The Taiwan High Court’s overturning of a sexual harassment conviction this week created controversy, and justly so, for it revealed an absurdly outdated mindset that could hinder efforts both to end sexual harassment and to prosecute offenders.
The Hsinchu District Court had found a 36-year-old man guilty of harassment because during a get-together with colleagues at a pub in February 2008, he twice placed his hand on a female subordinate’s shoulder and then both of his hands on her waist. She was upset enough by the encounter that she not only complained to her company — thereby jeopardizing her job — but also sued the man. She obviously felt violated.
The High Court, however, ruled that touching a woman’s shoulders or waist was not a violation of the Sexual Harassment Prevention Act (性騷擾防治法) because the act only covered touching hips, breasts or other “private” body parts. Since women often dress in clothes that expose their shoulders or waists in the summer, these areas could not be considered “private,” the High Court said.
In other words, it’s the old cliche that women ask to be assaulted or raped because of the way they dress. The judges not only disregarded the fact that sexual harassment — just like sexual assaults and rape — is more about power than it is about sex, but they seemed to require a woman to wear a burqa before she could be seen as a credible witness or even an “innocent” victim.
Most females, from toddlers to centenarians, wear dresses and skirts that reveal their lower legs these days, and not just in the summertime. Under the High Court’s definition, women’s feet, legs, hands, arms, necks and faces are fair game. Would the judges have considered it sexual harassment if the man had run his hands up and down the woman’s legs? What if it was just the calves?
The High Court judges seem to have lost sight of the fact that while the touching was brief — 10 seconds was the duration mentioned in the news reports — it was repeated. Once could have been accidental. Twice was no accident. This was a case of a superior inappropriately touching a subordinate’s body. That is harassment, no matter where the hands were placed.
Harassment is not about flirting or even sexual intentions; it is an abuse of power. No one asks to be sexually harassed — it’s degrading and often traumatic. While there have been cases of false accusations, they are a small minority, since most cases of sexual harassment — just as with sexual assaults and rape — go unreported because the system is seen as stacked against the accuser, who also faces the risk of retaliation.
Combating sexual harassment, especially in the workplace, is not a matter of dress. It is about preventing unwelcome physical contact and/or offensive and degrading language. It is all about treating people with dignity and respect.
The lack of real-world experience among judges in Taiwan — many, if not most, of whom are recruited right out of law school — has been a frequent criticism of the judicial system. The High Court ruling would indicate not just a lack of real-world experience, but of 20th century experience.
Unfortunately, the High Court’s ruling, however outrageous, was the final verdict on the case. Nothing can be done now against the defendant or for his accuser. It’s no use protesting to the courts.
Where action can and should be taken is in the legislature. Tuesday’s ruling highlighted a shortcoming in the four-year-old Sexual Harassment Prevention Act. Lawmakers of both sexes and all parties should now push to amend the law to fix that shortcoming.
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