an immediate rebuke from a women lawyers’ organisation.  It alleged that the ‘organisers had exhibited an attitude of ‘apathy towards the victim’.  They called it ‘prevalent victim-blaming.’²Women lawyers’ body slams organisers over response to a sexual harassment claim, FMT Reporters

Was that right?

Is this the right attitude to adopt?

“You cannot compare two incomparables”, argue women’s rights advocates.

To measure the victim’s devastation as against the perpetrator’s presumed innocence – they suggest– is to ignore what a sexual attack does to a woman’s psyche.

It destroys her self-worth at the deepest level.

This attitude of ignorance, say writers, is centuries old.

Sexual coercion has been an entrenched feature of chattel slavery from African-American women to this day.³A History of Sexual Harassment, Old Style Liberal Blog, 5 August 2018

Is it not amazing that Americans, on the whole, blame women’s sexual predicament on the women themselves?⁴Reva B. Siegel, Directions in Sexual Harassment Law, 2003, page 3

For centuries society blindly assumed that women in fact “wanted” sexual advances and that they were at fault because they were “promiscuous by nature”.⁵‘The American legal system offered women very little protection from sexual coercion at work.’ Reva B. Siegel, ‘Directions in Sexual Harassment Law, 2003, p. 3

The long history of how women have suffered in this way for centuries is well-documented.

The Wall of Silence

Societal conspiracy feeds rampant occurrences

All across the world, sexual harassment is a rampant crime. The proportion of sexually-harassed female employees in industrialised countries ranges from 40% to 70%.

“When people raise their voice about unacceptable behaviour, they are told to keep quiet,” says a senior UK barrister.

When working women report sexual misconduct, they are met with a wall of disbelief.⁶Elizabeth Prochaska, quoted by Owen Bowcott, The Guardian, ‘Harassment rife in chambers and courts, barrister group says.”

In many organisations, human resources start with disbelief, despite the truthfulness of their complaints. The aggressor is ‘deemed innocent until proven guilty.’

One writer says,

“If you are investigating sexual harassment within an organisation, you are not required to follow the high standard of proof of a criminal trial. The duty is to protect your employees. You start by believing her.”

In the hand of oppressed women, social media is a potent weapon

Women turn to social media because they dread being shut out by authorities.

They fear to lose their job for speaking out.

Of all the people on the Internet, on average, 83% of  Facebook users are women.

These are powerful facts.

Social media has become a safe zone for women.

They believe there are many others out there who would support – and protect – them.

The question is whether victims should – protected as they are in these digital havens – mount attacks when the facts are not clear?

‘#MeToo’ is not the first digital campaign, nor an American idea

A decade ago, US social activist Tarana Burke first used ‘#MeToo’.

Alka Kurian⁷a senior lecturer at the University of Washington explains how digital campaigns had been used by Indian women since 2009. They had organised a successful campaign called #PinkChaddi (‘pink underwear’) against a culture of moral policing.

Social media Hashtags such as ‘#Nirbhaya’ (‘Fearless’) and ‘#StopThisShame’ were used to express the ‘collective rage’ and ‘mobilise people’ to oppose sexual harassment.

Similar digital campaigns have worked in Pakistan and other countries.⁸China arrested activist Li Maizi in 2015. This prompted a global social media outcry.

American actress Alyssa Milano popularised the 2006 #MeToo in a 2017 Twitter posting.  She encouraged victims to ‘give people a sense of the magnitude of the problem’. 

This drew responses from famous Hollywood actresses.

That resulted in a flashpoint: sexual abuse allegations against Harvey Weinstein, an American producer – came to immediate light.

That was followed by the identification of more than 200 ‘top American names’.

In one year alone, 19 million ‘#MeToo’ tweets were generated.

The Trauma of reporting

Victims find reporting sexual harassment as traumatic as the assault itself.⁹The Guardian dated 20 March 2018, Bateman, Jessica One victim, Jess Ladd,¹⁰an undergraduate at Pomona College in Claremont, California realised that:

“What matters isn’t just the assault itself, but society’s response to it – and that’s something we have complete control over.”

