Of Sexual Harassment, Assault and Rape

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Harvey Weinstein

The recent Sexual Harassment scandal of Harvey Weinstein, one of the most successful Producers in the United States of America, has brought the issue of sexual harassment to the forefront, worldwide.

Sadly, women have suffered from sexual harassment in the workplace from time immemorial, and mostly in silence I might add, for fear of losing their jobs. With the advent of homosexuality, sugar mummies and so on, these days, men are also victims of it too. Of course, Nigeria is not excluded from this nonsense, and sexual harassment has become so rampant in our society, that it has spread like wildfire, even to our educational institutions, that is, Educators harassing students for sexual favours and persecuting and failing them in examinations, if they reject such advances; and of course, giving high marks to those who have not earned them, if they play ball. Some lazy students in the tertiary institutions, actually appreciate the ‘sex for grades’ racket, and sleep their way to their degrees, having absolutely no clue about the course they claim to have qualified in. We then lament, when they are unleashed onto the work force, that some of our ‘graduates’ are less than half- baked!

Harvey Weinstein is facing several allegations of sexual misconduct, ranging from sexual harassment to outright rape. At the last count, 32 women or so, had levelled allegations against him, stemming from the 1990s. His modus operandi, was usually to convene a work meeting with his victim in his hotel room, then sometimes appear in a bathrobe, ask his victim for a massage or to watch him take a shower or both, try to touch his victim and so on. Actresses like Rose McGowan, Asia Argento (Italian) and Lysette Anthony (British) have accused Weinstein of outright rape.

Apparently, since 1990, there have been about 8 settled lawsuits, resulting from accusations against Weinstein for some sexual misconduct or the other. Actresses like Ashley Judd, Angelina Jolie, Gwyneth Paltrow, Kate Beckinsale and Cara Delevingne, have all accused him of sexual harassment. But it seems that “the fear of Harvey Weinstein in the Hollywood Movie Industry, was the beginning of wisdom”, and out of fear of reprisals, no one really spoke out against him, despite the fact that his activities were well known. The recent New York times Expose’, was the catalyst, which resulted in people coming out of the woodwork with many allegations against Weinstein, including a male actor who actually accused him of fondling him.

 

Definition of Sexual Harassment

The US Equal Employment Opportunity Commission (EEOC) states that “unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment” when for example 1) if the individual does not accede to the sexual overtures, such a person may not be employed in an organisation where they are seeking employment, because the Harasser has a say on who gets employed 2) submission or rejection of sexual overtures by the individual, may be used as a basis of denial of better employment opportunities within the organisation that the victim already works, for example, the Harasser may say that, if you accept my sexual advances I will ensure that you are posted to the Company’s ‘cushy’ Headquarters in Abuja, and not a hellhole in ‘Kutuwenji’ 3) the harassment has the purpose or effect of unreasonably interfering with an individual’s work performance, makes the work environment hostile, or not as conducive as it would ordinarily be.

American courts have concluded that 1) victims of sexual harassment need not come out to categorically say that the actions of the Harasser are unwelcome and will instead, evaluate the circumstances of each case, to establish whether it was obvious to the Harasser that the conduct was unwelcome 2) victims may be too scared to talk, because the Harasser is their superior in the work place, and they do not want to lose their means of livelihood.

 

Definition of Sexual Assault

Sexual Assault is a much broader term than rape. While rape is always sexual assault, sexual assault is not always rape. Sexual Assault involves a variety of sexually related crimes like forced kissing, anal and oral penetration, touching of private areas of the body.

People, no one is allowed to pat, caress and pinch you on the backside or the frontside, in the work place or wherever, without your acquiescence. Things like that which occur here in Nigeria regularly, are classified as crimes in other jurisdictions! Many years ago (I was fairly young then), I remember the case of a mortuary attendant “Sunday Gboku Gboku”, who was interviewed in Sunday Times or so. He would engage in sexual relations with corpses that were brought to the mortuary. I don’t remember him being arrested; in fact, people found his story strange, intriguing and somewhat amusing. In reality, his actions constituted the crime of sexual assault – necrophilia, and as a regular offender, he would have bagged a stiffer sentence than just one of a Class A Misdemeanour, should it have taken place in the USA.

