13/04/2021
SEXUAL HARASSMENT
By Justice Marivic Leonen
The concept of s*xual harassment began in the context of unwanted s*xual relations imposed by superiors on subordinates in the workplace. As early as 1887, the plight of women working in factories and the extortion vis-a-vis s*xual favors that they experience have been noted by several commentators. In 1840, women's moral reform societies in the United States started petition drives for statutes penalizing seduction, in response to what were then inadequate legal protection of women against s*xual predation at work. In the decade before the American Civil War, women's rights movement began pursuing discussions on women's socioeconomic conditions which make them vulnerable to s*xual coercion. Women's rights advocates publicized the case of domestic servant Hester Vaughn who was held guilty of infanticide. After being fired by her employer who impregnated her, Vaughn gave birth alone and impoverished, and left her infant dead. Vaughn's case propelled efforts by women's groups to institute legal reforms to protect women from s*xual predation, and to enable other modes of collective self-help, such as organizing labor unions for women.
These developments made by the early feminist and labor movements were sustained in the 1970s by several lawyers and activists representing women in courts. It was during this time that a concerted retaliation against s*xual harassment was pursued by advocates. The term "s*xual harassment" was coined by Lin Farley during a consciousness-raising session for a Cornell University course on women and work, where the women in the discussion group repeatedly described being fired or quitting a job because they were harassed and intimidated by men. In her works, Farley recognized the s*xual coercion women experienced at work as a "social order that situates s*xual relations between men and women in relations of economic dependency." In April 1975, Farley testified before the New York City Human Rights Commission Hearings on Women and Work, and defined s*xual harassment as "unsolicited nonreciprocal male behavior that asserts a woman's s*x role over her function as a worker." Inspired by the case of Carmita Dickerson Wood, an administrative assistant at Cornell University who quit her position due to harassment by her supervisor, Farley and other women activists at Cornell formed the Working Women United, a women's rights organization that sought to combat s*xual harassment of women in the workplace.
In 1979, Catharine MacKinnon published her book "Sexual Harassment of Working Women" which propelled the adoption of laws on s*xual harassment in the United States. Her central argument was that s*xual harassment was s*x discrimination: "Sexual harassment is discrimination 'based on s*x' within the social meaning of s*x, as the concept is socially incarnated in s*x roles. Pervasive and 'accepted' as they are, these rigid roles have no place in the allocation of social and economic resources." Through the works of Lin Farley and Catharine MacKinnon, the discourse on s*xual harassment translated into that of anti-discrimination.
In 1964, in the United States, the Civil Rights Act prohibited acts of discrimination on the basis of s*x, among others. American jurisprudence subsequently recognized two (2) categories of s*xual harassment: first, quid pro quo; and second, hostile environment s*xual harassment. Quid pro quo harassment conditions employment or job benefits on s*xual favors; while hostile environment s*xual harassment results from s*xual advances which make the working environment hostile or abusive to the employee.
The two types of s*xual harassment recognized in American jurisprudence are akin to s*xual harassment as defined under RA no. 7877. Section 3(a)(l) similarly recognizes that s*xual harassment is committed when a s*xual favor is made a condition for employment or for the grant of certain benefits. Likewise, Section 3(a)(3) recognizes s*xual harassment as committed when the offender's advances result in an intimidating, hostile, or offensive environment for the employee.
In the Philippines, the Anti-Sexual Harassment Act of 1995 is a relatively new law. Although the Revised Penal Code, enacted in 1930, already penalized offenses relating to violations of chastity, Congress saw it fit to enact a new law specifically punishing s*xual harassment committed in an "employment, education, or training environment."
The original provisions of the Revised Penal Code on R**e (prior to its amendment in 1997) already punished a man who has carnal knowledge of a woman under specified circumstances. That the crime is committed in an employment, school, or training environment was not an element. This is also true for other crimes centering on a perpetrator's lascivious, harassing or otherwise vexatious conduct, such as Acts of Lasciviousness, Seduction, and Unjust vexation. These offenses pertain to acts which are not necessarily committed in an employment, training, or school environment.
Under RA no. 7877, an act of s*xual harassment may result in three distinct liabilities: criminal, civil, and administrative. An action for each can proceed independently of the others. In a criminal action, the accused is prosecuted for a wrong committed against society itself or the State whose law he or she violated. In a civil action, a defendant is sued by the plaintiff in an effort to correct a private wrong. The purpose of an administrative action, on the other hand, is to protect the public service by imposing administrative sanctions to an erring public officer.
Sexual harassment as defined and penalized under RA no. 7877 requires three elements for an accused to be convicted: (1) that the employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence, or moral-ascendancy over another; (2) the authority, influence, or moral ascendancy exists in a work-related, training-related, or education-related environment, and (3) the employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who has authority, influence, or moral-ascendancy over another makes a demand, request, or requirement of a s*xual favor.
