On the 1st of October this year, SAYS published an article exposing a Malaysian Telegram group called V2K consisting of 35,000 members who were sharing explicit photos of women without their consent and child pornography. After the public outrage that followed, the case was reported to the Malaysian Communications and Multimedia Commission (“MCMC”) and was escalated to the International Criminal Police Organization (“Interpol”).
The existence of V2K is part of a larger pattern of sexual harassment which is rampant in Malaysia. PDRM reported 1,218 cases of sexual harassment between 2013 and 2017. There are over 1,000 cases of rape a year in Malaysia over the past 20 years, which means three people are raped every day.
These figures don’t even represent the true reality as the same survey found that only 53% of victims reported or told someone about the incident. It also estimated that one in three Malaysian women have been sexually harassed.
What is Sexual Harassment?
So, before continuing, apa tu sexual harassment?
All Women’s Action Society (AWAM), a Malaysian feminist non-profit organization, defines it as “any unwanted or unwelcome conduct that is sexual in nature, and may be committed physically, verbally, non-verbally, psychologically and/or visually, which may cause the person being harassed to feel humiliated, offended or threatened”.
There is a popular cultural misconception that if you haven’t been touched or harmed, you haven’t been harassed. This is untrue and AWAM covers the various forms of sexual harassment in the diagram below. What V2K did was online harassment which is a very common form of harassment which is often overlooked.
Social stigma, emotional trauma and minimization by the police are all factors why victims do not lodge police reports. Having clear sexual harassment laws is an important first step in making victims feel confident that they will be protected and that their harassers will be be held responsible.
Unfortunately, in Malaysia, there isn’t a clear legal definition of sexual assault or sexual violence. Instead, there are multiple definitions – depending on who the victim is the remedy they are seeking. This vagueness around what exactly sexual harassment is makes it confusing for victims to understand their rights and how they can seek justice.
An Umbrella with Holes
Laws are meant to protect you, like an umbrella. With sexual harassment, it’s more like an umbrella with holes, because the laws don’t actually cover everyone equally. This is because of the inconsistencies between all the laws that cover sexual harassment in Malaysia. The punishment, the procedures, and even the meaning of “sexual harassment” itself changes depending on who the harasser is, what type of harassment occurred, and where it happened.
Harassment at Work
For example, the most complete definition of sexual harassment in Malaysia is found in our Employment Act, which covers physical and non-physical forms of harassment. However, you’re only protected under this act if you’re an employee and if the harasser is also employed at the same company.
The Act does not specify minimum standards of investigation for the sexual harassment. This means that an employer has no pressure to properly carry out an investigation. Even if they do carry out an investigation, there is no specific set punishment for a guilty harasser. That means that even if the harasser is guilty, a lenient employer may just penalise them with a temporary suspension or less.
Furthermore, an employee has no recourse if they are unhappy with the outcome of the case or if the employer fails to implement an adequate sexual harassment policy for the company. In summary, the law fails to create a safe working environment and properly protect employees from sexual harassment.
Harassment as a Crime
Additionally, victims of sexual harassment are also protected under Criminal Law – kind of governed by a few sections of the Penal Code. I say kind of because these laws actually govern sexual assault, rather than sexual harassment. However, it has been used by the Courts to handle sexual harassment cases as well. Criminal law seems ideal because the victims do not have to pay for a lawyer – the Prosecutor will handle your case – and the penalty is severe.
Sexual harassment is a spectrum, but the Penal Code sees it as black and white. It’s only harassment if it’s both explicit and physical. If it’s verbal sexual harassment, or another type of “implicit” harassment, then it’s not a crime. This is because the Code has not been revised since 1997, which results in an outdated definition of what sexual harassment is and how it happens. The wording in the Act does not cover less obvious “grey” forms of sexual harassment, such as non-verbal harassment, psychological harassment or online harassment.
This means that if you were to be sexually harassed on the streets but it was not explicit or physical, it would be difficult for you to report this case to the police. This lack of clarity results in the police being unsure in how to handle these “grey” cases or worse, the police not taking it seriously at all. This allegedly happened when a 21 year-old tried to lodge a sexual harassment report but the police laughed and teased her about it because she “was not touched”.
