New Sexual Harassment Bill Moves Closer to Law in Malaysia | Women News

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Kuala Lumpur, Malaysia – In college, three years ago, Esma* felt persistent pain down her arm and went to the campus clinic.

When she was lying on the examination bed, the doctor asked her to unbutton the top of her dress. He said a lump on her chest could be causing the pain and told her to lower her bra.

“I did what he asked me to do because there was nothing suspicious at first. I thought he was doing his job,” she told Al Jazeera.

She quickly discovered the opposite.

The doctor told her she had beautiful breasts, kissing one and squeezing her nipples. It took him about 30 seconds to fully understand what was going on.

” I said nothing. I was too shocked,” Esma said. “I just sat down and got dressed, and he sat in his chair to write me a medical prescription for my arm – it didn’t mention the bumps. Then I left.

Reports of sexual harassment are not uncommon in Malaysia, but despite the existence of various legal mechanisms, many women say there is still no effective remedy.

They hope the long-awaited Anti-Sexual Harassment Bill, which had its first parliamentary reading in December last year, will soon become law. A second reading will take place this month.

“This bill would apply to anyone, in any setting,” said Daniella Zulkifili of the Association of Women Lawyers, who helped draft the bill.

The legislation would broaden the current and piecemeal application of sexual harassment laws – going beyond the workplace to cover events in any setting, such as educational institutions, clinics, public transport, sports clubs, even online.

decades of debate

For women’s rights activists, it was a long struggle.

The first discussions for more comprehensive laws on sexual harassment began in the 1990s. But due to a lack of political will, real progress did not occur until the 2018 elections led to a change of Malaysian government for the first time since independence.

Later political maneuverings brought some of the old guard back to power, but the bill continues to move forward.

Taking action against sexual harassment and assault under the Penal Code can be time-consuming and traumatic for survivors [File: Stringer/EPA]

Now 21, Esma believes the mere existence of such an act would help survivors feel that the offense is taken seriously.

“I think mentally it would help me a lot. I could recover faster,” she said. I can’t move forward.

Esma told her college supervisor what happened right after she was assaulted, but felt the manager was skeptical of her story.

The next day, she ignored the doctor’s calls and he texted her saying she might have something in her breast and should see a specialist. Esma had a CT scan the next day but found no cause for concern. The same day, she surrendered to the police.

The doctor was later charged under Section 354 of Malaysia’s Penal Code for ‘assaulting or using criminal force on a person with intent to indecently offend’ as there is no offence. specific for “sexual harassment”. Esma believes that her university is also to blame; she should have been safe there.

According to Zulkifili, seeking compensation under the Penal Code can be difficult. Many cases may not legally constitute a crime due to the need for a certain degree of seriousness and specific items to be met, as well as a standard of proof beyond a reasonable doubt.

Esma’s case is still ongoing, but the legal process has been bruised. She was not allowed to be accompanied to court despite her request and felt compelled to beg her headmaster to testify on her behalf.

“She was afraid to come. I do not know why. I’m the one who needs help. I feel like no one tried to help me. I had to do everything on my own,” Esma said.

More legal options

In addition to seeking justice in criminal courts, since 2016 victims can sue their sexual harassers in civil courts for monetary compensation. But not everyone can afford a lawyer, and the process can take years.

The new bill expands legal options for survivors by creating a special court, held behind closed doors, tried by experts in the law and in sexual harassment matters.

He would have the power to order a range of remedies in addition to monetary compensation, such as an apology or advice, and should do so within 60 days. The required standard of proof is based on a balance of probabilities – as in civil cases – while the sexual harasser’s past conduct or conversations the survivor had about their experience could be presented as evidence.

A sexual harassment case found to be a crime can be brought to court at the same time.

The court, however, does not allow legal representation of the parties, which critics say could deter a survivor from filing a complaint for fear of confronting her stalker herself.

However, such a court could help Jun*, 26, who feels abandoned by the current system.

Earlier this year, when Jun’s company was hosting an event in a conference room, she went to her small adjoining room to turn off the television. As she got up to do so, she says a male colleague came up behind her and pressed against her, pinning her to a side wall as he apparently searched for something.

