Time to toughen up the sexual harassment act

Sexual harassment should be criminalised, argues the author.

Photo of protest

Students from Gauteng universities protest against “rape culture” in May 2017. Photo: Ihsaan Haffejee

By Thandeka Kathi

30 August 2017

“I do not understand why you are like this. It is not as if he raped you or something. Why are you even fighting this? You are not the first women to go through this – fighting it is futile.”

This was the response that Nelly (not her real name), a woman working for a large parastatal, received when she reported her manager for sexually harassing her to her human resources officer.

The United Nations Secretary-General’s campaign to end violence against women, UNITE, lists sexual harassment as one of the ways in which violence against women manifests itself. It says that “violence against women takes many forms – physical, sexual, psychological and economic.”

Sexual harassment is the unwanted sexual imposition of sexual requests – in the context of a relationship of unequal power – from a person who knows or ought to have known that such imposition is unwelcome. Sexual harassment can take the form of unwelcome behaviour such as remarks, messages or suggestions of a sexual nature. The effect of the behaviour must be such that it humiliates, offends or intimidates the person on the receiving end, and another person would find such behaviour to be humiliating, offensive and intimidating.

Needless to say, Nelly’s sexual harassment was exacerbated by the response from human resources. With no repercussions coming his way, the manager continued to send her emails of a sexual nature, constantly telling her that she looked sexy and that he would love to perform lewd sexual acts on her. She continued complaining to HR and nothing was done to remedy the situation for six years. What followed was intimidation from her employer where Nelly was denied leave, singled out and forced to undergo a lie detector test to show that she was truthful in her allegations.

Nelly has been engaged in a fierce legal fight with her employer for these past six years. She has incurred financial costs and medical costs from treating the psychological and physiological stress that the ordeal has had on her health. Her employer had an extensive, detailed and legally sound policy on how to address sexual harassment in the workplace but chose to ignore it.

Nelly’s employer failed her for over six years and we as society have failed her and continue to fail other women in her situation by placing protection against sexual harassment solely under employment law. As progressive as employment law is, it is not enough to protect women who are sexually harassed in their places of employment.

Although sexual harassment is filed under the Protection from Harassment Act (PFHA), the Act does not offer adequate protection to a victim of sexual harassment. While the PFHA acknowledges the conduct of sexual harassment, it does not punish such conduct. The victim is given an opportunity to apply for a protection order if the sexual harassment persists then the matter can be turned into a criminal case on the basis of contravening the protection order. The act thus does not criminalise sexual harassment. What it does is to criminalise the conduct of the perpetrator should he or she fail to adhere to a protection order against him or her.

Consequently, the only relief that is available, in South Africa, to a victim of sexual harassment is of a civil nature. It falls in the hands of the victim to prove on a balance of probabilities that she was indeed sexually harassed. This is absurd. The victim does not have the resources that the state would ordinarily have at her disposal. What follows is months and sometimes years of secondary trauma in trying to prove sexual harassment such as emotional exhaustion, fearfulness, shame and physical illness.

While many can agree that sexual harassment has a negative effect on a women’s economic, psychological and physical health, a few people truly understand the trauma that women go through as a result of sexual harassment.In her article The Present State of Sexual Harassment Law: Perpetuating Post Traumatic Stress Disorder in Sexually Harassed Women, Jennifer L Vinciguerra argues that sexual harassment can result in severe trauma. Like rape and other forms of sexual violence, sexual harassment can result in Post-Traumatic Stress Disorder, but it is not treated with anything near the same level of seriousness.

Vinciguerra argues that the trauma of sexual harassment is compounded by the legal burden placed on victims of sexual harassment when they try to hold their employers liable for failing to protect them from the harassment that they endure at work. For example the burden of notifying the employer of harassment lies squarely with the victim; she has to relive the experience and employers are not always receptive to their cries.

The fundamental values of society demand that women are protected from violence irrespective of the nature of such violence. The hierarchy that society has placed on trauma is unfounded and further violates the victims of sexual harassment. Is it not time for the state, with all its resources, to intervene on behalf of sexually harassed women and criminalise sexual harassment?

The author is a candidate attorney at the Centre for Applied Legal Studies based at Wits University.

Views expressed are not necessarily GroundUp’s.