Time for women to find their own solutions

In the UK, 20% of women have experienced some form of sexual violence, while UK universities have reported “epidemic levels of sexual harassment”.¹¹ ‘Epidemic’ Levels of Sexual Harassment at UK Universities, The Gryphon, Posted on 20th March 2019 by Beatriz Casarrubios Lopez

When usual safeguarding systems in society do not work, women like Ladd feel that “It is time to find more innovative solutions”.¹² Ibid

Digital Tools: ‘Project Callisto’ and ‘Revolar’

Now 31, Ladd has created a digital tool, ‘Project Callisto’ a web-tool that makes “reporting sexual assault safe and supportive”.

It is used at 7 universities in the US. It will raise a ‘flag’. It is said, ‘whether the perpetrator has been named more than once’.

In areas where traditional institutions have failed, Jess Ladd is one of the few women weaponising technology to combat sexual violence.

Another entrepreneur, Jacqueline Ros, uses Revolar, a wearable key-ring device that sends out alerts to family and friends when the wearer feels unsafe.

Sarah Zandi, 21, is a content editor. Her organisation released an app called ‘ReachOut’.  It connects survivors to nearby services e.g. trauma counseling.

A two-edged sword?

The Malaysian answer to digital protests is the ‘Itch List’ (‘Gatal List’).

This is a secret list of sexual harassers, by which victims identify and warn other women of sex predators.

That which is privately circulated never stays secret.

If the victim is right, the perpetrator must be brought to justice.

Yet society does not make the process easy for the perpetrator.

The victim must be encouraged to take a brave stand, like the lawyer here, or the doctor who went against her superior in a government hospital.¹³ New Straits Times, 10 September 2018

What if the perceptions were not 100% accurate?

In such a situation, the social media posts have already declared the suspect guilty – no matter what the police or the courts will decide.

The attack on the reputation of a man should be –and should have been – a little more modulated.

The idea is to protect the reputation of both parties; not just the victim.

That, in fact, is the position taken in England.¹⁴See sec. 26 of the Equality Act 2010

Two competing elements

The modern approach to sexual harassment is to take a non-legalistic approach.¹⁵e.g. See Section 26 of the UK Equality Act 2010

When an allegation of sexual harassment is made, investigators have been advised to examine the twin factors.

One is the ‘Factual Event’.

That is an objective query.

They then study the  ‘victim’s perception’ of the event –a subjective examination.  This was adopted in a Malaysian case.¹⁶Mohamad Ismail v. Projek Lebuhraya Usahasama Berhad [2018] 2 LNS 1908

That is not to be brushed aside easily.

A UK case, Dhaliwal determined that are other factors at play.¹⁷Richmond Pharmacology v. Dhaliwal [2009] ILR 336, EAT; per Underhill P

The judge held that,

“While harassment should never be underestimated, it is also important “not to encourage a culture of hypersensitivity or imposition of legal liability … for… every unfortunate phrase.”

The UK Bar’s Guidelines require that ‘these balancing considerations’ require a ‘proportional investigation’.¹⁸Bar Council Equality and Diversity Guides – Tackling sexual harassment: information for Chambers, December 2015

Other weapons

Criminal Law

Sexual harassment must be criminalised. It must be a stand-alone statute.

Existing laws are archaic.

They cater for a society of the 1800s. The Penal Code does not adequately contemplate sexual harassment.

For crimes that occur in private, sexual crimes require a high standard of evidence.

Take section 509 of the Penal Code.

It is an offence if a person ‘insults the modesty’ of another by ‘uttering words’, ‘making gestures’ or ‘exhibits any object’ or ‘intrudes upon the privacy’ of such a person.  A similar section exists for outraging modesty.¹⁹Sec. 354 Penal Code

The punishment is a maximum of five years or a fine. There is no whipping.

There are various sections relating to rape²⁰Sec 375 and ‘carnal intercourse against the order of nature’.²¹Sec 377A

There is also a crime for a private act of ‘gross indecency with another’.²² The prescribed punishment is imprisonment for between 3 to 15 years, and whipping. See: Sec 377D. This is an antiquated law to prevent homosexuality.

No crimes describe, prohibit or punish sexual harassment.

