Here is part 2 of a range of rights-based arguments on sexual harassment that have succeeded at trial. We explain how underpinning gender stereotypes amounts to discrimination; and how the issue concerned can instead be construed, or, dismissed. It is intended that these arguments can be lifted and rephrased for use in similar sexual harassment cases that take place in a variety of cultural contexts.
(1) The defendant argued that a single act is not enough to constitute sexual harassment.
Argument: We argue that it is not necessary that the conduct of sexual harassment be repeated. A single act can constitute sexual harassment.
Most importantly, we strongly argue that no court should refuse to find a man guilty for a single act of sexual harassment, as to do so would require a woman to endure repeated harassment in order to seek recourse.
“Although a single act can be enough…. generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident”.
(2) The defendant argued that because there was no change in the behaviour of the complainant at work and because she kept coming to work, there is not enough evidence to prove sexual harassment.
Argument: It is the harasser's conduct that is to be scrutinised. To evidence harm, employees cannot be expected to endure sexual harassment until their psychological well-being is seriously affected to the extent that they suffer anxiety and debilitation.
(3) The defendant argued that the complainant’s past sexual behaviour was relevant to the case because it showed that she was in the habit of acting in a promiscuous or sexually aggressive manner in order to receive work benefits. The defendant argued that the evidence constituted “habit” evidence, deemed admissible, by this court, in certain circumstances.
Here, the defence attempted to circumvent the rule that prohibits the admission of evidence of the plaintiff’s prior sexual history in order to support an inference that she had acted in conformity with those past acts on a particular occasion.
Argument: This argument suggests that a woman who does not conform to traditional expectations of female decency cannot object to sexual advances by men.
The defence is attempting to introduce evidence of the plaintiff’s sexual life. We argue that the exposure of the intimate aspects of the plaintiff’s life, as well as that of her friends and acquaintances, would discourage the prosecution of harassment cases, just as it once chilled the reporting and prosecution of rape.
We argue that the discovery of the plaintiff’s past sexual conduct constitutes such a serious invasion of her constitutionally protected right to privacy that it should not be permitted unless justified by extraordinary circumstances.
The defence argues that such extraordinary circumstances existed i.e. her habitual actions of promiscuity are so material to the question of consent that to deny its admission in court would be unfair to the defendant. Firstly, we remind the court that even a promiscuous woman is entitled to say no to unwanted sexual advances. Consent must be given at every sexual encounter and indeed, at each stage of a sexual encounter.
Secondly, by way of clarification, habit evidence is evidence submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on that person's regular practice of a specific type of conduct in a specific type of situation.
Habit can be defined by: (1) the specificity of the conduct, (2) the regularity of the conduct, and (3) the reflexive nature of the conduct
For the third one, the conduct should be semi automatic
To be considered semi-automatic, conduct must “uniformly follow a stimulus,” such that the response becomes almost “unconsciously mechanical.”
We argue that it is difficult to imagine how prior sexual conduct constitutes habit evidence or conduct of “invariable regularity” or “unconsciously mechanical”. This is especially true if a defendant, like in this case, is attempting to demonstrate that the plaintiff undertook a series of conniving schemes to seduce her prior sexual partners and her alleged harasser. The volitional, planned nature of such conduct would defeat any attempt to characterise it as “habit” evidence.
Since habit evidence merely involves “systematic conduct where there is a regular response to a repeated specific situation” it is different from character evidence which is typically inadmissible.
For habit evidence, even if the habit of being sexually active is admissible and proven, the moot point would be – is the [so-called] promiscuous victim in the habit of: (i) having sex; or (ii) having sex and then accusing her sexual partners of rape/assault?
In this light, what the defendant really needs to prove is that the plaintiff is in the habit of indulging in false and malicious allegations against her partners. The requirement to obtain consent is not relaxed in the case of sexually active women. There is no lower threshold to assume voluntariness in a woman who is “in the habit of having sex”.
Priest v Rotary 98 FRD 761 (1983)
 Ibid. at 762
See all parts of this series here.