CLAUSE 48: SEXUAL HARASSMENT

WELCOME back to Kwakha Indvodza’s weekly column on the SODV Act (2018). Using our experience training on the SODV Act in communities and workplaces across the country, this column is written to help all emaSwati learn about the contents of the Act and its application in our daily lives.

This week we examine Clause 48, which details sexual harassment. 
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature which could make a person feel offended.

Both women and men can be sexually harassed and this can occur at any social setting. While we’ve seen a lot of conversations and support for people who have experienced sexual assault, we are aware that there are still a lot of people who don’t know how sexual harassment occurs hence today’s topic.

Before we get into the legal position of this week’s topic, let us look at the devastating impact of sexual harassment. Sexual harassment can violate one’s dignity causing an individual to feel intimidated, degraded and humiliated. Being sexually harassed affects people in different ways. It can cause stress, withdrawal from social situations and depression.

A pupil who experiences this kind of sexual violence in school may stop doing their work and taking part in school-related activities. Sexual harassment can undermine a pupil’s sense of dignity, disrupt their education and interfere with their ability to reach full potential in life. Individuals who experience sexual harassment in the workplace may be less productive and unable to concentrate. Sexual violence left unchecked has the potential to escalate to violent behaviour, including sexual assault.

Section 48 of the SODV Act describing sexual harassment states that sexual harassment is committed where:
(a) A person subjects another person to an unsolicited act of physical intimacy, including but not limited to, physical contact such as patting, pinching or touching in a sexual way or unnecessary familiarity such as deliberately brushing against another;

(b) A person makes an unsolicited demand or request, whether directly or by implication, for sexual favours from the other person;
(d) The person engaging in the conduct described in paragraphs (a), (b) or (c), does so;
(i) With the intention to offend, humiliate or intimidate the other person; or
(ii) In circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Such instances may be subject to grey areas, however, the key thing is putting consent and respect for the other person at the forefront of your actions. The ‘unwelcomeness’ of the behaviour becomes the standard criterion for differentiating between consensual sexual behaviour against outright mistreatment.

Harassment that is inherently offensive in nature, such as physical violence and rape, is usually banned outright and associated with severe penalties. In such cases, the victim is not required to demonstrate that the behaviour is unwelcome because there is no question or doubt that the behaviour essentially exhibits sexual harassment (SWABCHA 2018). Therefore, defining sexual harassment as behaviour that is unwelcome to the recipient allows a distinction to be made between inoffensive and unacceptable behaviour depending on the context in which it takes place.

The law has been able to give out a full explanation of how sexual harassment may take place, from this description it has been made clear that this law criminalises behaviour that subjects another to uninvited sexual acts. It is important that we know that sexual harassment is not only physical but can be verbal (including: sexual remarks or demands, dirty jokes or stories), physical (grabbing, rubbing, touching, pinching in a sexual way) or visual (display of naked pictures or sex-related objects, obscene gestures).

Some examples of sexual harassment:
A female boss tapping a male/female employee’s buttocks;
An intern offered a job in exchange for sex and
A lecturer making sexual remarks at a student.

Often, sexual harassment is about power and control and never about attraction or desirability. Victims are often afraid to report cases of sexual harassment because of the power dynamics involved. Sexual harassment is a pervasive problem with a devastating toll on anyone who experiences it. It can violate one’s dignity, causing an individual to feel intimidated, degraded and humiliated. The psychological effects may include anxiety, depression, lowered self-esteem and feelings of sadness, fear or shame.

The law against sexual harassment is designed to protect us from harassment by bosses, supervisors, co-workers, strangers on the street, customers, clients etc. This law applies to both men and women, and prohibits sexual harassment whether it is directed at someone of the same or opposite sex.

Though there is no single definition on what constitutes sexual harassment, this may be because sexual harassment can, to a large extent, be a subjective problem influenced by individual perceptions and attitudes. The important focus point is the fact that it is unwelcome and unwanted behaviour by the victim, and a form of violence against those who experience it, resulting in an intimidating and hostile working environment.

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