Sexual harassment is a continuing issue in Malaysia. The victim, whether male or female, has a right to not be sexually harassed. It must also be noted that it is easy for the victim to make an allegation, but it is difficult to prove the case. Thus, this article is aimed at providing a better understanding of the steps that should be taken in the event that someone experiences sexual harassment.

The first piece of advice is to immediately lodge a report with the authorities about the incident. It doesn’t have to be the police whom you report to; you could also file a statement with a workplace superior. Filing a report demonstrates that the victim wants to be taken seriously and would like further action to be taken against the perpetrator.

The reason why many cases are not ruled in the victims’ favour is because of the victim’s failure to to make an immediate report. The situation is further exacerbated if the victim chooses to act normally as if nothing serious has happened. Some victims even act in a friendly manner towards the offender, and only lodge a report afterwards.

In the landmark case of Jennico Associates Sdn Bhd vs Lilian Therera De Costa & Anor [1998] 3 CLJ 583, the High Court ruled that the victim had failed to prove that she was being harassed. This is because she only reported the case two weeks after the incident occurred, and did not even tell her husband about it.

Moreover, her subsequent conduct cast doubt on the credibility of her accusation due to the fact that she had been partying at the Ming Court Hotel.

The Jennico case shows the contradictory behaviour of a victim who has claimed to be sexually harassed. It is rational to presume that victims who have been sexually harassed will immediately make a report because they cannot bear the emotional distress they felt. They will also act strangely, such as showing annoyance towards the employer who has offended their dignity.

Another case in 2016 can be a good example of how the Federal Court made a favourable judgment towards the victim. The case concerned a female employee at Lembaga Tabung Haji, who had sued her employer in 2009. The judges ruled in the victim’s favour, based on the facts and evidence tendered which had more weightage in her case.

Firstly, the persistent oppressive and unreasonable conduct by the employer had caused fear and distress in the employee. Secondly, the employer had also uttered continuous obscenities which gave rise to emotional distress, annoyance and mental depression in the employee due to alarm, fear and anxiety.

Thus, in the above case, the female employee not only gave evidence, describing how she had been harassed, when it had happened and who the assailant was, but she also provided two items of evidence to strengthen her claim.

In short, it is apparent that the subsequent conduct of a victim can make or break a case.

As for the second piece of advice, the victim must keep all documentary records (if available) showing that he/she was being sexually harassed. This is also corroborative evidence. Thus, all the texts, messages, email, WhatsApp, social media and CCTV recordings can be utilised to convict the offender.

To ensure its authenticity, the victim may call an expert to prove that all the texts and messages were produced by the alleged electronic device or computer in the course of its ordinary use.

In addition, the recent amendment of Section 114A of the Evidence Act 1950 states that the law presumes that the subscriber, publisher or anyone who is the owner of the electronic device or the computer is the maker of the statements. That means, if the victim has received any immoral or pornographic texts from the offender, the law will strongly presume that it is a clear-cut case that the texts are coming from the offender.

For example, by calling an expert IT witness such as an expert from a network service provider, one can trace the IP address of an electronic device, and show who has custody of the device. However, this presumption can still be rebutted with other pieces of strong evidence.

Thus, it is advisable for the victim not to delete all the documentary evidence coming from the offender as they are very useful tools to charge the offender with. Additionally, in today’s globalised world, advanced technology has proven that some documentary evidence which was initially deleted can be retrieved.

Burden of proof based on balance of probability

The third piece of advice is for the victims to identify their claim and choose to file a suit either in a civil or criminal jurisdiction. This identification is important, as both jurisdictions carry different burdens of proof.

With regards to civil jurisdiction, the burden of proof is based on the balance of probability. That means, if the victim is able to show that she/he was being harassed, having 51 percent of proof will allow the victim to win her/his case. Thus, filing a suit under this jurisdiction is preferable.

On the other hand, if the victim wishes to file a suit under criminal jurisdiction, there will be a lower possibility of winning the case. This is because the victim needs to prove beyond reasonable doubt that she/he was being harassed. There must be at least a 90 percent clear-cut case of harassment.

A victim can file her/his claim under either jurisdiction. If the victim chooses to file the claim under civil jurisdiction, the victim may do so under tort for encroaching on human liberty, or breach of contract for not providing a healthy working environment. As for the criminal jurisdiction, which involves the public prosecutor, the offender may be prosecuted under provisions for rape, invasion of privacy, or domestic violence.

Hence, it is highly recommended for the victim to file a suit under the civil jurisdiction as the burden of proof is easier as compared to the criminal jurisdiction.

In Malaysia, sexual harassment is a serious issue which has been taken up by the government and NGOs. Malaysia has been a signatory to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) since 2011, which recognises that all women should not be discriminated by any forms of sexual harassment.

Some campaigns to raise awareness about sexual harassment have also been conducted by NGOs such as the Joint Action Group for Gender Equality (JAG). In fact, the group handed over a memorandum on combating sexual harassment in the workplace to the Human Resources Ministry in 2000.

To sum up, these are messages that I have highlighted which can be of use to victims of sexual harassment and all people. Remember that we have the right to live in peace emotionally and physically. Never keep silent and let the offender get away scot-free. Take immediate action and without doubt, at the end of the day, justice will prevail.

NURKAMELIA GHAZALI is a 4th year student, Bachelor of Law and Syariah, Faculty of Syariah and Law, Universiti Sains Islam Malaysia (Usim).