The key elements which distinguish s*xual harassment, as penalized by Republic Act 7877, from other chastity-related and vexatious offenses are: first, its setting; and second, the person who may commit it. As to its setting, the offense may only be committed in a work-related, training-related, or education-related environment. As to the perpetrator, it may be committed by a person who exercises authority, influence, or moral ascendancy over another.
Since RA no. 7877 is a special criminal statute, the offense of s*xual harassment is malum prohibitum. Thus, in prosecuting an offender for s*xual harassment, intent is immaterial. Mere commission is sufficient to warrant a conviction. The Court explained in Narvasa v. Sanchez the reason why, even without intent, s*xual harassment is penalized: Assuming arguendo that respondent never intended to violate RA No. 7877, his attempt to kiss petitioner was a flagrant disregard of a customary rule that had existed since time immemorial — that intimate physical contact between individuals must be consensual. Respondent's defiance of custom and lack of respect for the opposite s*x were more appalling because he was a married man. Respondent's act showed a low regard for women and disrespect for petitioner's honor and dignity.
This is in contrast with crimes mala in se, which are so serious in their effects on society as to call for almost unanimous condemnation of its members. In crimes mala in se, the intent governs; but in mala prohibita, the only inquiry is whether the law has been violated.
Vedana v. Judge Valencia explained that the criminalization of s*xual harassment was in keeping with "humanity's march towards a more refined sense of civilization": In the community of nations, there was a time when discrimination was institutionalized through the legalization of now prohibited practices. Indeed, even within this century, persons were discriminated against merely because of gender, creed or the color of their skin, to the extent that the validity of human beings being treated as mere chattel was judicially upheld in other jurisdictions. But in humanity's march towards a more refined sense of civilization, the law has stepped in and seen it fit to condemn this type of conduct for, at bottom, history reveals that the moving force of civilization has been to realize and secure a more humane existence. Ultimately, this is what humanity as a whole seeks to attain as we strive for a better quality of life or higher standard of living. Thus, in our nations very recent history, the people have spoken, through Congress, to deem conduct constitutive of s*xual harassment or hazing, acts previously considered harmless by custom, as criminal.
Conviction under RA no. 7877 subjects the offender to criminal penalties. Under Section 7, any person who violates the law shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than P10,000.00 nor more than P20,000.00, or both such fine and imprisonment at the discretion of the court. Since in a criminal action, the State prosecutes the accused for an act or omission punishable by law, the action is commenced by filing the complaint with the regular courts or the office of prosecutor. The criminal action arising from violation of the provisions of RA no. 7877 prescribes in three (3) years.
Criminal liability for s*xual harassment notwithstanding, the offended party may pursue a separate civil action. As stated in Section 6 of Republic
Act No. 7877: Nothing in this Act shall preclude the victim of work, education, or training-related s*xual harassment from instituting a separate and independent action for damages and other affirmative relief.
Section 6 is consistent with Article 100 of the Revised Penal Code, which states that, "Every man criminally liable is also civilly liable." The rationale for this was explained in Rodriguez v. Ponferrada: Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely (1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission.
Civil liability arises from the damage or injury caused by the felonious act. Thus, in a civil action, the real party plaintiff is the offended party, while in a criminal action, the plaintiff is the "People of the Philippines." Furthermore, the quantum of evidence required in a civil action is mere "preponderance of evidence," in contrast to "proof beyond reasonable doubt" which is required for conviction in a criminal action.
Being independent from criminal action, the conviction or acquittal of the accused is not a bar to an independent suit for damages in a civil action. Accordingly, in London v. Bagnio Country Club, this Court allowed an independent action for damages against the accused despite the existence of an ongoing criminal case.
Aside from the actual perpetrator, the employer, or the head of office or institution may also be impleaded in an independent action for damages. They would be solidarily liable for damages if they did not take immediate action on a s*xual harassment complaint.
Section 4 of RA no. 7877 requires the employer or head of office to promulgate appropriate rules and regulations to prevent the commission of acts of s*xual harassment and to provide procedures for the resolution, settlement or prosecution of acts of s*xual harassment.
In the government, the Civil Service Commission promulgated CSC Resolution No. 01-0940, otherwise known as the Administrative Disciplinary Rules on Sexual Harassment Cases, which apply to all government officials and employees. For the private sector, each organization's rules promulgated in accordance with Section 4 shall apply.
Section 4(b) of RA no. 7877 further requires employers and heads of offices to create a "committee on decorum and investigation of cases on s*xual harassment." Pursuant to this, all national or local agencies of the government, state colleges and universities, including government-owned or controlled corporations, were required to create their own Committee on Decorum and Investigation.
