Know Your Rights: Sexual Harassment in SA

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EXPLAINER

Those accused of sexual harassment often deny that the behaviour they’re accused of is sexual harassment. But sexual harassment has harmful effects on those who experience it. It discomforts a person and makes them feel offended, humiliated or intimidated. With the help of a guide [PDF] put together by the Women’s Legal Centre (WLC), The Daily Vox explains sexual harassment in South Africa.

What is sexual harassment?

Sexual harassment is unwelcome physical, verbal, or non-verbal conduct of a sexual nature. It also does not have to happen repeatedly for it to be considered harassment.

If someone sends me an unsolicited dick pic, is that sexual harassment?

Yes, that falls under ‘non-verbal’ conduct. If a person sends you sexually explicit pictures that you did not ask for then that can be considered harassment. If a person makes lewd gestures at you or exposes their genitals to you, that counts as sexual harassment. The key is for these actions to be unwelcome.

What if someone grabs my butt? Is that classified as sexual harassment?

If a person grabs any part of your body in a sexual way without your consent, then that’s sexual harassment. Any sexual , non-consensual physical contact is harassment including the harasser rubbing their body parts against you or touching you.

How about catcalling?

Yep. Any sexual suggestions, hints, comments, jokes, remarks and phone calls are considered harassment. Even just whistling at you in a sexual manner can be considered harassment. This is as long as the behaviour is unwelcome.

What exactly does it mean when we say unwelcome? Do I have to verbally say ‘no’?

Well you could either indicate that it’s unwelcome by verbally expressing it, or you could indicate it physically. If you walk away or push the person away then that would physically indicate that their behaviour is unsolicited.

But what if the perpetrator didn’t mean to touch me in a sexual way?

The intentions of the harasser actually don’t matter. The person could say they were just joking, or they didn’t think that what they did was sexual harassment but that doesn’t matter. If their behaviour led you to feel that it was inappropriate, offensive, intimidating or humiliating and affected your human dignity, then it will be considered sexual harassment.

What if I agreed to their sexual advances under duress?

Due to power dynamics, the harasser could have coerced you into agreeing to sexual behaviour. This is still counted as sexual harassment. You could have consented to engage in sexual behaviour because you felt intimidated and afraid of what would happen if you disagreed. The harasser could influence or threaten to influence your employment circumstances if you don’t agree. With quid pro quo harassment, the person could also suggest that they will promote you or raise your salary if you engage in sexual behaviour. Sexual favouritism refers to the way a person in authority rewards only those who respond to their sexual advances. This is sexual harassment.

Is sexual harassment criminalised in South Africa?

In the workplace, yes. Sexual harassment in the workplace is usually handled under theEmployment Equity Act (EEA), read with the Code of Good Practice in the Handling of Sexual Harassment Cases in the Workplace.

I have been sexually harassed at work, what do I do?

If you have experienced sexual harassment in the workplace, there are two ways to report it: informally or formally. If you choose the informal route, you can raise the issue with your employer and the harasser. You and your employer may choose to handle it through, for example, a discussion between the employer and the harasser, or providing the harasser with a circular or memo regarding why their behaviour was inappropriate.

Alternatively, you can lodge a formal complaint. This could entail a formal investigation being launched by your employer with a hearing and recommendations by a chairperson.  

What if I’m still not happy with how my employer handles it?

There are a number of other options. If you are unhappy with your employer’s handling, you can refer your case to the Commission for Conciliation, Mediation and Arbitration (CCMA). Using the procedure set out in the Protection from Harassment Act 17 of 2011, you can apply to court for a protection order against the harasser.  Basically, a protection order is a court order that lays down what the harasser may or may not do to prevent that person from harassing you. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) also specifically outlaws harassment, including sexual harassment. If you have experienced sexual harassment in the workplace, you can bring an Equality Court application against the harasser for contravening the Equality Act, as it is considered discrimination.

Is sexual harassment beyond the workplace criminalised?

Not exactly, but sexual assault is. Under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Amendment Act) sexual assault is a criminal offence. Rape, sexual assault, self-sexual assault, and sexual grooming are examples of sex crimes in South Africa.  

“Sexual assault includes any act which causes direct or indirect contact between the victim’s genital organs, anus, or breasts and any part of the harasser’s body, or any object, without the victim’s consent,” WLC director Seehaam Samaai said in an interview with The Daily Vox. “It includes direct or indirect contact between the mouth of the harasser and the victim’s genital organs, anus, breasts, mouth or any other part of the latter’s body that could be used for sexual arousal or an act of sexual penetration. For example, someone touches your breasts or kisses you without your consent. Sexual assault also includes the harasser making you believe that that such behaviour will be engaged in,” Samaai explained.

You can lodge a complaint against the harasser at your local police station. You can also lay a charges of crimen injuria against the harasser.

What steps can I take if I am harassed in a public space?

Using the Protection from Harassment Act, you can also apply to court for a protection order against the harasser, Samaai said. This is a cost-effective civil remedy that protects a person from behaviour that may negatively impact on your rights.

Sexual harassment is a mammoth problem at universities. These days, more universities have also set up special offices to deal with sexual harassment and complaints of that nature. The department of higher education and training will also gazette a policy with input from higher education to deal with rape and violence on campus. In the meantime, make sure you find out where your university’s gender office is located.

We hope this helped you become more aware of your rights and the steps you can take against someone who violates them.

Featured image via Flickr

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