LAWYERS are meant to uphold justice, equity and the rule of law. It is therefore worrying that matters like sexual harassment are still rife within the legal fraternity.
The International Bar Association’s (IBA) 2019 report, Us too?: Bullying and Sexual Harassment in the Legal Profession, found that 24% of Malaysian female respondents and 6% of Malaysian male respondents have been sexually harassed in the course of their work.
The 87 Malaysian legal professionals who responded to the survey were mostly working in private law firms. Globally, the report surveyed 6,980 respondents from 135 countries.
Malaysia also recorded one of the highest bullying rates within the legal profession affecting 53.6% of Malaysian respondents while 15.3% of the overall Malaysian respondents said they experienced sexual harassment, the global report found.
Sara*, a senior lawyer who is based in Kuala Lumpur, has been at the receiving end of unwanted advances in the course of her work.
“I’ve had a situation where my former boss made propositions, saying things like ‘If you were single, would you sleep with me?’” she tells Sunday Star.
Sara also recalls a situation where a male colleague inappropriately touched her during an office function.
“At the time I chose not to take any action because this colleague of mine reported to a very influential boss, ” she says.
Sara explains that the former colleague has done similar things to other legal practitioners. Both the former boss and colleague are still working in the legal field.
Perpetrators of sexual harassment can also include clients.
“If a client was being funny, you don’t think you can complain about it. Actually no one really complains and assumes that’s the culture, ” she says.
“I wanted to become a partner and grow in the firm, and so you just learn to live with it. At the end of the day, it is about surviving, ” she says.
Although the Bar Council has distributed a circular on sexual harassment, the choice to adopt the anti-harassment policy is optional and there is no force of law to ensure that all legal entities subscribe to it.
“The Bar Council already has that policy, but they need to take steps to insist that firms adopt it and have procedures in place. Law firms have to be more proactive to protect their employees. Hopefully, the Legal Profession Act (LPA) will be amended and we can have some recourse there, along with the Sexual Harassment Bill, ” she adds.
Sara is not alone in her plight.
In tweets addressed to Inspector-General of Police (IGP) Ahmad Hamid Bador and Attorney-General Tommy Thomas in mid December, a former lawyer claimed that she faces difficulty receiving updates on a sexual assault police report she made over six months ago against another lawyer.
“Is this how you treat a sexual assault survivor? And then pretend to be surprised why most victims remain silent?” the former lawyer asked.
“I had no choice but to leave practice, for fear of repercussions from my very own fellow legal practitioners, ” she added.
During the incident at a criminal lawyers’ annual dinner in June 2019, the former lawyer claimed that she was touched and grabbed by the alleged assailant who was said to be drunk.
When told to stop, not only did the assailant disregard her pleas but he instead turned aggressive and issued verbal threats, said the former lawyer.
More policies needed
The IBA study found that globally, targets do not report in 75% of sexual harassment cases and 57% of bullying cases.
Across the world, 53% of legal workplaces had policies in place and 22% had training to address these issues. In Malaysia, only 17% of respondents said their workplaces had policies and only 7% had training.
According to the study’s author, Kieran Pender, on a preventative and responsive level, not enough is being done in Malaysia.
“Of course policies and training are not a magic answer, but they are necessary starting points, ” says Pender when met in Kuala Lumpur recently.
Malaysian legal practitioners felt a low degree of satisfaction with their workplace’s approach to preventing bullying and sexual harassment – only 13% rated their workplace’s approach as good or excellent, compared with 31% globally.
“It is really important that senior leaders, Bars and regulators signal and say, ‘this is not OK’. It is not OK in any profession, but particularly not OK in law given law is founded on high ethical standards. Also, it’s our profession that is advising other sectors. We can’t serve that function effectively and with integrity if we don’t have our own house in order, ” says Pender.
Last month, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail announced that a special tribunal will be set up to manage and hear cases involving sexual harassment.
Dr Wan Azizah, who is also Women, Family and Community Development Minister, said it was part of the ministry’s plan to improve the justice system involving the issue.
The tribunal will be included in the government’s new Sexual Harassment Act which is expected to be tabled this year.
The fear of reporting
One of the reasons victims do not report cases of sexual harassment is because of the fear of repercussions, says Association of Women Lawyers (AWL) President Sheena Gurbakhash.
“Victims fear being branded troublemakers or being difficult to work with, especially if the aggressor is powerful, respected and very senior, ” she explains.
There also exists a concern that reporting will impact their professional advancement and career prospects.
However, this is not a problem that is unique to the legal community.
A recent study titled “The Effectiveness of Existing Laws to Prevent and Curb Sexual Harassment” by the Asian Strategy and Leadership Institute (Asli) found “the fear of threat to family safety” (42.7%), personal safety (42%), and trauma (38.4%) to be major internal factors discouraging Malaysians from lodging reports.
