Perils of accusation without proof


At the core of sexual harassment in the workplace and elsewhere is rife sexism which results in persons, especially women, being treated in a very sexualized manner. Consequently, it is overwhelmingly gendered. And too often men view such violence against women as complimentary or just a harmless joke. We have known for quite some time that a workplace policy on sexual harassment is not only critical for a hassle-free workplace but also for a healthy one. So I read the sexual harassment legislation of Barbados with great interest, and it is clear that it contains several provisions that should put the minds of both men and women who have suffered the emotional trauma of sexual harassment at ease.
The legislation marks an important moment in the development of modern social legislation and an education programme and a pro-active approach by employers will not only contribute to greater employee awareness, but will hopefully reduce the incidence of sexual harassment which creates a hostile work environment for both men and women who are victims of such.
I am not completely sure that I agree with the definition of sexual harassment. Should I assume that a male referring to me as “sweetheart” is sexual harassment? In every informal meeting, I refer to almost everyone irrespective of age, gender, occupation, race, religion and sexual orientation (except my foes and to be honest, persons familiar to me with whom I keep a respectable distance) as “sweets”. Prior to that, it was “darling”. And I do mean everyone! It is my “hello”. Where does that place me? Admittedly, I do understand social intelligence which is perhaps the reason why in hierarchical structures I would instinctively refrain from referring to my superiors as “sweets”.
But admittedly, being called “sweetheart” from an unknown male especially when you are wearing your professional hat can be interpreted as condescending and sexist given that your male colleagues are not described in the same manner by the same unknown male. It is the liberties that men take with women which unfortunately we tend to pass off as cultural and harmless. Personally, I am not overly affected by this as I understand its genesis and I am a strong black woman. But there are others, quite rightly, who might feel devalued by the unmerited and unwanted term of endearment. The issue of subjectivity, therefore, is sometimes pertinent.
But the Act extends to the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person. It is true that with social media and the extensive use of WhatsApp today that we often receive annoying jokes. But in that situation, I delete the offensive message and indicate that I do not appreciate such jokes. Matter closed. But the other actions identified as sexual harassment are reasonable. The Act specifically states under Section 3 (1), that sexual harassment includes the following as well:

(b) the initiation of uninvited physical contact with a person;

(c) the initiation of unwelcome sexual advances or the requests of sexual favours from a person;

(d) asking a person intrusive questions that are of a sexual nature that pertain to that person’s private life;

(e) transmitting sexually offensive writing or material of any kind;

(f) making sexually offensive telephone calls to a person;

