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Alternative justice system for pursuing sexual harassment cases

Thai justice system, in its criminal procedure, is not suitable to sexual harassment cases. There should be an alternative justice system because the criminal procedure is not friendly to sexual harassment cases. A harassed person must report the case to the police and give evidence. In many cases harassed are threatened by offenders. They are so afraid that they dare not even report to the police. We believe that sexual harassment exists in every organization. But the procedure of prosecution must be changed.

Although there is a provision for sexual harassment in the Code the procedure of a case is still be the same, that is, an harassed person must report to the police, find evidence because the law provides that person who accuses has to attest [bring witness or evidence to court]. A jury system should be use in Thai court system. And there must be a process of the injured and witness’s protection.

Socialization

Social measures are important to address the sexual harassment problem. Socialization is a process by which members of a society learn to adopt the attitudes, norms, ways of

thinking, behavior patterns of the society in which they live, by several guides such as

parents, friends, and the media.

For example in the family, parents should bring up their son to be a gentleman, he should be a responsible person and respect other people’s rights. This is very fundamental, if he is a responsible person in the family, and always honors women’s rights and does not abuse them, he should grow up as a gentleman in the community. When he gets married, he would be a good husband and family leader, who always respects his wife’s rights. When their children are born, in turn, they would be brought up as a good and responsible person for their family, and thereby for the community.

The media

The media further sexual harassment to some extent. Television melodramas and programs have not aimed to give lessons or ethical examples to the audience. Television producers claim that Thai people don’t like films in which they must think a lot, or where it is not funny. In most Thai series, there is a ‘Katoei’ (man dressed like a woman) who always

has a silly but funny role to play. Television programs often foster inappropriate gender

values. Television serial dramas (known as lakorn) that are often the biggest hits are stories about a love triangle involving a minor wife. Domestic violence, date rape, or discrimination of women and girls from rural areas are often seen in Thai series.

This cannot be immediately achieved, but have to be part of a long-term project. sexual

harassment problems are related to the social environment. There should, therefore, be

more ethical lessons to the younger generation, and also sex education. education should not be confined only to schools but also extend to other media, for example, the internet, television, radio, and newspaper, which should have more programs on sex education. Television is especially important to young audiences, but the programs should be presented at appropriate times. The mass media can play crucial roles to promote people’s awareness.

Changing the court system

Since it’s hard to change people attitudes like the case we mentions earlier about the judge attitude toward the rape case. Then Thailand should change the legal system or court system itself. Therefore Thai’s court should use “The Jury system” to reduce the effect from attitude toward Gender.

Start from yourself

If you are being sexually harassed don’t stay silent hoping it will go away. This behavior usually escalates if you don’t stop the harasser with a firm, proactive stand. Call the person on their behavior immediately, ask them to stop and warn them that you will report them if they continue. If it continues, report the harassment. Your employer has the responsibility to take each complaint seriously and investigate.

Sexual harassment policy

A written policy would make clear that sexual harassment in the workplace will not be

tolerated in any circumstance. The Australian Human Rights and Equal Opportunity

Commission provides a helpful checklist for developing the sexual harassment policy as

follows (HREOC 1996a: 35-38):

l   A strong statement on the organization’s attitude to sexual harassment

l   The organization’s objectives regarding sexual harassment

l   A clear definition of sexual harassment

l   Some examples of sexual harassment

l   What is not sexual harassment

l   The circumstances in which sexual harassment can occur

l   A statement that sexual harassment can amount to a criminal offence

l   The consequences if the policy is breached

Education / training program on sexual harassment

An organization should run a promotional and educational program to explain its policy

on sexual harassment and to raise awareness of the issue as well as the unpleasant

consequences on the organization. The program should include, for example, the

concept and definition of sexual harassment, the complaint procedures, remedial

measures, etc.

Designated official

Another important process is to designate particular employees as sexual harassment

complaint officers, such as a human resources manager. These officers will deal with

both formal and informal complaints. They may be selected on the basis of their skills,

experiences or their concern for gender equality. The complaint officers should have

senior status to ensure their role is respected by other members and that they can operate

with the necessary level of authority (HREOC 1996a: 40).