 

Definition of Rape

Rape is simply non-consensual sexual intercourse, having carnal knowledge of a person involving penetration, without their consent. In Nigeria, the Criminal Code and Penal Code, restrict the definition of rape to an act between a male and a female. The Violence Against Persons Prohibition Act which operates in Abuja alone, however, expands the definition of rape to penetration of not just of the vagina, but the anus, oral and probably any other part of the body that can be penetrated. This means that in Abuja, a man can also be raped.

 

Article 130 New York Penal Law

Article 130 provides for a multiple of sexual offences ranging from forcible touching which is classified as a Class A Misdemeanour to Rape in the 1st, 2nd, and 3rd degrees, classified as Class B, D, and E Felonies respectively, to even Necrophila (having sexual intercourse with a corpse) and Beastiality (having sexual intercourse with an animal), which are classified as Class A Misdemeanours. Penalties range from less than one year imprisonment in the County Jail to many years imprisonment in the State Prison, depending on the jurisdiction, whether a first or multiple time offender, and the age of the victim. Sex Offenders are also included in the Register of Sex Offenders.

 

Sexual Harassment in Nigeria

Unfortunately, the difference between the USA and Nigeria, is that while the former has adequate laws to protect victims and to punish this nasty offence of sexual harassment, the same cannot be said for our country, Nigeria.

The recently enacted Sexual Harassment in Tertiary Educational Institutions Prohibition Act 2016 (the Act) aka Sexual Harassment Act, only protects students in tertiary institutions, and not women (or men) in the workplace. Section 4 of the Act defines sexual harassment inter alia as 1) sexual intercourse between an Educator and a Student usually less than 18 years or an imbecile or person of low mental capacity 2) unwelcome sexual attention from an Educator 3) lewd unwelcome remarks from an Educator to a Student 4) implied or expressed promise of a reward by an Educator to a Student or express or implied threat of reprisal or actual reprisal, if the Student refuses to comply with the Educator’s sexual demands. Grabbing, pinching of breasts and so on, are prohibited. The offence carries a penalty of between 2 and 5 years imprisonment, with no option of fine.

I wonder why this legislation, is restricted to only tertiary institutions, and not secondary institutions and the work place. After all, there was the recent case of a male teacher at my alma mater, Queen’s College, Yaba, Lagos, who was accused of sexually harassing some of the students. Apparently, the students were threatened with all sorts of reprisals like expulsion, and were afraid to pursue their allegations to the logical end.

Likewise, in the Nigerian workplace, sexual harassment is a daily occurrence. Even domestic staff are not excluded from the menace; and because they are seen to have little or no voice, they are not only sexually harassed, but in many instances, raped, impregnated by their employers, and then evicted from the work place.

 

Ways to Handle Harassment

In the USA, some of the steps that sexual harassment victims are advised to take, are to first of all, let the Harasser know that the sexual advances are not welcome. If the Harasser persists, the victim can record the harassment with their phone or other recording device, as evidence. The victim should also report the harassment to a superior officer or the Human Resources Manager or Senior Management, if need be. It is the Legal and moral duty of the Employer, to discreetly investigate the sexual harassment allegations. There is also the EEOC where sexual harassment complaints can be filed, while different States have Human Rights Commissions like the New York Division of Human Rights, to also file complaints. Legal proceedings can also be instituted.

The first step in Nigeria, is a change of our mindset that sexual harassment is not such a big deal between adults in the work environment – it is. We also have to update our laws with respect to sexual crimes (for instance, I do not believe that the Penal Code recognises the fact that a man can rape his wife), and enact laws criminalising sexual harassment in the workplace (and in every other area they are required to be enacted). Apart from the management of the workplace, the National Human Rights Commission, would be one of the go-to places to file complaints, as sexual harassment can be seen as some form of discrimination on the basis of sex, which is contrary to Section 42 of the 1999 Constitution of Nigeria.