Published 15 November 2019, The Daily Tribune
Our firm had been approached quite a number of times by victims of sexual harassment who find themselves unable to sue for sexual harassment.
What do I mean by this? Simply, the act complained of clearly constituted harassment of a sexual nature but could not fall under the definition of sexual harassment, the crime, because the perpetrator was neither an employer or superior at work but a colleague of co-equal rank. Administratively, the act may be considered sexual harassment and a civil case may be filed for damages. However, if the aggrieved party wanted to pursue a criminal case, the perpetrator may only be charged with Unjust Vexation or, at most, Acts of Lasciviousness (assuming the elements of rape were not present). Said crimes however, entail a much lighter penalty than Sexual Harassment as defined under Republic Act 7877, which is punishable by imprisonment of not less than one (1) month nor more than six (6) months.
Indeed, many acts that literature would define as sexual harassment were left out under the Sexual Harassment Law, particularly acts that occur in public spaces like on the streets, where acts of brazen sexual harassment occur.
Then came Republic Act No. 11313.
On 17 April 2019, President Rodrigo Duterte signed the Safe Spaces Act into law.
It expanded the definition of Sexual Harassment in the Workplace and Education/Training institutions to include the following:
(a) An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;
(b) A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;
(c) A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient: Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee; and
Therefore, it is no longer necessary for the aggressor to be one’s superior. A peer or someone of lower rank may now be held criminally liable under this expanded definition of sexual harassment.
The main difference between the sexual harassment under RA 7877 and RA 11313 is that under the former law, consent by the victim is immaterial. Section 3 of RA 7877 provides: “Work, education or training-related sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request, or requirement is accepted by the object of said act.” The rationale of the law is there is an imbalance of power between the aggressor and victim because of the former’s position or designation. Therefore, the employee or trainee is not in a position to freely act or give meaningful consent. Such imbalance of power is presumed not to exist under RA 11313. Hence for a peer to be guilty of sexually harassing another peer, the sexual advances must be unwelcome or offensive to the victim. Otherwise, the act will be deemed consensual and therefore not harassment.
Cognizant of the fact that many forms of sexual harassment happen in the streets, the law also punishes “gender-based streets and public spaces sexual harassment” which pertain to any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks. It includes catcalling, wolf-whistling, unwanted invitations, misogynistic, transphobic, homophobic and sexist slurs, persistent uninvited comments or gestures on a person’s appearance, relentless requests for personal details, statement of sexual comments and suggestions, public masturbation or flashing of private parts, groping, or any advances, whether verbal or physical, that is unwanted and has threatened one’s sense of personal space and physical safety, and committed in public spaces such as alleys, roads, sidewalks and parks.
The law covers these acts when performed in buildings, schools, churches, restaurants, malls, public washrooms, bars, internet shops, public markets, transportation terminals or public utility vehicles.
Simple advice. Be prudent in all your actions.
For comments and questions, please send an email to cabdo@divinalaw.com.
