Demystifying sexual offences against women

The #MeToo movement might not ring a bell to some people. It’s a movement geared towards encouraging women to come out and share their ‘me too’ moments in regards to sexual harassment. The movement was launched after several women, including Oscar Award-winning Kenyan actress Lupita Nyong’o, publicly accused Hollywood producer Harvey Weinstein of sexual misconduct.

And on November 20, 2018, the General Assembly of the United Nations adopted the first resolution on sexual harassment in response to the #MeToo movement, urging States to recognise the current situation of violence against women and girls. The resolution also demands that states take measures to ensure that employers in all sectors are held accountable for any violations of sexual harassment laws and regulations,” explains Vivian Mwende, an advocate of the High Court and legal counsel, International Federation of Women Lawyers (Fida).

Closer home, last year in November, a top manager at Equity Bank linked to sexual harassment was dismissed from work. The accusations levelled against him were made on Facebook posts, which prompted the bank to carry out investigations. He was accused of making inappropriate advances towards female interns.

Unfortunately, most women who have been sexually harassed live in perpetual fear of their aggressor and some are even afraid of sharing their experiences as they fear being judged negatively by society. “Sexual harassment is very rampant in work environments and learning institutions today,” attests Mwende.

“When a woman gets sexually harassed, it revolves around her dignity and often times she fears to speak up. More often than not, the victim will be concerned about what her colleagues and those close to her will think of her,” explains Mwende. “There is also the fear of being doubted and the imminent fear of losing her job.”

"Sexual harassment is a criminal offence and should be reported the first time it happens. If your company has a Sexual Harassment Policy, you should report the incident to the HR immediately. However, in incidents where HR does not have this policy, the aggrieved party should report to police or take up the matter with the Employment Labour Relations Court," explains Mwende.

The fear of losing her job was so paralysing that when Lexy, not her real name, was sexually harassed at her workplace, she chose not to purse justice. “Some time earlier in the year, I reported to the office at around 7.10am. As I was walking to the sales office, I noticed that my immediate manager was in the office and decided to walk in and say hi,” narrates Lexy, a 29-year-old marketer. He extended his hand to me for a handshake. I offered my hand in greeting but he pulled it and got up and walked towards me while still holding my hand tightly. When he got to where I was standing, he pulled my face by the chin and kissed me forcefully. I couldn’t fight back because he is much stronger than I am,” explains Lexy.

“Luckily, the office assistant walked into the office and the manager released me after he heard the door opening and footsteps approaching. Immediately, I left his office and walked to the sales team office and shared a post on my Facebook page about sexual harassment at work,” she says. "I seemed to have opened a Pandora's box as women openly shared how they had experienced sexual harassment. The feedback was overwhelming as it turned out that either a woman knew someone who had experienced it or she was a victim, with the most common complaint being, 'sex for a job'.

Lexy reported the matter to HR department, which investigated the matter and suspended him for two weeks since they could not get rid of him entirely. “The penalty for a convicted sexual harassment offender in our company is summary dismissal or three months unpaid compulsory leave. However, the company ‘cannot’ fire the said manager as he is too ‘valuable’ to the organisation,” laments Lexy. HR also cautioned her to ‘tread carefully' as they could not risk having a bad name out there. “I’m still traumatised from the incident as I always imagine it could have been worse. The thought that a workmate sexually harassed me still haunts me and I always wonder if I’m safe in the office. I feel justice was not served and I’m bitter, but I need the job and have had to let it rest,” she says.

Anna* had just been employed as a teacher after graduating from university when the principal started making advances at her. “My entire village was so proud of me, and I was eager to do them proud,” she reminisces. “He would summon me to his office several times and ask me to sleep with him so he would increase my salary. I refused and he resorted to telling me to collect my salary outside the office — in a hotel,” explains Anna.

“The first month I agreed to his terms and had coffee with him as he gave me my salary but I could not do it another month. His advances did not stop either and before the end of the term, I had been fired!” she says. “I wish more women would speak out against this sexual injustice. But having been a victim, I understand where they are coming from. It leaves one so traumatised that you do not know who to believe or open up to,” says Anna.

When Loise* started working in advertising as an account executive at the age of 20, she was excited, especially after she was confirmed as a permanent employee after three months. “I remember my colleagues telling me how lucky I was as some of them were still waiting to be confirmed six months later,” says Loise, who notes that she never though much of it. “I would report earlier than most of my colleagues and usually left late since I did not have any family obligations,” she narrates. The marketing manager was always very helpful to Loise, who attributed it to her zeal for the job. “The boss would give me a list of clients to see and would facilitate for company transport for my meetings with clients,” she says. I took advantage of the existing goodwill and was soon among the top marketers, says Loise.

“Now in hindsight, I realise that all along I had been a victim of sexual harassment but was blinded by my desire to excel at work. I remember the first time it happened — I was in a lift as we went to see a client with my boss. He straightened my collar, ‘accidentally’ brushing against my breast, which I ignored,” explains Loise. “The next instance was during a staff party when he fondled my bottom and excused his action with alcohol,” she says. Loise admits that her male supervisor was extremely nice to her and his regular compliments never quite set off the alarm bells in her mind.

“One day, however, he had insisted I should pass by on a Saturday so we could prepare a list of clients for the following week. I had a problem with it since we do not work on weekends but he claimed that the following week he had personal business to attend to,” she says. “Up until today I regret giving in to his pressure,” laments Loise. “The boss, who I knew as an innocent man, ripped off my blouse and started fondling my breasts while tugging at my skirt. My tears did not move him and salvation only came when we heard someone ringing the office doorbell. I remember picking my bag and leaving in a huff. The only person I could share with was my best friend, who advised me to resign. We were too young to know better and I went along with her decision,” narrates Loise.

Karen’s* story is similar but different in the sense that the man who indecently touched her was neither her employer nor her supervisor. “My girlfriend and I were walking to the bus station on our way home when a man inappropriately touched my bottom near Archives in Nairobi. I was infuriated and my first thought was to confront him,” explains Karen. “On turning, I saw him walking away staring at me daring me to go after him. I froze and could not as I realised he might be armed and could be endangering my life,” she says. “I live in constant fear of a repeat episode.”

Mwende clarifies that when a stranger touches a woman in a degrading manner, it is referred to as an indecent act. “An indecent act is described as an intentional and unlawful act, which does not involve penetration. It is covered under the Sexual Offences Act 2003. This should not be confused for sexual harassment, which involves two parties who have an existing relationship. Such relationship being either an employee/employer relationship or teacher/student relationship, where sexual favours are expected in return of promotion, pay rise or good grades, among others,” the advocate explains. The penalty for an indecent act is imprisonment not exceeding five years or a fine not exceeding Sh50,000 or both, she says.

Mwende encourages aggrieved parties to report sexual harassment. “When you keep quiet, you have empowered the perpetrator to commit the same offence to someone else,” she advises.

She also encourages women to keep any communication between them and the aggressor since the burden of proof lies with the party alleging harassment, “It doesn’t matter who commits the offence. It could be your supervisor or co-worker; when it comes to sexual harassment the burden of proof normally lies with the person who is claiming harassment. Further, a lack of intent, where the accused claims that he ‘did not mean to’, is not a defence to an allegation of sexual harassment,” explains Mwende.