WHAT YOU MUST KNOW ABOUT SEXUAL HARASSMENT – Prof Obiaraeri 

WHAT YOU MUST KNOW ABOUT SEXUAL HARASSMENT – Prof Obiaraeri

By Nnamdi Obiaraeri

In a permissive society, ignorance of the law is often, albeit foolishly, clothed with arrogance. Arising from crass ignorance, many people do not know what constitutes sexual harassment and that it is both an actionable criminal and civil wrong. Many do not also know that sexual harassment is a genre of sexual violence which can occur in different forms, places and times. Both the harasser and the victim or survivor can be of any gender (male or female) and age. This unwanted sexual behaviour can often make victims and survivors feel upset, scared, humiliated or unsafe. For some, it can have a serious impact on their physical and mental health, and affect their quality of life. Simply stated, sexual harassment can happen in person, on the phone, by text or email, or online. Daily or routinely, sexual harassment occurs in public or private places and institutions like schools (primary/secondary/tertiary), military and para-military organisations and their notorious checkpoints, hotels and other recreational venues, banks and other financial institutions, religious bodies/grounds, markets, motor parks, airports, bus stations, sundry workplaces, inside the bus, train, boat, aircraft, ship and on top of Okada (motorcycle) or elsewhere.

Meanwhile, it is hornbook law that ignorance of the law as opposed to ignorance of the facts has never afforded anybody an excuse; for everybody is supposed to know the law. This is expressed in the Latin maxim “ignorantia juris quod quisque scire tenetur excusat”. The philosophy behind this intervention is to create public awareness about the scourge of sexual harassment. It is indubitable that everyone is entitled to the dignity of his person. No one is to be humiliated or tormented or exposed to indignity or degrading treatment. Sexual harassment is a cruel, inhuman and degrading treatment. Thus, the sanctity of the dignity of the human person, sexual choices and preferences of individuals should be maintained at all times. As will be seen shortly, it very problematic to either comprehensively define or erect an exhaustive list of what constitutes sexual harassment for which reason many may not know that they have sexually harassed another or that they have even been sexually harassed.

On a general note, sexual harassment may be verbal, non-verbal or physical. In Nigeria, Order 1, Rule 10 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 interprets “sexual harassment” to mean an unwanted, unpleasant, offensive or threatening conduct of a sexual nature distinguished from sexual attention that is welcome and mutual. Sexual attention becomes sexual harassment if (a) the behavior is persistent, although a single incident or instance can constitute sexual harassment; and/or (b) the recipient has made it clear that the behaviour is considered offensive; and/or (c) the perpetrator should have known that the behaviour is regarded as unacceptable.

On the other hand, the Rape Crises England and Wales Organisation states that sexual harassment is any unwanted sexual behaviour that makes someone feel upset, scared, offended or humiliated, or is meant to make them feel that way. Sexual harassment is a type of sexual violence – the phrase “we use to describe any sexual activity or act that happened without consent.” Other types of sexual violence include rape and sexual assault. Victims and survivors of sexual harassment are often told that they are being ‘unreasonable’ or ‘too sensitive’, or that they ‘can’t take a joke’ but sexual harassment is never funny and should not be happening.  In England and Wales, the legal definition of sexual harassment is when someone carries out unwanted sexual behaviour towards another person that makes them feel upset, scared, offended or humiliated. It is also when someone carries out this behaviour with the intention of making someone else feel that way. This means that it can still be sexual harassment even if the other person did not feel upset, scared, offended or humiliated. The Rape Crises England and Wales Organisation catalogues sexual harassment to include- (i) sexual comments or noises- for example, catcalling or wolf-whistling. (ii) Sexual gestures. (iii) Leering, staring or suggestive looks. This can include looking someone up and down. (iv) Sexual ‘jokes’. (v) Sexual innuendos or suggestive comments. (vi) Unwanted sexual advances or flirting. (vii) Sexual requests or asking for sexual favours. (viii) Sending emails or texts with sexual content – for example, unwanted ‘sexts’ or ‘dick pics’. (ix) Sexual posts or contact on social media. (x) Intrusive questions about a person’s private or sex life. (xi) Someone discussing their own sex life. (xii) Commenting on someone’s body, appearance or what they’re wearing. (xiii) Spreading sexual rumours. (xiv) Standing close to someone. (xv) Displaying images of a sexual nature. (xvi) Unwanted physical contact of a sexual nature – for example, brushing up against someone or hugging, kissing or massaging them. (xvii) Stalking. (xviii) Indecent exposure. (xix) Taking a photo or video under another person’s clothing – what is known as ‘upskirting’.

