Mind your actions when dealing with opposite sex
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Late last month, the Beijing people's congress standing committee approved the draft on the Law of the People's Republic of China on the Protection of Rights and Interests of Women (LPRIW).
The Beijing municipality draft defines five forms of sexual harassment against women: verbal, written, images, electronic communication and physical acts. It also says that women who are sexually harassed have the right to appeal to the judiciary and other government organs.
The Beijing draft follows that of Shanghai and Shaanxi province as a local-level legislative response against sexual harassment, all of which have some common features.
First, as supplements of the LPRIW, they assume women to be the default victims of sexual harassment, paying little or no attention to sexual harassment of men.
Second, when it comes to defining what actions constitute sexual harassment and what do not, local legislations circumvent the question. The legal definition just gives a number of behaviors that are seen as sexual harassment and can be proscribed by law. As a result, local laws seldom provide detailed components or standards as proof to establish that a person is guilty of sexually harassing another.
Determining the boundaries of sexual harassment is an extremely difficult task, because sexual intercommunication can be varied, ambiguous and delicate. If every possible sexual harassment behavior and expression were to be included in the law, not only would the legislation process be prolonged, but also the rules would become too trivial to execute.
The Shaanxi people's congress tried to determine how long a man could stare at a woman to be considered guilty of sexual harassment. But it became a standing joke in legal and academic circles when included in the draft.
This is not the only example of local lawmakers' obsession with technicalities. Many local lawmakers seem to have the same weakness when it comes to defining acts of sexual harassment. Some have tried to include all possible behaviors to define the boundaries of sexual harassment. But the effect of such legislations has always been the opposite of their aim.
Sexual harassment is a subjective matter, and cannot have an all-encompassing definition. An act may be sexual harassment for one person, but not for another. The matter is further complicated because opinions can be divided not only between men and women, but also among members of the same gender.
It is very difficult to define the dividing line between flirting and sexual offence in many real-life situations. Many women may even consider as harmless some behaviors of men that the laws see as sexual harassment.
Sexual harassment is an external expression. But defining it is an internal judgment - and could vary from person to person. Thus, the legislatures have to take up the challenge of identifying intricate human mentality through clearly written terms and language while defining sexual harassment. Laws can only grapple with explicit, objective facts, not implicit, subjective motives.
Basically, sexual harassment is more of a moral issue. An act should be considered sexual harassment in its social context, too, giving a judge certain discretionary powers in exercising the law.
Take the United States and the Britian as examples. Though the US Congress and the UK parliament have passed or amended a series of laws to deal with disputes over free speech, press freedom and pornography, they still let judges use their discretion to settle sexual harassment cases.
To solve the sexual harassment definition problem, we must first insist on the principle of "no trial without complaint", and let the onus of providing evidence of the offense rest on the accuser.
Second, we should not only take the act of the accused into account, but also find the social relationship between him/her and the accuser before passing a judgment.
Third, the judiciary should consider all the legal contexts of a case before reaching any conclusion. And lawmakers and judges should pay more attention to the explanations of the Supreme People's Court on sexual harassment, which are very detailed, in order to avoid technical mistakes.
One of the reasons why local people's congresses are passing laws against sexual harassment is to warn people of the possible troubles certain acts can cause.
Since sexual harassment is an individual and subjective issue, only judges with the necessary social experience and insight should be allowed to deal with such cases. They should never consider a case at face value. Instead, they should review its every aspect, including the social relationship and status of the accuser and the accused. If a judge reaches a verdict in haste on the basis of explicit information and technicalities, he/she can prone become to committing mistakes.
Talking of feminism, sexual harassment legislations reflect the enhancement of women's status in China. Now that they have been implemented, men in China should be more cautious while interacting with women and pay more attention to their behaviors to avoid being accused of sexual harassment because of an unconscious act.
The author is a professor and director of the Research Center for Social Development, affiliated to the Zhongnan University of Economics and Law.
