Victim shaming, burden of proof in sexual harassment cases

• Nighat Dad says law has failed victims of sexual abuse which is why they use social media to speak up

LAHORE: Sexual harassment, abuse and discrimination are pervasive in Pakistani society and go unchallenged most of the times due to certain social stigmas which hold the victims in shame for the rest of their lives. On the other hand, the law says that everyone has an inalienable right which says that a person is innocent until proven otherwise, while in almost all cases of harassment and especially, sexual harassment, the victim barely has the sort of evidence that courts traditionally accept because no one wears a camera up their sleeves at all times.

So, how can this be reconciled and how can the victim be given justice without infringing upon the rights of the alleged perpetrator?

Harassment means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature, or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply with such a request or is made a condition for employment, according to the Protection Against Harassment of Women at the Workplace Act (PAHWW) 2010.

In light of rising allegations of sexual harassment, especially on non-traditional platforms such as social media, Pakistan Today took perspectives of celebrities, legal experts and members of the civil society about the debate pertaining to harassment allegations and the burden of proof.

Nighat Dad

This is a “complicated” issue and young women have taken to social media “to express abuse” due to increasing “legal and social” pressure, said the eminent women rights activist and lawyer Nighat Dad, while speaking to Pakistan Today.

Dad explained, “Due to increasing social and legal pressures, it is easy for a victim to express the abuse perpetrated against her in an online space in an anonymous manner.”

Responding to the debate about rights of the alleged perpetrator and giving justice to the victim, the women rights activist opined, “The burden of proof must be placed upon the accused.”

She added that the existing legal structure and laws have “not been able to redress the grievances of victims”.

“If no traditional sort of evidence is available, the case can still be taken up as opposed to before, due to the workplace harassment law 2010,” she added.

In such a case, the “number of witnesses” or the “number of occurrences” can be checked. If the victim is still not satisfied with the findings of the workplace committee then “he or she can go to the provincial or federal ombudsman”.

Speaking about loopholes that still exist, Dad said, “The PAHWW places restrictions and does not apply to schools and colleges in relation to students and teacher.”

“It established a relationship between employee and employer so students cannot use this law,” added the women rights activist. “The law has a long way to go and it has failed victims which is why they use social media to speak up,” Dad also said.

While talking about the misuse of social media pertaining to harassment allegations, the lawyer told Pakistan Today, “Things should be moderate and those people that abuse social media in such a way must be punished.”

Talking about what could be done, Dad explained, “The society must believe in the victim and understand that why would a woman come out with such allegations in a society like ours?” Adding that, “She only comes out when all else has failed.”

She concluded by saying, “Placing the burden of proof on the alleged perpetrator will act as a deterrent and a counter-narrative to victim-blaming and slut-shaming must be created in the society.”

Justice (r) Nasira Javed Iqbal 

Justice (r) Iqbal told Pakistan Today, “It is mandatory under the law to constitute committees that probe harassment at public and private institutions and these committees include at least three people out of which one is at least a woman.”

Giving an example, she added, “In the Bahria College case, so many students did not have a reason to come out if the allegations were not true.”

“The committees can gather circumstantial evidence and observe the surrounding circumstances after which it is surely possible to come to a conclusion pertaining to harassment allegations,” added Iqbal.

The retired justice also said, “The Meesha Shafi-Ali Zafar case will be a test case pertaining to such issues.”

Khadija Siddiqi

Siddiqi, herself a survivor of VAW, spoke to Pakistan Today and said, “The first attack in such situations is on the victim’s character and her personal photos and past life is highlighted.”

“Things like, the girl has a problem and maybe she was not dressed properly, are the first things that are said about the victim,” added Siddiqi.

Offering a solution, she said, “Women are speaking up but are not using the appropriate forum and the courts must set a precedent in such matters.”

“Section 509 of the Pakistan Penal Code (PPC) can be used by victims to get justice,” Siddiqi further added.

Jibran Nasir

Rights activist and lawyer, Nasir explained to Pakistan Today, “We have been unable to define harassment as a society and we look at it through the lens of patriarchy.”

“Whereas the law may apply some objective tests to determine what constitutes harassment, it is also a very subjective experience at the same time as every individual be it of any gender draw their own lines,” added the rights activist.

Nasir explained, “We as a nation are yet to establish a tradition of punishing abusers.”

“On the flip side, there was, is and always will be the danger of false allegations and ruining another person’s life at every level be it personal or professional,” also added Nasir.

He further said, “We as a society are inclined to support the one claiming to be the victim with the hope that someone will not hurt the cause for a personal gain and in any event, we forget that in our society the girl already sacrifices a lot when she speaks up.”

Maliha Husain

Mehergarh Centre for Learning Executive Director Maliha Husain explained to Pakistan Today, “Every responsible organisation must form a committee to probe harassment allegation as is set down under the PAHWW.”

She added, “Additionally, political parties, National Assembly, provincial assemblies and educational institutes must set up standing inquiry committees as well.”

“In my experience working with victims, it is possible for such committees to collect facts pertaining to harassment allegations and draw a substantial conclusion,” Husain further added.

She also said, “All organisations must comply with the PAHWW.”

Meesha Shafi

The singer and actor Meesha Shafi said in a speech, “Acts of sexual harassment are committed with such impunity that sexual predators are almost never held accountable.”

“Far from accountability, most sexual predators are never even called out,” she added.

Shafi explained, “The shame that is attached to speaking up is the cause of this impunity.”

“It is time to turn the dynamic from victim-blaming to victim-believing,” the singer-actor also said.

What constitutes harassment at the workplace? (According to PAHWW)

(a) Abuse of authority:

A demand by a person in authority, such as a supervisor, for sexual favours in order for the complainant to keep or obtain certain job benefits, be it a wage increase, a promotion, training opportunity, a transfer or the job itself.

(b) Creating a hostile environment:

Any unwelcome sexual advance, request for sexual favours or other verbal or physical conduct of a sexual nature, which interferes with an individual’s work performance or creates an intimidating, hostile, abusive or offensive work environment.

The typical “hostile environment” claim, in general, requires finding of a pattern of offensive conduct, however, in cases where the harassment is particularly severe, such as in cases involving physical contact, a single offensive incident will constitute a violation.

(c) Retaliation:

The refusal to grant a sexual favour can result in retaliation, which may include limiting the employee’s options for future promotions or training, distorting the evaluation reports, generating gossip against the employee or other ways of limiting access to his/her rights.