“He has a big belly and I could feel it sticking to my back. He even whispered in my ear that he wanted to ‘crush’ me,” she told Al Jazeera, partly in Mandarin.

Returning to work a few days after the public holidays, Jun reported the incident to her manager, but felt blamed for it.

“He said it was because I wore a short skirt, I had an easily intimidated personality. He asked me why I didn’t fight back,” she said in a voice trembling.” I struggled, but at that moment I was panicking too. I had to calm down. »

According to a 2020 survey of 1,010 Malaysian women, 62% had experienced sexual harassment at work.

A 2011 amendment to the Jobs Act orders an employer receiving such complaints to conduct an internal investigation, but how to do so is left to the discretion of the employer. “Some organizations are looking for independent members to form the panel,” Zulkifili said, “but there is no such requirement.”

Later, Jun filed a formal complaint. There were no surveillance cameras in the recording room, but there was one monitoring the main area. However, the pictures did not help her. The company’s investigation concluded that no sexual harassment had taken place. Jun says the positioning of the camera outside the recording room made it difficult to see what really happened.

She says another male colleague in the recording room witnessed the incident but laughed it off as a joke and would not support her complaint. She also says that her stalker told everyone that she was the one who seduced him, and that the investigation was unfair because her stalker was friends with the company boss’s brother.

Eventually, Jun felt pressured to resign from her job, but decided not to sue for constructive dismissal under the Industrial Relations Act, which could offer monetary compensation. She feared it would weaken her case.

” I do not want any money. I want him to be punished and I want him to sincerely apologize to me,” she said.

“Scream and Push It Back”

Discouraged from pursuing official channels, other women shared their experiences in the press and on social media, but also struggled to hold sexual harassers accountable.

In 2020, university student “Soleil Ching” held a press conference to expose the professor who had sexually harassed her, after failing to obtain a resolution from her university or the police. She also funded money to sue him in civil court.

Last April, Ain Husniza, then a 17-year-old student, took to TikTok to complain about a teacher at her school who had joked about the rape in front of her class. She never named the teacher publicly, but he sued her for defamation anyway. The teacher is now being defended by government-appointed lawyers in her countersuit.

More recently, Yihwen Chen, a journalist, made a meditative short film, The Boys Club, about her experience of being sexually harassed while filming a feature documentary – by an indirect subject of the documentary – and how she felt. not supported by her bosses when she reported this. She finally felt compelled to leave.

Malaysian teenager Ain Husniza, who reported her teacher for making a rape joke, speaks to media backed by her father and supporters outside a police station
Ain Husniza Saiful Nizam (centre in pink sneakers) is facing a government supporter for libel after criticizing a teacher for making a rape joke. She didn’t name him [File: Arif Kartono/AFP]

Despite some progress, even the new bill falls short, campaigners say.

In recent public statements, the Joint Action Group for Gender Equality – which includes the Association of Women Lawyers (AWL) and the Women’s Aid Organization (WAO) – called for amendments.

Activists called for the definition of sexual harassment to be broadened beyond interactions between two individuals to include hostile environments that allow sexual harassment, and advocated for placing a duty on organizations to prevent such incidents and deal with them. take care of complaints.

“A lot of cases are down to power dynamics, and there can be a lot of backlash on the survivors,” noted WAO’s campaigns manager Abinaya Mohan. “So the prohibition on further victimization is important. There must be a protection mechanism in place so that complainants can speak freely.

Citing a 2019 YouGov survey of 1,002 Malaysians, Betty Yeoh of women’s rights social enterprise ENGENDER Consultancy – which also helped draft the bill – adds: “Sexual harassment affects 35% of women and 17% of men in Malaysia. This bill is not just for women, but for all citizens of this country.

Until that happens, Jun, repeatedly traumatized from being disbelieving, has advice for women who find themselves sexually harassed.

“Scream and push him away. Then you will have a better case under the law.

*Names have been changed to protect the identities of the survivors.

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