Law Watch
Cross examining sexual harassment
under our laws
Ferdous Rahman
 |
Photo: banglawire.com |
Islam metaphors women as princess and in Hinduism females are the face of deity. But how are our females now? Presently women right is one of the burning issues. There have been several attempts to protect the interest and ensure the safety of females. Many laws have been enacted for this purpose. Most of such laws cover only when a female has been subjected to physical assault such as rape or for murder. So that physical contact is essential for prosecution (except provocation for suicide). But mental torture has never been recognised as an offence in any of these laws. In such torture, there remains neither any physical mark nor any physical contact with the perpetrator but leaves the same disaster on the woman subjected to. How mental torture could be termed?
Sexual harassment
The term sexual harassment has not been defined in Bangladesh yet as we have no statutory laws in this regard. But a guideline has been derived from High Court Division in pursuance of a writ petition by the Bangladesh National Women Lawyers Association (BNWLA) in 2009 (Writ Petition No. 5916 of 2008). As per this guideline Sexual Harassment includes-
a. Unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances;
b. Attempts or efforts to establish physical relation having sexual implication by abuse of administrative, authoritative or professional powers;
c. Sexually coloured verbal representation;
d. Demand or request for sexual favours;
e. Showing pornography;
f. Sexually coloured remark or gesture;
g. Indecent gesture, teasing through abusive language, stalking, joking having sexual implication.
h. Insult through letters, telephone calls, cell phone calls, SMS, pottering, notice, cartoon, writing on bench, chair, table, notice boards, walls of office, factory, classroom, washroom having sexual implication.
i. Taking still or video photographs for the purpose of blackmailing and character assassination;
j. Preventing participation in sports, cultural, organizational and academic activities on the ground of sex and/or for the purpose of sexual harassment;
k. Making love proposal and exerting pressure or posing threats in case of refusal to love proposal;
l. Attempt to establish sexual relation by intimidation, deception or false assurance.
Sexual harassment in Bangladesh
People in Bangladesh are much more concern about violence upon women at home for dowry, polygamy or other domestic issues. But sexual harassment is an issue, which is not confined within the home only. A female child or women is not safe in society now. An adult female is facing sexual harassment at her office and a girl child at her school. In spite of these no public places like road (crowded or free), market, public transport etc are safe for female.
Everyday we read several cases on suicide of young girls for such harassment. These are not any scattered incidents rather an outcome of lack of justice. Many cases on such harassment and afterwards suicides are left unpunished therefore people are losing their hope of justice from our present administration of justice. Except this still our conservative society blames females for such incidents. Those female who has not committed suicide leads her life with the blame of the society.
Legal mechanism in Bangladesh on sexual harassment
Different laws with specific sections deal with the offence of such harassment distinct from rape or murder. Some of such laws are: section 354 of Penal Code 1860 for two years imprisonment for assault or criminal force to a woman with intent to outrage her modesty, section 509 of Penal Code for simple imprisonment of one year or fine or both for uttering any words, making any sound or gesture to insult the modesty of any women and Section 10 of Nari O Shishu Nirjatan Daman Ain (Act) for rigorous imprisonment for a period between three and ten years for touching the body of a woman for the purpose of gratification of sexual desire. But these laws are vague enough to cover the present act of sexual harassment defined by the HCD in its guidelines and also not oriented to the present social status. The least conviction rate under these sections shows how much difficult it is to prove the acts with required 'Mens Rea' under these sections for conviction.
But it is a positive development for our legal regime that our High Court Division has given a judgment on 2009 as a result of a writ petition by BNWLA with some directives in the form of guidelines. This 'guidelines' will fill the legislative vacuum in laws on sexual harassment within the meaning of Article 111 of our constitution. Its aims are to create awareness among people about sexual harassment, the consequences about sexual harassment.
These 'guidelines' is applicable to all work places and educational institutions in both public and private sectors within the territory of Bangladesh. These guidelines include the provisions on taking preventive measures and disciplinary action, mechanism for complaints at every workplaces and educational institutions, formation of a complaint committee, procedure of complaint committee, punishment for sexual harassment.
Visionary approach
After the directives from the High Court Division we found the legal regime for preventing and punishing the sexual harassment. HCD also directed a proposed amendment to Nari o Shishu Nirjatan Daman Ain 2000 to add section 10(ka) namely punishment for sexual harassment. It proposed the punishment of rigorous imprisonment for not less than one year but not exceeding seven years and also for fine but whether this will be enough to bring the cases before the court and provide justice to the females suffered? In our court, tribunal or any complaint committee, female victims bringing any allegation of rape or sexual harassment used to face many weird questions, which are no less defamatory then the sexual harassment complained against and also harmful to their psychological state. Again some females are afraid of stigma in society. They feel lack of protection during the proceeding when the accused is backed by any influential part of the society.
These entire attempts would be in vain unless we can encourage the women survivors to go before the court and get justice. And this will be possible only when a statutory law addressing the protection of victims from threat of accused and also from defamatory question at the stage of proceedings. Therefore it is the demand of time to enact the 'Victim and Witness Protection Act' for effective enforcement of the guidelines of High Court Division on sexual harassment.
The writer is studying Law at the University of Dhaka.