Harassment the Rest of the Time
Lastly, there is the “protection” under civil law, where victims can sue their harassers for money. This is a new development that happened in 2016, when a Tabung Haji employee brought her case to the Federal Court. She alleged that her manager had sexually harassed her using vulgar and inappropriate speech. The Court ruled that her harasser had to pay her RM120,000 due to emotional trauma, establishing for the first time, a legal definition of non-physical sexual harassment outside of employment.
Unfortunately, this is a new area of law which is yet fully developed and not entirely clear. On top of that, victims are required to justify the amount of money they are suing for by putting a money value to the amount of damage they have suffered. This is difficult to do with something such as emotional and psychological trauma. Physical injuries can be costed with medical bills, but with these damages it’s less clear.
The (Other) Holes in the Umbrella
The process of going to both criminal and civil Court itself is a challenge for victims. Subjecting victims to the immense pressure of a courtroom while facing their harasser can be understandably difficult.
As a victim, you are forced to confront your trauma and “prove yourself” to the judge while a lawyer aggressively questions you. A medical study found that it is common for victims of sexual assault to display “lapses in memory” due to how their brain responds to trauma.
To make things worse, the process of trial does not take into account the nuances of sexual crimes, such as the lack of physical evidence due to the private nature of the crime. The burden of proof is on the victim to prove that they have been harassed. This can be difficult to prove as most of the time, there are typically no witnesses in sexual harassment cases.
All this is on top of the societal pressure and stigma that victims face in their every day lives. This difficult and traumatising process can discourage victims from ever coming forward.
As a recap, these are some pretty big holes. If you’re an employee, your employer has no reason to properly carry out an investigation and punish the harasser. If you’re trying to report a crime, it won’t be taken seriously unless it was physical and you were harmed. If you’re trying to sue someone, you have to face the pressures of Court and quantify and prove your emotional trauma. And if you don’t fall under any of these buckets, you have no other recourse to get justice.
The Future: Sexual Harassment Bill
Malaysia is not without hope. A new Sexual Harassment Bill has been proposed by the the Joint Action Group for Gender Equality (JAG) — which comprises of a few feminist NGO’s including Women’s Aid Organisation (WAO), AWAM, and the Women’s Centre for Change (WCC).
The Bill was proposed in 2001 and once again in 2018. Pakatan Harapan has promised to pass the Bill, but due to the recent change in Government and the surge of the Covid-19 pandemic, the Bill has not yet been passed as of today.
Among the few key improvements suggested is a clear definition of sexual harassment which covers both private and public spaces, mandatory guidelines on how companies should handle sexual harassment and a clear way for employees to hold their employers accountable for not implementing sexual harassment guidelines.
A Sexual Harassment Tribunal has also been proposed, which is an out-of-court process for victims to resolve their cases. This would simplify the complaint process for victims and help eliminate the intimidation that victims typically have to face in Court. All of these improvements are important in tipping the scales towards the victim, making it more likely that they will receive justice.
How do you play your part? As an employer, implement appropriate internal policies to handle cases of sexual harassment. As a friend, call out sexual harassment when you see your friends engaging in it or joking about it. As a Malaysian, make your voice known by voting for politicians who are pushing for the implementation of this Bill. Or at the very least, you can sign this petition to table the Sexual Harassment Bill from AWAM.
It’s important to note that even if the Bill were to be implemented today, sexual harassment would still be a problem. Many still believe that sexual harassment is “not a big deal” or just “boys being boys”. On top of that, just because something is law, does not mean that it will be enforced properly.
However, with an actual Bill passed which provides a clear definition of sexual harassment, it will be easier for victims to get justice and for authorities to handle the situation. A good sexual harassment law should afford protection to persons from all walks of life who are faced with unwelcome sexual remarks or acts which take place in all public, private and online spaces, not just work-related incidents.
The scary truth is that sexual harassment can happen to anyone, and we should all push for a better Malaysia where we are protected from it.
Feature photo by Ivan Radic
Calan Eskandar is a budding young lawyer who started his career in Khazanah Nasional Berhad. He has had a keen interest in constitutional law, corporate governance and civil rights. In university, he was actively involved in the Innocence Project, a student-led pro-bono group which aimed to liberate wrongfully convicted individuals.
He is the Co-Founder and Legal Specialist at Kata Kolektif.