Allow investigations of alleged sexual harassment

 

Sexual harassment must be viewed seriously, and there must be sufficient evidence to substantiate the allegation. The standard of proof to establish a criminal charge of sexual offences such as rape, attempted rape, or other forms of sexual assault is beyond a reasonable doubt.

Whilst the civil standard involving workplace sexual harassment is on a balance of probabilities. This means that where the alleged sexual harassment complaint is lodged with the company, the onus shall always be on the complainant to prove, on a balance of probability, that the assailant committed such acts by relying on her evidence and that of other witnesses.

For a sexual harassment claim to succeed, several factors have to be considered, and this includes inter alia, lodging a police report soon after the incident, an immediate complaint of the incident with the human resource officer or other designated superior, eyewitnesses of the victim's reaction right after the incident, immediately relating the encounter to more than one person either verbally or in written form.

To establish sexual harassment, it is common to look for additional evidence of relevant circumstances that may render it probable that the complainant's allegation is true. The independent evidence must confirm in some material, particularly not only the evidence that the crime has been committed but also that the accused committed it.

The requirement of independent evidence would automatically trigger off when the testimony of the complainant is riddled with inconsistencies and contradictions.

It is noteworthy that keeping quiet and acting normally may sometimes be construed as consenting to the advances by the sexual harasser.

Likewise, the undue delay in reporting the matter may reduce the credibility of the complaint unless the undue delay could be justified, such as the complainant's post-traumatic stress disorder arising from the incident.

As the allegation of sexual harassment, if established against the perpetrator, can cause enormous embarrassment and damage to his social status, it is therefore imperative for a thorough investigation into the complaint to uncover the truth.

It is noteworthy that if the investigation concludes that the allegation is false or misleading, there are several civil and criminal options available against the accuser, including a civil defamation suit for damages.

While the investigation into the alleged sexual harassment is underway, it would be utterly unbecoming for the members of the public to make statements of the alleged incident and worst still, to make unfounded conclusions against the accused or the complainant.

Let the investigation agency carry out their investigation into the complaint and thereafter, the prosecution to decide on the appropriate cause of action based on the uncovered evidence. - Mkini

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ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia (IIUM).

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.