Parliament should arise. It should protect our womenfolk.

The Employment Act

On 1 April 2012, the Employment Act 1955 was amended to include sexual harassment at the workplace.²³Part XVA  Several claims have succeeded under the Employment Act. One case went so far as to state that the local Act is completely unhelpful, in that it does not define what sexual harassment is.²⁴ Mohamad Ismail v. Projek Lebuhrayra Usahasama Bhd[2018] 2 LNS 1908. At least two cases upheld the dismissal of perpetrators.²⁵Mohamad Ismail, supra and Shamshir Alam bin SM Khairuddin v IBFIM (Award No:662 of 2019)

Asmah the Intrepid makes history

Asmah Haji Mohd Nor was employed at Lembaga Tabung Haji.

Dr. Mohd Ridzwan bin Abdul Razak was her superior.

He had uttered rude and sexually explicit remarks to her.

Having conducted an investigation, a Committee of Enquiry concluded:

“There was not sufficient evidence to warrant disciplinary action”.

But Tabung Haji’s Human Resource Department issued a strongly-worded administrative reprimand to Dr Ridzwan.

He sued her for defamation, demanding a public apology and aggravated damages.

Asmah was no pushover. Incensed, she filed a counterclaim for the tort of sexual harassment.

The High Court agreed with her, awardingAsmah RM120,000.00 in ‘general damages’ and ‘aggravated damages’.

The Court of Appeal threw out Dr Ridzwan’s appeal, as did the Federal Court.²⁶Mohd Ridzwan bin Abdul Razak v. Asmah Haji Mohd Nor (2016) 4 MLJ 282

It was a momentous decision.

The High Court brought justice into Asmah’s life, and light and hope into the lives of millions of women.

So Malaysian women can now sue and obtain large damages for sexual harassment.

Codes of Conduct

Codes of Conduct are new devices.  These require employers to maintain a code and rules to protect women.²⁷’Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace’, Ministry of Human Resource, Malaysia 01 March 1999.

These have not been roaring successes, either here or overseas.

Disciplinary action against professionals

Where a professional indulges in sexual harassment, the respective professional bodies must not treat it as not only an ‘employment issue’ – but as a disciplinary issue.

That has not happened. In this, the medical profession has taken a great lead.

The Bar Council has, a decade ago, urged its members to adopt a Code, just like the Ministry.²⁸Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace’, 02 March 2007 and Circular No. 125/2006, and 54/2007.

In its proposed amendments to the Legal Profession Act, the Bar has called for sexual harassment to be punished as professional misconduct.²⁹Proposed sec 148(3)(o)  A lawyer could be thrown out of the Bar.

Training children and youth at school

A school curriculum that does not teach its students to respect and to honour women, and keep their hands off girls – is not doing its job.

It is not clear how far the Education Ministry has gone into this area.

Are we trained by our parents to honour women?

Until we teach ourselves – and our children – to honour women, a hundred new laws or a thousand new codes will bring no lasting relief for our womenfolk.

There was a time in this country when women were treated with reverence. It has been lost.  It has to return.  It is only the parents who can do this.

‘No’ means ‘NO!’

The powerless seek the power of the social media to lash back against societal forces arrayed against them.

Where the victim is suppressed, or those in power refuse to hear her complaint, or decline to take action – a vicitm should weaponise social media.

Hasty Exploitation of Social Media?

When sexual harassment is alleged, neither the victim nor the accused depart without injury.

For the man found guilty, he suffers social embarrassment.  That could be of long duration or a short one.  But it is, almost always, temporary.

For a woman, it is a lifetime of misery and relentless blame.

Hastily exploiting social media – when the situation calls for some decent investigation, is, on the other hand, trial by media.

There are, in this contest, no winners.

[I thank a senior barrister, Ramesh Sanghviram, for an inspiring line. As usual, many thanks go to my industrious, intrepid teams, Ms. KN Geetha, Miss Shalini Ragunath,  Mr. GS Saran, Mr. JP Kirat, Miss. KP Kasturi,  Ms. Thanessha Gunalan and Mr. Devraj Nagarajan for their research.  ]