Definition of sexual harassment

The definition must be compliant with that which is provided in the sexual harassment

law. This section should provide examples of cases that amount or may amount to

sexual harassment.

The major concerns are statistics on sexual harassment, the understanding of people and attitudes toward the topic and the process of making feminist law.

1. Statistics on sexual harassment

In Thailand, one of the reasons that the problem of sexual harassment is not clear concerns is the lack of statistics on it. We lacked of survey statistics, we cannot say how serious the problem is. Moreover, most of the people who were sexually violated, felt ashamed to reveal the facts’. With no statistics, we cannot say for sure whether sexual harassment is a serious problem.

2. Understandings of sexual harassment

The understanding of the concept of sexual harassment can be considered from two main points: the difference in nature/psychological make-up between men and women, and the difference in the concept itself.

• According to a psychologist interviewed, the understandings of men and women are different. Sexual harassment problems in Thai society start from misunderstandings between women and men; men may think one thing while women may feel another. Women’s instinct and mentality and that of men are different, and they have to exchange and learn from one another. A US study on men who raped women and were imprisoned. When asked, after they had been released, whether they would commit the same offenses, 40% of them responded that they might if they had a chance. They explained that they did not believe that the women would not like it. Therefore, as long as there is no sex education to give an understanding of what women and men really want from each other, the problems have yet to be resolved.
• Apart from the difference between gender, people have different understandings of the term sexual harassment. Some people have a narrow understanding, that is, sexual harassment is a lower degree of sexual offences not amounting to indecent acts and rape. In contrast, some people have a narrow understanding, that is, sexual harassment is only indecent acts and rape. This leads people to have different views on sexual harassment resolution for example When they face sexual harassment they don’t know that they have been sexual harass and didn’t report to the organization.

3.     The Attitudes toward gender

Attitudes toward gender must be addressed first. Sexual harassment problems are hard to solve because related to the attitudes of Thai people. We have in fact a great number of good laws but our problem is law enforcement. There may be a case, for instance, where a wife had reported the police about her husband’s committing violence against her. Having found out that the parties are husband and wife, the police may not be willing to pursue the case, or he may try to persuade the parties to come to a compromise, because thinking that is the family business. So the police should change the perspective because even they’re married doesn’t mean they are freely allow to hit and injure each other.

Or in the case that a girl was raped by her father, and since the father was the only family’s supporter, the child may not want the father to be prosecuted, and the family would lack supports. In such cases, if the offender had some kind of psychoneurosis that needs psychiatric treatment and if he had not been properly treated, he may commit graver violence in the future or even kill the victims. The aforementioned cases somehow reflected attitudes of the Thai people and society. That’s why Thai society needs to change their attitude by not seeing men as one and only center of the family or the one who support family.

4. Sexual Harassment Law and the organization policy are not effective

The weaknesses of sexual harassment provisions in the Labor Protection Act B.E. 2541 (1998). In article 16 of the Labor Protection Act,

‘it is forbidden for an employer or a person who is in overall charge of staff, a supervisor, or an inspector to sexually harass employees who are

women or children.’

The article states that sexual harassment is illegal, but it does not offer the straight definition of the term. Understanding of this concept was not clear, and the lack of understanding affected the enforcement of the law.

The point is a fundamental concept of people, to enact law is not to copy from

other cultures or laws because different societies judge the same act differently. If not, there will be difficulties in legislation, trial or burden of proof. Both parties as well as judges may be confused as to how to sentence.

Section 16 of the Labor Protection Act states only female and child employees; male employee have no such protection and the word ‘employer’ in article 16 was not clear as to whether it meant only Thai employers or could include foreign employers

Sexual harassment under section 16 must be brought to the court by means of criminal law procedure. The charge of a criminal offender under the Labor Protection Act must be in compliance with the Criminal Procedure Code as well. Therefore, if an employee is harassed and wants to pursue the case, or if a labor inspector comes across an offence, an employee has to lodge a compliant with the labor inspector, who is then required to report the case to the police. Then, the harassed employee will be questioned both by the inspector and the police. According to the guidance of the women-labor-protection inspection, if there is an act committed that might be unlawful under section 16, and an injured person wants to make a compliant to a labor inspector, certain procedures are required according to the Department of Labor Protection and Welfare, 2000.

