Editor's Note

In the Hollywood film “Disclosure” based on Michael Crichton’s novel of the same title, Tom Sanders, played by Michael Douglas, was slyly set-up by an ambitious corporate officer and former girlfriend Meredith Johnson (played by Demi Moore). Although it was Meredith who inappropriately and cunningly sought to have sexual congress with Tom in her office, which the latter rejected, it was she who made a fuss about it and later deceitfully played the victim card. Tom was consequently constrained to fight back, protect his reputation, and sought the advice of a lawyer. He met Seattle-based attorney Catherine Alvarez, who succinctly explained to him that sexual harassment is not about sex, but about power.

Indeed, power, influence, or moral ascendancy being wielded by one over another is the tool used for sexual harassment in the workplace or in education/training institutions. The imbalance of power that engenders such inappropriate sexual advances and acts is the focus of the Sexual Harassment law (Republic Act [RA] 7877), passed in 1995. The law punishes acts committed by employers, fellow employees, supervisors, trainers, teachers, or any person who has authority.

Section 3 of RA 7877 provides: “Work, education or training-related sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request, or requirement is accepted by the object of said act.”

The rationale of the law is this -- there is an imbalance of power between the aggressor and victim because of the former’s position or designation. Therefore, the employee or trainee is not in a position to resist, freely act or give meaningful consent.

In 2019, RA 11313 or the Safe Spaces Act expanded the definition of sexual harassment. It is no longer limited to acts committed by persons who have authority or ascendancy over the victim. Also, it is no longer limited to acts committed in a workplace, or in an education and training facility. The proscribed acts now include the following:

(a) An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;

(b) A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through other forms of information and communication systems;

(c) A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient: Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee.

Notably, it is no longer necessary for the aggressor to be one’s superior. A peer or someone even of lower rank in an organization may now be held criminally liable under this expanded definition of sexual harassment.

We now see the difference between sexual harassment under RA 7877 and RA 11313. Under the former law, consent by the victim is immaterial, as such consent may not have been freely given considering the ascendancy and/or authority wielded by the perpetrator. RA 11313, on the other hand, does not presume any imbalance of power. Hence, as long as consent is freely given, the perpetrator cannot be held liable under the law. Sexual advances becomes punishable only when it is unwelcome or offensive to the victim. In other words, the act will be deemed consensual and therefore not harassment.

As earlier mentioned, the place where the punishable act can be committed has also been expanded under RA 11313. Considering that many forms of sexual harassment happen in the streets, the law punishes “gender-based streets and public spaces sexual harassment” which pertain to any unwanted and uninvited sexual acts or remarks against any person regardless of the motive for committing such action or remarks. It includes misogynistic, transphobic, homophobic and sexist slurs, catcalling, wolf-whistling, persistent uninvited comments or gestures on a person’s appearance, relentless requests for personal details, statement of sexual comments and suggestions, public masturbation or flashing of private parts, groping, or any advances, whether verbal or physical, unwanted invitations that is unwanted and has threatened one’s sense of personal space and physical safety, and committed in public spaces such as alleys, roads, sidewalks and parks. Also, the law covers these acts when performed in buildings, schools, churches, restaurants, malls, public washrooms, bars, internet shops, public markets, transportation terminals or public utility vehicles.

The evolution of the laws passed over the past years indicates an increasing effort to promote human rights and protect the dignity of every individual. It thus pays to know, in this regard, what acts are considered not just inappropriate, but criminal as well. As the RCM Program Committee’s advisory for this week’s regular meeting interestingly banners, “ignorance of the law excuses no one.”