From the guidelines of the United States Equal Employment Opportunity Commission, sexual harassment includes a really wide range of annoying, pestering, provocative or aggravating unwelcome behaviours, such as: (i) Actual or attempted rape or sexual assault. (ii) Unwanted pressure for sexual favors. (iii) Unwanted deliberate touching, leaning over, cornering, or pinching. (iv) Unwanted sexual looks or gestures. (v) Unwanted letters, telephone calls, or materials of a sexual nature. (vi) Unwanted pressure for dates. (vii) Unwanted sexual teasing, jokes, remarks, or questions. (viii) Referring to an adult as a girl, hunk, doll, babe, or honey. (ix) Whistling at someone. (x) Cat calls. (xi) Sexual comments. (xii) Turning work discussions to sexual topics. (xiii) Sexual innuendos or stories. (xiv) Asking about sexual fantasies, preferences, or history. (xv) Personal questions about social or sexual life. (xvi) Sexual comments about a person’s clothing, anatomy, or looks. (xvii) Kissing sounds, howling, and smacking lips. (xviii) Telling lies or spreading rumors about a person’s personal sex life. (xix) Neck massage. (xx) Touching an employee’s clothing, hair, or body. (xxi) Giving personal gifts. (xxii) Hanging around a person. (xxiii) Hugging, kissing, patting, or stroking. (xxiv) Touching or rubbing oneself sexually around another person. (xxv) Standing close or brushing up against a person. (xxvi) Looking a person up and down (elevator eyes). (xxvii) Staring at someone. (xxviii) Sexually suggestive signals. (xxiv) Facial expressions, winking, throwing kisses, or licking lips. (xxx) Making sexual gestures with hands or through body movements.

Sexual harassment is gender neutral. This means that any sex, male or female, can be the object or victim of sexual harassment. Thus, a male can sexually harass a female and a female can sexually harass a male. Sexual harassment does not have to emanate from persons standing in position of authority or fiduciary relationship such as master and servant, employer and employee, teacher/lecturer and student or other such examples. Where there is fiduciary relationship (such as lecturer and student) there is a presumption that the victim is incapable of giving consent. Nevertheless, a weak or weaker person or a subordinate can sexually harass his or her superior, boss or employer. Hence, a student can sexually harass a teacher/lecturer. A church member can also harass a priest and vice-versa. It is the person receiving the sexual behaviour who decides if it is unwanted – not the person doing the behaviour. It does not matter if other people think the unwanted sexual behaviour is okay or if it is common in the place where it happened. Furthermore, unwanted sexual behaviour does not need to be intentionally directed at the victim or survivor -it can be something they witness or overhear.

In Nigeria, there is a commendable elaborate protocol for redressing workplace sexual harassment and discrimination under the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Sexual harassment that happens outside the workplace is left to the general laws of the land and the protocol for its redress is not as clearly regulated as workplace sexual harassment. Against this lacuna, it is expected that Government agencies, Civil Society Organisations, Academic Institutions or Schools, Military and Para-Military organisations, Religious bodies, Professional and Trade Unions, employers of labour and other stakeholders should maintain an aggressive enlightenment campaign against sexual harassment since ignorance of the law does not excuse.

In summary and unequivocally, a note of warning must be sounded that while sexual harassment is a sensitive issue and its ramifications variegated, yet, the onus or burden of proof of sexual harassment is placed on he or she who alleges. Allegation of sexual harassment must not be raised on frivolous or flimsy grounds. By section 131(1) of the Evidence Act, 2011 as amended, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The law is well settled that it is he who alleges the positive that must prove what he alleges positively. The Latin maxim is affirmanti non neganti incumbit probation (the burden of proof is upon him who affirms not upon him who denies). As far back as 1978, in the case of ANTHONY ODUNUKWE v THE ADMINISTRATOR GENERAL EAST CENTRAL STATE (1978) 1 SC 25 at 31, the Supreme Court of Nigeria held that it is settled law that he who asserts and claims must prove what he claims and where he has wholly failed to prove his claim, the Defendant is entitled to an order in his favour dismissing plaintiffs claim. This line of reasoning has remained trite and settled till date as exemplified in the recent judgment of the Supreme Court delivered on Friday, the 24th day of January, 2025 in CBN v OCHIFE & ORS (2025) LPELR-80220(SC) (Pp. 46 paras. A).

A new normal is possible!