An Act that is called for

Someone I met for (freelance) work wouldn’t stop messaging me on WhatsApp. First it was just friendly but later it became flirtatious. He started badgering me to hook up. When I called him out after he ignored my many ‘no’s, he screencaptured our exchanges and posted them on Facebook, calling me a ***tease.

LIKE many women worldwide fired up by the #MeToo movement, Alina (not her real name) found the courage to speak up about her experience of being sexually harassed.

However, it could be difficult for the 20-something designer to get legal redress. As a freelance worker, she is not covered by the main legal provisions for sexual harassment in Malaysia, which comes under the Employment Act.

Lawyer Syahredzan Johan says victims of sexual harassment that occurs through electronic communications can lodge a complaint with the Malaysian Communications and Multimedia Commission (MCMC) under Section 233 of the Communications and Multimedia Act.

The problem is, says All Women’s Action Society (AWAM) training consultant Betty Yeoh, they might have to wait for a long time.

“The MCMC will take immediate action but it will take them a long time to get to the perpetrator; longer if the IP is in another country.”

This is one of the reasons why women’s groups are working with the Women, Family and Community Development Ministry to review the Sexual Harassment Bill, says Yeoh.

“Cyber sexual harassment and threats are growing but they are not sufficiently covered by existing laws,” says Yeoh, who is heading the sexual harassment Bill review committee under women’s group coalition Joint Action Group for Gender Equality (JAG).

First drafted in 2001, the sexual harassment Bill has been talked about for more than a decade.

Now, JAG members and the National Council of Women’s Organisations (NCWO) are optimistic that the Bill will finally be passed with the nod from the ministry.

This is not to say that Malaysian women are not protected at all from sexual harassment under the law. As the ministry’s policy and strategic planning division points out, there is the Penal Code’s Section 509, which says it is a crime to intentionally insult the modesty of another person, whether through words, gestures and/or sounds, and carries a custodial penalty of up to five years.

Then there is the Employment Act, which makes it mandatory for all employers to have a procedure dealing with complaints of sexual harassment and to inquire into the complaints.

Syahredzan highlights a landmark case which recognised the tort of sexual harassment. In the case, the victim filed a complaint of sexual harassment against her boss. He, however, retaliated by suing her for defamation. She counter-sued for sexual harassment. The Federal Court ruled in favour of the woman, awarding her general damages amounting to RM100,000.

This legal avenue is applicable for all, says Syahredzan.

“Although that particular case was between a male superior and female subordinate, it is applicable to different genders.”

But there are still gaps in the laws, especially in its mechanism and enforcement, says Yeoh.

“For one, the Penal Code does not mention sexual harassment explicitly in the law. And you have to prove it beyond reasonable doubt. Sexual harassment cases are usually ‘he says, she says’ situations. Most people don’t go around anticipating to be sexually harassed and gathering evidence when they go out. That is why we need a more comprehensive law with a broader scope.”

JAG is looking at the balance of probabilities in the Bill.

“If there is enough evidence that shows the suspect likely to have sexually harassed the victim, then we should find him guilty,” she says, adding that in sexual harassment incidents, intention does not matter.

“The harasser might say he meant nothing with it, he was just joking, etc. But it depends on the victim’s feelings and response – if it is unwanted, if it makes her feel uncomfortable and harassed, and if it creates a hostile environment, then it is sexual harassment,” says Yeoh.

The Employment Act only covers the workplace and does not cover contract or freelance workers, she points out. This will become problematic in the future as the nature of work changes with technology disruption – even now more of the young are going into freelance or part-time work. The Act is also not applicable in Sabah and Sarawak.

Referring to calls to amend the Employment Act instead of introducing a new law, Yeoh says: “The Employment Act is very specific in that it looks at the welfare of workers and working conditions. It will be easier and more practical if we come up with a standalone Act.”

Ultimately, she says, it will be better for victims to have an alternative recourse under a sexual harassment Bill.

Yeoh acknowledges the Government’s efforts to prevent sexual harassment in the workplace, including the introduction of the Code of Practice on the Prevention and Eradication of Sexual Harassment in 1999.

“Unfortunately, the code is merely a guideline for employers and does not have the force of law,” she says.

It has been reported that as of August 2010, only 400 of 450,000 registered and active companies have implemented the code.

Malaysian Employers Federation executive director Datuk Shamsuddin Bardan says it is unfair to just blame the employers.

“Many of the companies are small or medium-sized – some with less than 10 employees – so sexual harassment is not their top priority.

“However, many have taken action against harassers when they receive complaints from their employees, even if no sexual harassment policy is in place.”

Shamsuddin concedes that awareness is low.

“The Government needs to create awareness on what is sexual harassment and what victims can do,” he says.

Yeoh proposes that the Government duplicate the Occupational Health and Safety Act (OSHA) to compel employers to do the necessary.

“Under OSHA, companies with more than 40 employees are required to come up with a safety policy. We can enforce the same rule with sexual harassment policy and mechanism. If the companies are small, maybe their (umbrella) organisations can have their own policy for members,” she suggests.

“At the workplace, we need to implement an anti-retaliation policy which will encourage people to report their case without fear of reprisal from employers. The Bill also seeks to establish a tribunal to conduct the inquiry quickly.”

To prevent false accusations, JAG has put in the necessary clause in the Bill, she adds.

“We have to be fair to all parties. Crucially, we need clear procedures on how complaints are to be made and how to take action. There should also be a relevant contact person who can assist victims and provide post-trauma counselling.”

But this point remains: victims are still reluctant, many out of fear, to come forward.

This is due to the patriarchal culture of our society, Yeoh admits.

“Just look at who gets the blame in these cases. We always ask ‘what did she do?’, ‘what was she wearing?’. The blame is always on the girls, it is our culture. It is the way we are socialised.”

Legal advocate Animah Kosai says the blame game is also due to the “macho culture”.

“Powerful men are surrounded by ‘blind followers’ who do not want to stand up to him and are only too willing to tear a woman apart should she even dare to accuse him of wrongdoing,” she says, citing a case in which a political leader at a town hall meeting was asked by a woman about measures to reduce street crimes as she was worried about her safety.

“He replied ‘it’s because you’re so beautiful. The next time you go out, wear shabby clothes.’ Many in the audience laughed and wolf-whistled,” she recounts, saying that the fear of retaliation is why many women find it difficult to speak up about sexual harassment.

“You will always get a bad man or woman. But it’s the people surrounding the offender – who turn a blind eye or enable it – who allow it to get bigger,” says Animah.

Fundamentally, we need a culture change, but a specific law is vital, Yeoh says: “Sexual harassment law is not to make life difficult for employers and men. It is to create a harassment-free and safer environment for all of us.”