Unlike in criminal and civil actions which are brought before regular courts, an administrative action is commenced by filing a complaint with the disciplining authority or agency, or with the Committee on Decorum and Investigation, which shall receive and investigate s*xual harassment complaints.
CSC Resolution No. 01-0940, Section 3 defines s*xual harassment as follows: For the purpose of these Rules, the administrative offense of s*xual harassment is an act, or a series of acts, involving any unwelcome s*xual advance, request or demand for a s*xual favor, or other verbal or physical behavior of a s*xual nature, committed by a government employee or official in a work-related, training or education related environment of the person complained of.
(a) Work-related s*xual harassment is committed under the following circumstances:
(1) submission to or rejection of the act or series of acts is used as a basis for any employment decision (including, but not limited to, matters related to hiring, promotion, raise in salary, job security, benefits and any other personnel action) affecting Jc the applicant/employee; or
(2) the act or series of acts have the purpose or effect of interfering with the complainant's work performance, or creating an intimidating, hostile or offensive work environment; or
(3) the act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a co- employee, applicant, customer, or ward of the person complained of.
(b) Education or training-related s*xual harassment is committed against one who is under the actual or constructive care, custody or supervision of the offender, or against one whose education, training, apprenticeship, internship or tutorship is directly or constructively entrusted to, or is provided by, the offender, when:
(1) submission to or rejection of the act or series of acts as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration.
(2) the act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or
(3) the act or series of acts might reasonably expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of.
CSC Resolution No. 01-0940, Section 4 further gives examples on where and how s*xual harassment may take place:
1. in the premises of the workplace or office or of the school or training institution;
2. in any place where the parties were found as a result of work or education or training responsibilities or relations;
3. at work or education or training-related social functions;
4. while on official business outside the office or school or training institution or during work or school or training- related travel;
5. at official conferences, fora, symposia or training sessions; or
6. by telephone, cellular phone, fax machine or electronic mail.
CSC Resolution No. 01-0940, Section 5 enumerates illustrative forms of s*xual harassment:
a) Physical
i. Malicious Touching;
ii. Overt s*xual advances;
iii. Gestures with lewd insinuation.
b) Verbal, such as but not limited to, requests or demands for s*xual favors, and lurid remarks;
c) Use of objects, pictures or graphics, letters or writing notes with s*xual underpinnings;
d) Other forms analogous to the foregoing.
Casual gestures of friendship and camaraderie, done during festive or special occasions and with other people present, do not constitute s*xual harassment.
Accordingly, in Aquino v. Acosta, the Court agreed with the report of the investigating Justice that the complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a 'beso-beso' fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill motive. The Court explained:
In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter that she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design.
Unlike in a criminal action where the penalty is a fine, imprisonment, or both, the penalty in an administrative action is, at most, dismissal, from the service. This is because an administrative action seeks to protect the public service by imposing administrative sanctions to the erring public officer. As has been explained: Public service requires the utmost integrity and strictest discipline; thus, a public servant must exhibit at all times the highest sense of honesty and integrity, and utmost devotion and dedication to duty, respect the rights of others and shall refrain from doing acts contrary to law, and good.
In addition to RA No. 7877, Congress has since enacted Republic Act No. 11313, otherwise known as the Safe Spaces Act. Signed into law on July 15, 2019, it penalizes gender-based s*xual harassment, and is founded on, among others, the recognition that "both men and women must have equality, security and safety not only in private, but also on the streets, public spaces, online, workplaces and educational an training and training institutions."[115] It addresses four (4) categories of gender-based s*xual harassment: gender-based streets and public spaces s*xual harassment; gender-based online s*xual harassment; gender-based s*xual harassment in the workplace; and, gender-based s*xual harassment in educational and training institutions.
In line with fundamental constitutional provisions regarding human dignity and human rights, the Safe Spaces Act expands the concept of discrimination and protects persons of diverse s*xual orientation, gender identity and/or expression. It thus recognizes gender-based s*xual-harassment as including, among others, "misogynistic, transphobic, homophobic and s*xist slurs."
The Safe Spaces Act does not undo or abandon the definition of s*xual harassment under the Anti-Sexual Harassment Law of 1995. The gravamen of the offenses punished under the Safe Spaces Act is the act of s*xually harassing a person on the basis of the his/her s*xual orientation, gender identity and/or expression, while that of the offense punished under the Anti-Sexual Harassment Act of 1995 is abuse of one's authority, influence or moral ascendancy so as to enable the s*xual harassment of a subordinate.
See: Escandor vs. People, G.R. No. 211962, July 06, 2020
