New sexual harassment bill edges closer to law in Malaysia

Kuala Lumpur, Malaysia – At university, three years ago Esma* felt a persistent pain along her arm and went to the campus clinic.

When she lay on the examination bed, the medic asked her to unbutton the top of her dress. He said that 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 soon discovered otherwise.

The medic told her she had beautiful breasts, kissing one and squeezing her nipples. It took about 30 seconds for her to fully comprehend what was happening.

“I didn’t say anything. I was too shocked,” Esma said. “I just sat up and dressed myself, and he sat back in his chair to write me a medical prescription for my arm – it didn’t mention the lumps. Then I left.”

Reports of sexual harassment are not uncommon in Malaysia, but despite the existence of various legal mechanisms, many women say effective redress is still lacking.

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 any person, in any context,” said Daniella Zulkifili, from the Association of Women Lawyers, who had a hand in the bill’s drafting.

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

Decades of debate

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

Initial discussions for more comprehensive laws on sexual harassment started in the 1990s. But due to a lack of political will, real progress only took place when elections in 2018 led to a change in Malaysia’s government for the first time since independence.

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

Taking action on sexual harassment and assault under the Penal Code can be lengthy and traumatic for survivors [File: Stringer/EPA]

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

“I think mentally, it would help me a lot. I may recover more rapidly,” she said. “Every time I have to go to the police station or to the court, I start to feel again what happened. I cannot move on.”

Esma told her university supervisor what happened right after she was assaulted, but felt the official was sceptical of her story.

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

The medic was later charged under section 354 of the Malaysian Penal Code for “assault or use of criminal force to a person with intent to outrage modesty” because there is no specific offence for “sexual harassment”. Esma feels that her university is equally to blame; she should have been safe there.

According to Zulkifili, pursuing redress under the Penal Code can be challenging. Many cases may not amount legally to a crime because of the need for a degree of severity and specific elements to be fulfilled, as well as a standard of proof beyond reasonable doubt.

Esma’s case is still pending, but the legal process has been bruising. She was not allowed to have someone accompany her to court despite her request, and felt she had to beg her university supervisor to testify in her favour.

“She was scared to come. I don’t know why. I’m the one who needs help. I feel like no one was trying to help me. I had to do everything by myself,” Esma said.

More legal options

Besides seeking justice through criminal courts, since 2016 survivors have been able to sue their sexual harassers in civil courts for monetary compensation. But not everyone can afford legal counsel, and the process can take years.

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

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

A sexual harassment case tried as a crime can be brought to the tribunal at the same time.

The tribunal, however, does not allow parties legal representation, which critics say could deter a survivor from bringing their complaint for fear of facing their harasser themselves.

Still, such a tribunal may help Jun*, 26, who feels she has been failed by the current system.

Earlier this year, while Jun’s company was having an event in a conference hall, she went into the cramped sound room adjoining it to switch off the television. As she reached 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 reached for something.

“He has a big tummy and I could feel it sticking into my back. He even said into my ear that he wanted to ‘squeeze me flat’,” 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 was wearing a short skirt, that I have a personality that is easy to bully. He asked me why I didn’t fight back,” she said, her voice wavering. “I did struggle, but at that time I was also panicking. I had to make myself calm down.”

According to a 2020 survey of 1,010 Malaysian women, 62 percent have experienced workplace sexual harassment.

A 2011 amendment to the Employment Act directs an employer receiving such complaints to carry out an internal investigation, but how it does so is left to the employer. “Some organisations do look for independent members to form the panel,” Zulkifili said, “but there is no such obligation.”

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

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

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

“I don’t want the money. I want him to be punished and I want him to apologise to me sincerely,” she said.

‘Scream and push him away’

Discouraged from pursuing official channels, other women have taken their experiences to the press and social media, but also found it difficult to hold sexual harassers accountable.

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

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 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 lawyers appointed by the government in her countersuit.

More recently, Yihwen Chen, a journalist, made a meditative short film, The Boys Club, about her experience of sexual harassment while filming a feature documentary – by an indirect subject of the documentary – and how she felt unsupported by her bosses when she reported it. She eventually felt forced to leave.

Malaysian teenager Ain Husniza, who reported her teacher for making a rape joke, speaks to the media supported by her father and supporters outside a police station
Ain Husniza Saiful Nizam (centre in pink trainers) is facing a defamation suit supporter by the government after she criticised a teacher for making a rape joke. She did not name him [File: Arif Kartono/AFP]

Despite some advances, even the new bill is insufficient, activists say.

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

Activists have asked for the definition of sexual harassment to be expanded beyond interactions between two individuals to include hostile environments that enable sexual harassment, and argued for imposing a duty on organisations to prevent such incidences and deal carefully with complaints.

“A lot of cases come down to power dynamics, and there can be a lot of blowback on survivors,” noted Abinaya Mohan, WAO head of campaigns. “So, the prohibition of further victimisation is important. There must be a protection mechanism in place so complainants can speak up freely.”

Citing a 2019 YouGov survey of 1,002 Malaysians, Betty Yeoh of women’s rights social enterprise ENGENDER Consultancy – who also helped draft the bill – adds, “Sexual harassment happens to 35 percent of women and 17 percent of men in Malaysia. This bill is not just for women, but for every citizen in this country.”

Until it comes into being, Jun, traumatised multiple times over from being disbelieved, has advice for women who find themselves being 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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