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JAN 27 — Our statement comes in light of recent public backlash against some of the responses and statements made by certain members of the legal profession some of whom hold notable positions within the legal fraternity.
While it is premature to take sides on the recent allegations of sexual misconduct by a notable member of the Bar and whilst we maintain a position not to delve into the alleged facts raised by either party, we are disappointed with the manner in which some members within the profession have responded to the issue.
We fear that their actions are indicative of a certain archaic and subconsciously sexist mindset that continues to exist in the system. This is concerning because it is an unexpected wake up call for vulnerable persons in the profession who are now faced with the reality that some of the individuals whom they believed would advocate for a safer working environment and community may possibly be enablers of sexual misconduct instead.
It is also disconcerting to note the trivialisation of the concept of conditional consent by certain quarters. While conditional consent is a concept that remains largely unexplored here in Malaysia, we do not believe it is difficult to envision a situation where consent can be vitiated. For example, under Section 375© of our Penal Code, sexual intercourse with consent can still qualify as rape if such consent has been obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception.
Conditional consent is a legal concept that is in its development stage. Though we understand the legal and evidential hurdles around this concept, YLM acknowledges conditional consent as a legal concept that needs to be addressed legally and morally in Malaysia. Other Commonwealth countries have taken positive steps in the right direction in recognising conditional consent as a legal concept and it is time the Malaysian Bar and Malaysia move in lockstep with those jurisdictions.
In times where one is faced with the difficult choice of picking the side of a friend or a victim, it may be important to remember that silence may be a better option especially in light of the position of responsibility that one holds. Power comes with responsibility and the positions taken up by these members within our profession comes with a responsibility to set boundaries when it comes to public commentary especially in light of the public eye and other victims.
For an accused person, the system is designed strictly to ensure their protection but in doing so it allows the possibility of injustice. While this is unavoidable in light of the inherent gaps of a system designed to avoid the persecution of an innocent person, we should not automatically presume that an alleged victim is lying. By doing so, we would be denying the practical reality that victims may be shortchanged in their pursuit of justice especially in cases where the sole word of the victim is often pitted against the word of the accused. This is especially true for cases of sexual harassment where the maligned act is often performed in a private setting devoid of witnesses.
We, therefore, reiterate here that the legal profession is not a profession that trivialises the complaints of alleged victims and is not a profession that believes in the rule-by-law. Rather, the legal profession understands the gaps and injustice that may exist within a system and recognises the need to further the rule of law to truly uphold the cause of justice.
As such, YLM, state wholeheartedly that:-
a. We reject the toxic culture that blames victims, trivializes sexual assault, publicly scrutinizes their clothing, line of profession, motives, mental state and sexual history, and denies their reality (gaslighting).
b. We recognize that there exists various forms of sexual harassment, sexual assault and rape, and believe that the Malaysian legal system only recognizes a narrow definition of each type of offence, e.g. that marital rape is not an offence.
c. We reject any attempts to downplay and diminish the experiences and trauma of survivors. We recognize that every survivor has their own way of coping with their past, and that their feelings are valid.
d. We recognize the real fears that survivors have and the various reasons for not speaking out at all, or speaking out much later in life. We recognize that the #metoo movement has provided many women and men with collective catharsis and healing.
e. We support women’s right to self-actualize and take ownership of their sexual freedom and recognise the need to balance it against the need to protect women who may be disenfranchised or disempowered due to class, ethnicity, sexuality, nationality, citizenship, ability, etc.
f. We recognize that men can be victims of abuse and sexual violence, and that the rates of suicide due to sexual violence is vastly greater among men than women.
We sincerely and truly believe that the legal fraternity has much room to improve in the way they respond to survivors of sexual and gender based violence, as well as sexual violence and abuse against men.
While we recognise that there are proper avenues for victims to air their grievances as often pointed out by many in response to online allegations of sexual harassment, it should be asked whether these avenues that are suggested are actually effective in achieving their purpose. We look no further than the Malaysian Bar’s own defective sexual harassment complaints mechanism which was introduced by the ‘Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace’ in 2007.It is appalling to note that after 14 years, the first complaint under the mechanism has recently revealed that there is a technical hurdle in dealing with complaints under the mechanism.
The Bar’s decision to only admit this legal defect after the issue was revealed to the press is disappointing. We call upon the Bar to prioritise making the necessary amendments to correct the legal defect to ensure that the mechanism is workable and that the injustice and inconvenience caused to a complainant is never repeated. There needs to be a greater appetite for change and action. While we recognise the tireless efforts of many stakeholders (particularly NGOs) in effecting change which come from even within the legal profession, YLM believes that change must come soon especially in light of recent allegations surfacing from within the legal profession.
We recognise a need for more proactive measures that may be supported by the Malaysian Bar such as through the organisation of annual workshops on “Boundaries & Consent” that may be voluntarily endorsed or hosted by law firms. These sessions should be designed by personnel experienced in dealing with sexual harassment and should be aimed at informing participants about personal and professional boundaries in the workplace as well as the steps that can be taken by a victim should a violation of these boundaries occur. The workshop should also arm young lawyers with the knowledge and skills needed to recognise tell-tale signs of sexual harassment involving their colleagues and how to respond to such a situation. These workshops should be facilitated by fellow lawyers who are trained by experienced civil society members and may also be made a mandatory session during the course of pupillage. It is also important for these sessions to address toxic ideas of masculinity and dating that often lead to aggressive and unwanted sexual advances.
The creation of a victim support group independent of the Bar with ground rules on confidentiality and no-naming would also be a step forward in providing a safe space for victims who in their times of need require assistance and support that may not otherwise be available. Participants in these support groups may share experiences in navigating a system that may often relive incidents of trauma.
Having a designated senior officer present at Bar social events tasked with keeping an eye out on incidents of sexual violence or unwanted sexual behaviour is also a much needed step forward. These officers on duty should be identified at the start of each social event and be provided with a standard emergency number.
Confidential sexual harassment questionnaires can also be sent to members of the Bar from time to time to encourage engagement and help in the identification of victims potentially suffering in silence. Annual circulars containing information about sexual harassment should also be circulated amongst members of the Bar. Sexual harassment is an issue that must be actively addressed and we believe that the right education and support will shift the archaic and traditional paradigm and norms we have about sex, relationship and bodily autonomy.
We call for the Malaysian Bar to continue to push, without fear or favour, the commitments made in the Press Release dated 16th June 2020, ‘High Time for Legal and Social Reform and the Enactment of Sexual Harassment Legislation, as part of its social responsibility in ensuring that survivors of sexual harassment, past, present and future, have greater access to legal recourse.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.