Despite the Bar Council’s 2007 Code of Practice on Sexual Harassment, a 2014 AWL survey discovered that many lawyers did not know about the Code of Practice or how it works.
“As far as we know no complaints have been lodged. Clearly, given the extent of the problem, reporting mechanisms are not enough, ” adds Sheena.
“Ideally there should be clear policies and codes of conduct in place in the workplace which also cover workplace social situations so people know there are lines which should never be crossed, ” she adds.
Sheena believes that among the first steps to address this problem is to ensure support within law firms and the legal profession as a whole for those who come forward.
“Our members have acted in both their personal and professional capacity to provide support for those affected by sexual harassment.
“We need to recognise that it takes tremendous courage to speak out and ensure that in the process of seeking redress, victims are not further traumatised or victimised, ” she explains.
Furthermore, there is an urgent need to eradicate the culture of “victim blaming”.
“Questions like ‘what were you wearing’, ‘how did you behave’ are still asked.
“These are irrelevant questions that only empower the aggressor.
“No means no. Stop means stop. No one ‘asks’ to be sexually harassed or bullied, ” says Sheena.
“We need to do more to inculcate a culture where boundaries and limits are respected regardless of seniority, race, religion or gender, ” she adds.
Time for action
Kuala Lumpur Bar Gender Equality and Diversity Committee’s Chairperson Sharmila Ravindran says the committee has received numerous informal complaints of sexual harassment from both men and women.
“Generally the complaints are against a colleague, client, boss or persons who are authoritative figures, ” Sharmila, who is also principal of Messrs Ravindran law firm, tells Sunday Star.
She describes one complaint, where a senior lawyer threatened his pupil by warning her about lodging any complaints against him as he would then make sure she never practised as a lawyer in the country.
For now, there are some avenues of complaint but many are unwilling or unable to lodge a report.
Sharmila points to the Bar Council’s Code of Practice on the Prevention and Eradication of Sexual Harassment in the Work Place which has a complaints mechanism to provide workplaces that are safe.
The Advocates & Solicitors Disciplinary Board is another body that can receive complaints from victims who have been sexually harassed.
“However to date, these mechanisms have not been tested as no one has ever lodged official complaints in relation to harassment at the workplace, ” she says in an email interview.
Therefore, Sharmila says that it is of utmost importance that in-house mechanisms be statutorily introduced and enforced in workplaces all over the country.
“There is a dire need for a comprehensive Sexual Harassment legislation and policies of conduct and mechanisms for enforcement which will help to set a more desirable norm of conduct in a social and professional context, ” she says.
Additionally, Sharmila highlights the need to acknowledge the culture of victim-shaming that is prevalent in society, and as a result, a general fear by the victims to step forward and speak about their experience which may be caused by the fear of being ostracised, mocked or of being judged.
She also believes that the human resources departments of law firms need to be better equipped to deal with harassment complaints.
“Most of the time HR personnel are not trained or equipped with the right internal framework or processes to deal with sexual harassment complaints, ” she says.
Law firms need to put more emphasis on creating work values and principles at the workplace.
“It cannot always be just about billing and collection targets and winning arguments in court. It is also about standing up and speaking out about what is wrong, in your personal space, ” she says.
The Bar Council is concerned about the reluctance of victims to come forward and lodge complaints to the authorities or the police, says its president, Datuk Abdul Fareed Abdul Gafoor.
On the fear of repercussions for those who lodge complaints against colleagues, superiors or clients, Abdul Fareed gives his assurance that the law has enough provisions to protect victims of any crime.
He says Malaysia has a code of conduct governing sexual harassment.
Additionally, Section 354 of the Penal Code also provides for offences of outraging modesty.
“On the other hand, the Penal Code and Multimedia Communications Act equally apply for physical or cyber bullying, ” says Abdul Fareed.
“As for the Bar, the Bar Council takes heed of such complaints and has introduced a new proviso in the incoming new Legal Profession Act by classifying sexual harassment as misconduct.”
Abdul Fareed adds that any lawyers who have experienced and are victims of such acts can lodge complaints to the Advocates and Solicitors Disciplinary Board.
“The Bar Council wishes to reiterate that we do not condone such despicable behaviour, and will cooperate in whichever way possible to assist investigations if it involves our members, regardless whether they are victims or perpetrators of such crime.
“Many victims fall prey due to their vulnerabilities, and are afraid of being victimised by superiors or colleagues.
“Many tend to suffer in silence, and relent to fate due to fear of consequences that might ensue upon lodging complaints or police reports, ” he says.
On sexual harassment reports by legal practitioners to the police, the Bar Council urged the police to view such reports seriously and to conduct a professional investigation.
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