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Here is part 4 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 appealed his conviction for rape on the basis that sexual assault accusations are easily laid and difficult to prove, and, that the complainant’s testimony was not corroborated.The complainant’s evidence should be treated with special caution

 

Argument: We argue that there is no reason why cases of sexual assault that were “easily laid and difficult to prove” should be treated on a different basis from any other crime. While it is true that different motives might exist for laying false charges, this applied to any offence and not just to offences of a sexual nature. There is no evidence that false charges in cases of rape were any more likely than in other offences.

 

Thus only one test should apply, namely that the accused’s guilt was proved beyond reasonable doubt; and this test should be the same whether the crime is theft or rape.

 

Although the cautionary rule applies to all sex-based assaults, i.e. irrespective of the sex of the complainant, in the overwhelming majority of cases, the complainants are female. In effect, the cautionary rule has no purpose other than to discriminate against women complainants and this violates the constitutional guarantee of equality for all before the law regardless of sex.[1]

 

[1]State v D and Another, High Court of Namibia [1991]

 

(2) The defendant argued that a reasonable man would have been led to believe that the complainant had consented to his advances.

 

Argument: We argue that the defendant’s argument does not take into account a woman’s perspective and experience of unwanted sexual encounters. A “reasonable woman” standard should be adopted instead.

 

“We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share.”[1]

 

“For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behaviour. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”[2]

 

“In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.”[3]

 

[1]Ellison v. Brady, Court of Appeal Ninth Circuit, USA, 1991, par. 879

[2] Ibid

[3] Ibid

 

(3) The defendant argued that the complainant did not prove that she was psychologically affected by the alleged harassment.

 

Argument: We argue that when the conduct of the harasser creates a hostile working environment that detracts or discourages the woman in her job performance, it is not necessary for the woman to prove that she was also seriously affected in her psychological well being. [1]

 

A conduct that negatively affects the psychological well being of the woman can surely amount to sexual harassment, but “so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious”.[2]

 

“The effect on the employee's psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor (should be) required.”[3]

 

[1]Harris v. Forklift Sys. (92-1168), 510 U.S. 17 (1993)

[2]Ibid

[3] Ibid

 

See all parts of this series here.

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