(g) or any other sexually suggestive conduct of an offensive nature

Everything, of course, redounds to a reasonable person. So the Act specifically stresses “reasonableness” under circumstances where a reasonable person would consider the conduct to be offensive. The Act, therefore, seeks to conclusively clarify for all reasonable people, what is sexual harassment, and in the process opens the door to litigation. But much of the education around the Act is left to the workplace which must, therefore, be proactive to avoid its occurrence.
With the current global climate offering a more receptive environment for victims to tell their stories, employers can expect even more reports. However, we are aware that even if a victim does report sexual harassment, it is often difficult to prove its occurrence. This is largely because claims of sexual harassment are often rooted in circumstantial evidence and because either the conduct occurs when the two parties are alone or other employees are afraid of jeopardizing their own jobs, and so witnesses are often unwilling to testify in support of the victim.
Exposing sexual harassment that occurs within the workplace inclusive of universities, schools and other places of higher education and making it visible is not easy, even where existing legislation makes a valiant attempt to define, describe and offer recourse for victims of such a crime. In some institutions including those of higher education, given their hierarchical nature which research has shown provides an enabling environment for many unfortunates (especially those of higher education), it is an extremely onerous task to expose sexual harassment.
Notably, in institutions of higher learning where students are structurally positioned to trust those who teach them and those they learn from, it “creates a possibility for institutionally enabled manipulation of students by those upon whom they are intellectually dependent”. Moreover, through the assessment system, teaching staff are positioned to assess how well a student has understood, written and argued, and the merits of those arguments. These judgements are permanently registered on the student’s academic record. And students are well aware of this relationship of power, which can breed vulnerability. Opportunities to guide, can, and have been used to provide an entry point to pursue sexual access to the student. So teaching staff must be careful when sending messages to students that may suggest that an offer to guide and to mentor is associated with a return favour.
I am aware that many believe that we live in a “gift economy” or an economy of reciprocity and I here use it in the sense that some cultural anthropologists do, whether immediate or delayed exchange. Cultural anthropologists speak to the non-market exchange of goods or labour ranging from direct barter (immediate exchange) to forms of gift exchange where a return is eventually expected (delayed exchange) as in the exchange of birthday or Christmas gifts. So everything must be returned. Have you ever heard people say to you, I owe you my job, I owe you my position, I owe you your signature on a loan application, I owe you my higher education and so on and so forth?
Conversely, are you not confronted with the expectation that you are owed, because you placed your signature on a loan application for a boyfriend, girlfriend, colleague, a neighbour, recommended someone for a job, employed someone and so on. A gift or exchange economy! And so too, students often feel compelled to accept invitations from their teachers/lecturers as they perceive such meetings as the only means by which support and assistance can be gained. Consequently, one-on-one meetings with students can become dates. But teaching staff too can often be the target of sexual harassment by students.
In March 2018, the Women and Equalities Committee of the UK began the first phase in its oral hearings on sexual harassment in the workplace. One of its first witnesses was Zelda Perkins, a British national working for Harry Weinstein as a production assistant, who accused Weinstein of rape and assault. Perkins acknowledged two of the greatest difficulties in sexual harassment cases, that is, the absence of proof, and the power differentials that exist. What options were available to her? Few. Perkins, on the advice of her lawyers, signed a non-disclosure agreement with Weinstein.
In 2016, the UK based Everyday Sexism Project and the Trade Union Congress published a major report which showed that 52 percent of women in the UK had experienced unwanted behaviour in the workplace including groping, sexual advances and inappropriate jokes. Other key findings were:
Thirty-five per cent of women have heard comments of a sexual nature being made about other women in the workplace 32 per cent of women have been subject to unwelcome jokes of a sexual nature.Twenty-eight per cent of women have been subject to comments of a sexual nature about their body or clothes.Nearly one-quarter of women have experienced unwanted touching (such as a hand on the knee or lower back).One-fifth of women have experienced unwanted sexual advances.More than one in ten women reported experiencing unwanted sexual touching or attempts to kiss them.In the vast majority of cases, the perpetrator was a male colleague, with nearly one in five reporting that their direct manager or someone else with direct authority over them was the perpetrator.Four out of five women did not report the sexual harassment to their employer.Sexual harassment is indeed serious, and we should all familiarise ourselves with the new legislation in Barbados. It is also important that we familiarise ourselves with the ramifications of being found guilty of having sexually harassed an individual which carries a reasonable fine of BD$5,000.00 and or a fine of imprisonment of one (1) year. Furthermore, without seeking to trivialize the sexual harassment experienced by so many who have chosen to remain silent, the Act like every good piece of legislation, also makes provision not just for sanctions for violation, but for making false accusations which carries a more stringent punishment. In this case, under the Act, a person found guilty of making a false accusation can receive a prison sentence of up to 2 years and or a maximum fine of BD$10,000.00. False accusations are not unheard of and many reputations have been ruined by these accusations.
However, my major concern with this particular provision is that it clearly considers a ruined reputation of greater value than a diminished self-confidence, a diminished sense of self-worth, inculcation of fear, exploitation, violence, discrimination and sometimes loss of livelihood that so many women and men experience on a daily basis. But it is time that we move beyond workplace harassment and make such violence a criminal offence. Indeed, all forms of sexual harassment should be penalized and the new legislation, important as it is, does not address other non-work related forms of sexual harassment.

(Cynthia Barrow Giles is a senior lecturer in political science at the University of the West Indies, Cave Hill Campus)

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