EDITORIAL
For all the gender neutrality of its express provisions, a statute that provides protection against sexual harassment, such as the local draft Sexual Harassment (Prevention) Bill, now in public circulation, may still be popularly regarded as punishing primarily male conduct that is antagonistic to women mainly. There might be some justification for this, at least at the level of quid pro quo sexual harassment where relatively few women occupy positions that might be capable of effecting an advantage or disadvantage on a subordinate victim at work, depending on the latter’s reaction to the proposal for favours of a sexual nature.
Moreover, overt conduct of a sexual nature such as that covered in the Bill, including asking a person intrusive questions of a sexual nature that pertain to that person’s private life, making sexually offensive phone calls to another person and transmitting offensive written or other material to an individual is not traditionally associated with ladylike behaviour.
In this context, one may appreciate the eagerness of the local Men’s Educational Support [MESA] to be seen as solicitous of the male concern in the Bill so as to ensure some degree of balance in the final legislative document. To this end, MESA has been raising certain objections to the Bill in its present form. These have ranged from querying the standing of a man wrongfully accused of sexual harassment to be able to seek legal recourse against his accuser to its discomfort with the specialist body appointed to hear cases where sexual harassment is alleged.
Most recently, the body has questioned whether a single instance of sexual harassment should suffice for a valid claim or whether it should be merely sanctioned with an oral or written warning before any claim could be maintained.
According to the Chairman of MESA, referring to the workplace “It is here that acquaintances are made, friendships moulded, advances made, – accepted or rejected, courtships begun and families created. Many through first encounters, first sight, and first conversation… so we don’t think that the first incident should be sexual harassment. We are putting forward that any first incident should be noted and followed with a warning, after that warning sexual harassment proceedings can start…”
This approach is reminiscent of the legal position in liability for animals where there is both a strict liability rule where the owner of an animal is liable for whatever damage it may cause and the scienter rule whereby the owner is liable only where the animal has previously displayed a dangerous propensity, for example where a dog has already bitten an individual. The gist of the analogy is lost however, where some acts of sexual harassment are so egregiously offensive that it could not be seriously argued that the perpetrator thought that the victim might have been consenting to such an act.
For example, whatever might be said for the workplace being a place for initial romantic approaches, grabbing the genitals of an individual would scarcely be considered such and this act, whether first or later, should constitute sexual harassment on any objective criteria. If by first incidents, the Chairman is referring to polite invitations to dinner or a dance, then, even if the invitation is refused, there will be no need for a warning. This does not constitute sexual harassment in the absence of a previous warning that such invitations from the individual concerned were totally unwelcome and caused the invitee some consternation.