Medica Afghanistan’s Lawyers’ Review of Ministry of Higher Education Anti-Sexual Harassment Policy
Material terms have not been included and defined. For example, it is vital that Policy is clear about who the Policy is intended to protect, and, against whom. This should be comprehensive (e.g. it should cover the following situations: student v teacher, student v non-teaching staff, student v student, teacher v teacher, teacher v student) and the extent of coverage should include places such as sports grounds and school transport. In turn, each of these terms should be defined.
The definition of sexual harassment should go beyond physical harassment. It should cover: demand or request for sexual favours, showing of pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. In this regard, the definition under the ASH Law is more comprehensive (though it could be improved).
One of the most important aspect of any ASH law or policy should be its guidelines on how to handle “false accusations”, or rather as we prefer to call it as “insufficient evidence”. Women are often stereotyped as “lying” when they report sexual-related crimes. In the case of MOHE’s ASH Policy, it appears to encourage women to report without evidence but turns back by stating that accusations without basis will be dealt with according to the law.
Almost all acts of sexual harassment are committed in private. As such, it is highly likely that most cases will be proceeded on a “he said, she said” basis. The Policy must provide guidelines on how to handle such “he said, she said” situations. To give examples:
A single testimony from a credible complainant should be considered and accepted as sufficient evidence for consideration.
The burden of proving “false accusation” lies with the person alleging that a person has falsely accused and generalized motives should not be accepted as intent to falsely accuse.
Failure to prove a case shall not be equated to false accusation.
Policy must also provide relief for students who report against their teachers, but who fail to prove their cases. If a student has made a complaint in good faith, but failed to prove her case, she should in any case, be able to request for relief such as: transfer to a different class, or, have her examination paper marked by a different teacher.
5. As reports of sexual harassment are likely to be made against staff, Committees should also be made up of students and the procedures should be democratized. There is power in a collective. The MOHE should review reports by the student committee as the Chief of University is unlikely to submit reports which cause disrepute to his institution.
6. The Commission and Committees under ASH Law should be aligned to any Committee created under this Policy. A clear hierarchy between the Committees will avoid disputes in authority/jurisdiction. Decisions should be made in writing and disclosed to parties. There should be clear routes of appeal to an apex Committee.
7. There should be a clear basis for the constitution of the Committee: appointment, recuse and dismissal of Committee members.
8. Policy should include a clear list of measures in detail and not leave it to the University to decide which measures are adequate:
Preventive: publication in university prospectus and notice boards, secure toilets, awareness sessions, student committee activities;
Protective measures: before, during and after review of complaint);
Restorative measures: to restore the complainant to her position before or but for the incident;
Disciplinary measures: expulsion, transfer, suspension, denial of admission, debarring from exams, written apology, public apology by school etc…
9. Policy should state clear Rules of Procedure for the Committees and not leave it to Committees to decide how they will receive and adjudicate complaints.
10. Policy should hold Universities/ Committees accountable for failure to perform minimal obligations (such as the list of detailed measures aforementioned), for failing to abide to Committee rules of procedure, for corruption and gender discrimination.
11. Our comments to the ASH Law similarly applies herein.
We are supporting Medica Afghanistan with resources for their review of sexual harassment laws and policies. If you have worked on these issues, do connect with us at Natasha Latiff at Natasha@sa-hr.org.