The procedures are complicated, as the harassed person has to be questioned twice, by the labor inspector and then by the police. The actual treatment by the police is often blamed as unfriendly as and more concerned about the preparation than victims.

Apart from the Labor Protection Act, the Department of Labor Protection and Welfare in the Ministry of Labor assigns a Code of Conduct for enterprises in order to ensure the quality of Management System. In the section 5.7.3 in aforesaid Code of Conduct states that enterprises must have measures to protect employees from sexual harassment in any form of verbal harassment, gestures, or physical contacts, especially who are women and children. However, the standard is voluntary. It depends on the concern of employees whether sexual harassment should be addressed in their workplace. There is no legal enforcement of the standard. If a business does not develop such measures, there is no punishment.

“Although there are law and organization policy about sexual harassment in Thailand but the number between a survey on sexual harassment in the workplace of Thai women and the number of people have been sexual harassment reported in firms or law still much difference. This show that many employees didn’t report to an organization or bring the story to court and these lead to the fact that people in organization cannot be enforced by this law and the organization policy.”

People in organization didn’t comply with this Sexual harassment law and the organization policy when it use in Thailand.

Thailand has no clear approach to sexual harassment; no clear legal definition of sexual harassment; no specific authority or organization at the national level to redress sexual harassment; and no statistics on sexual harassment by national surveys. The promotion of awareness of sexual harassment has not yet been the subject of formal campaigns.

Remember !!!

• The harasser may be a woman or a man heterosexual or homosexual. The victim does not have to be of the opposite sex. Anybody can be a victim of sexual harassment, it can be a man or a woman, heterosexual or homosexual, but women are the ones who are more likely to experience sexual harassment routinely.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a coworker, or a nonemployee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.

A survey on sexual harassment in the workplace of Thai women was conducted by the

Suan Dusit Poll, Suan Dusit Rajabhat University (SDU), on 28-30 July 2002. This survey included 1,153 female respondents , 470 from government services (40.76%), 258 from state enterprises (22.38%), 293 from private companies (25.41%), and 132 from banks (11.45%) (SDU, 2002).

Religion and Law have been important factors encouraging the inequality of women. One can see the relevance of Buddhism to Thai attitudes towards sexual harassment in the common response of women that it is the product of ‘kam’ or ‘Karma’. Some women subjected to sexual harassment express their feeling that it is because of their own kam or bad behavior from a previous life. The implication of this attitude is that what happens to them is their own fault.

As seen from cases of violence against women, legal procedures and enforcement do not fully protect the victims. Mass media reports often portraying women as the cause of problems. Thai women are victims of sexual harassment in many forms but the number of sexual harassment cases reported has been quite small compared to countries where sexual harassment law is implemented.

Sexual harassment is often reported in the theme of violence against women such as rape, domestic violence and sexual assaults. This indicates that perceptions of sexual harassment by Thai people may be generally lack understanding of what amounts or boundaries to the meaning of sexual harassment.

The law that embedded in the society can be broadly speaking that women were under the control of their fathers or husbands. Before 1863, a father could sell a daughter to whomever he wanted without her consent. The subordination of women to men was preserve in The Three Seals laws. According to this old family law, women were under the ownership and control of their parents or husbands. An unmarried woman, regardless of age, was under the ownership and control of her parents. When married, a woman was under her husband’s protection. The law operated a double standard of male and female sexualities. A man could have more than one wife, whereas a woman was strictly limited to one husband.

To focus on sexual harassment in the Thailand, the historical background on social construction is provided to help explain some aspects of sexual harassment problems that have deep historical roots such as the issue of bureaucratic society and hierarchies in gender, religion, and law. It is quite easy for men to harass women without fear of retribution when they hold the positions of power. Sexual harassment is not just an effect of modern technology such as the media or the decline of morality, as many people understand it. It also results from social construction in the past, such as a hierarchical society, religion and laws.

A difficulty in studying sexual harassment is the lack of systematic theoretical

explanations for why sexual harassment occurs.

