The problem of intent

In February 2018, former New Democrat (NDP) Member of the Canadian Parliament, Peter Stoffer, apologized after colleagues accused him of inappropriate conduct.

Lauren Dobson-Hughes, a former NDP staffer, narrated how Peter Stoffer had attempted to forcefully kiss her on two separate occasions, four years apart. Stoffer, in a press conference, maintained: “I did not in any way in my intention intend to insult or demean or belittle any person in this regard”.

As early as in January 1991, the US Court of Appeals Ninth Circuit, in Ellison v Brady, found that the facts and circumstances in a sexual harassment case must be assessed from the perspective of a “reasonable woman”, departing from the “reasonable person” approach. The court’s reasoning resonates with women all over the world: “If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.” Accordingly, the court looked at the issue of harassment from the victim’s perspective, finding that “conduct that many men consider unobjectionable may offend many women”.

While there is no singular universally acceptable definition of what constitutes ‘sexual harassment’, all definitions recognize that the unwanted conduct in question has an adverse impact on the party at the receiving end. In other words, even in the absence of ‘sexual intent’, what is pertinent and relevant is the environment created for you as a result of that conduct.

There are many shades of sexual harassment faced by women, which is why in many countries sexual harassment constitutes a form of discrimination under the law as it impedes women’s equal access to safe and dignified workplaces. Accordingly, in the context of harassment at the workplace, the requirement of intent in this regard is not as significant as the perception of the questionable conduct by the person at the receiving end of it.

In the Ellison v Brady case, the court had explained why they adopted the “perspective of a reasonable woman” – because in the court’s view “a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women”. Importantly, the Court explained why intention is not as central as the effect in the context of sexual harassment: “Well-intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive to alter a condition of employment and create an abusive working environment”.

Despite the existence of anti-harassment laws, women in Pakistan are largely deprived of their right to a safe and dignified work environment. To this day, the chaadar and chaar diwari culture imposed by dictator Ziaul Haq impedes women’s access – let alone equal access – to the same professional opportunities available for men.

Unfortunately, the lack of representation of women in our judiciary has resulted in the development of jurisprudence that disregards the experiences and lived realities of half the country’s population.

The Supreme Court has handed down a disappointing judgment in Civil Petition No 4570/2019 (Nadia Naz v President of Pakistan & Others). Admittedly, the judgment spends a great deal of time acknowledging the flaws in, and limitations of, the workplace harassment law, ruling inter alia that the 2010 Act “rather than addressing [the] issue of harassment in all its manifestation… in a holistic manner, is a myopic piece of legislation that focused only on a minute faction of harassment”. This is indeed a welcome admission by the August Court.

Interestingly, however, while lamenting the loopholes in the law and adopting an apologetic attitude for being compelled to apply the letter of the law, the judgment has created an additional hurdle for those who face sexual harassment in the workplace, by incorporating an intent requirement into the 2010 Act that was never provided for in the text of the Act itself.

The Supreme Court has regrettably concluded that any demeaning attitude, behaviour or conduct other than of a “sexual” nature “which may amount to harassment in the generic sense of the word…howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of ‘harassment’ under section 2(h) of the Act, 2010”.

The court, in paragraph 15 of the judgment, finds: “Giving such restricted meaning to ‘actionable’ harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act, 2010 was promulgated”. Despite finding the aforementioned, it goes on to still hold that any act, demeanor, behaviour or conduct that is not of a “sexual” nature will not be covered under the 2010 Act. The court concludes that “the aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behaviour, and/or conduct.”

This is reflective of the problematic jurisprudence that evolves when women are not given their due representation on the bench. Despite the growing understanding in the world that the intent of the harasser is immaterial in determining whether the act of sexual harassment has occurred, the judgment completely ignores any discussion on the ‘intention versus impact/effect’ debate.

To incorporate into an already problematic and restrictive law an intent requirement (that too of a specific sexual nature) that now needs to be satisfied by all those coming forward with cases of harassment at the workplace means setting us back even further. As is, the judiciary has unfortunately repeatedly adopted a narrow/restrictive approach towards interpretation of sexual harassment laws in the workplace. Taking the two together, women are essentially denied their constitutionally safeguarded fundamental rights, including the right to profession/work, the right to dignity, and the right to equality before the law.

The jurisprudence on sexual harassment in Pakistan is flawed and offers inadequate protection to women. For example, there has been no discussion on the importance of similar fact evidence in sexual harassment cases by our courts, despite the fact that sexual predators more often than not have a predatory pattern of behaviour. Instead, the judicial system is more interested in placing further obstacles in the way of working women, by also requiring them to prove ‘sexual’ intent of their harassers in civil cases involving the workplace.

We must remember that this specific ‘sexual’ intent requirement is not being discussed within the context of a criminal offence but in the context of a law in which the “major penalties” include the following: (i) reduction to a lower post or time-scale, or to a lower stage in a time-scale; (ii) compulsory retirement; (iii) removal from service; (iv) dismissal from service; and (v) fine.

For as long as middle-aged men continue to make decisions that affect the daily lives of hundreds and thousands of women across the country, we should only expect justice by men for men, which only offers legal protection for women to the extent that these men deem appropriate and sufficient.

The writer is founding partner of Mazari-Hazir Advocates & Legal Consultants.

Email: imaanmazarihazir@ gmail.com

Twitter: @ImaanZHazir