In Sexual harassment theory about the causes of sexual harassment there is a useful model of four-level analysis to review theories about why sexual harassment occurs:

• The natural/biological level
• The organizational level
• The sociological level
• The individual level

1) The natural / Biological level

There are two main emphases within this innermost level

• Hormonal forces
• Evolutionary adaptations

The hormonal emphasis is that sexual harassment is a normal expression of men’s stronger sex drive. However the argue is that this theory is weak because if hormone drives were the cause of sexual harassment, we should find young men and older women whose sex drives are at their peak more likely to harass. However, old men and younger women are more frequent offenders  ( Tangri, Burt & Johnson, 1982; Tang & McCollum, 1996).

The emphasis on evolutionary adaptations is that men and women have evolved different reproductive strategies and psychological mechanisms. The scenario that would lead to sexual harassment is that of the reproductive strategies for men to pursue short-term, low cost, and low-commitment sexual liaisons. Those strategies are presumably to maximize reproductive success for the male, not by ensuring the survival of offspring, but simply by increasing the probability of impregnating females. On the other hand, women, because their reproductive investments ( of time, energy, and risk) are much higher than men’s, should be more sexually cautious and choosier than men.

2) The organizational level

Several explanations of sexual harassment focus on different aspects of organizational

structure. Most of them classify conditions that make sexual harassment easier to occur.

• Sex-role spillover theory

Sex-role spillover theory is considered one of the primary theories of sexual harassment.

Sexual harassment of women at work is often a product of sex-role spillover, which is defined as the carryover into the workplace of gender-based expectations for behavior that are irrelevant or inappropriate to work.

According to this theory, sex-role spillover occurs because gender identity is more salient than work identity and women fall back on sex-role expectations, such as in choices of nursing as a career. Nursing is seen as a ‘caring’ profession, and female secretaries are often expected to attend the needs of male bosses and coworkers and to take care of them.

Sex-role spillover is most likely to occur when the gender ratio is heavily skewed toward either men or women. Under these circumstances, sexual harassment is more frequent. Women employed in a male-dominated workplace, or in non-traditional work, are often treated differently from their male colleagues. They are likely to feel that sexual harassment is a problem at work.

It is hard to find a sufficient number of men working in a female-dominated workplace to compare with women working in a male- dominated workplace in order to test the outcomes for victims of sexual harassment.

Therefore, this theory does not provide sufficient explanation for sexual harassment at work.

• The organization power theory

There are various kinds of power used in organizations, by different bodies in different ways.

• Formal power derives from the organization structure .The levels of hierarchy; who occupies what position; who has access to the important resources of the organization. Those who are in high positions hold formal power and have more chances to exercise it. People who had been harassed are fear to speaking out of retaliation by the higher authority.

From higher position              -   Coercive threats that a person will lose her or his job if refuse

the sexual proposition.

From subordinate                    -   Withhold information, cooperation and support. And threaten to

delay important information that’s necessary for succession.

• Informal power also often operates against women. For example, among male co-workers, organizational power can be created through informal networks among male peers. A woman who occupies the same position as a man often does not have the same level of authority or influence.
• Contra power harassment, sexual harassment by subordinates. Subordinate and peer harassers use sexual or sex-role assertion to gain power or minimize power differentials. Contrapower harassment is a less frequent form of harassment and is nearly always perpetrated by men against women .

3. The socio-cultural level

The sexual harassment at work is ‘an extension of the male dominance that thrives in the larger society’. Gender status is the specific characteristic assigned to gender, with the traditional roles of women as subordinates and men as dominators. In the gender status approach, sexual harassment is one practice serving a social system characterized by patriarchy. Sexual harassment is a mechanism for perpetuating beliefs, attitudes, and actions that devalue women because of their sex and enforce male dominance. It serves the same purpose as other practices in a patriarchal social system, such as rape, prostitution, incest, and pornography.

4. The individual level

The organizational and socio-cultural models, however, fail to explain why not all men

or all power holders harass. Moreover, the reason the same behaviors are perceived and

experienced by some men and women as harassment and not by others has not been explained. Individual differences give explanations as to how different status characteristics such as gender, age, race, marital status, or attitudes, affect sexual harassment regarding characteristics and perceptions of perpetrators and victims.