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By Zimbabwe Lawyers for Human Rights – Legal Monitor
What is sexual harassment?
Sexual harassment includes unwelcome sexual advances, requests for sexual favours, and other verbal or physical harassment of a sexual nature in the workplace or learning environment that is harmful to the victim. International instruments define sexual harassment as a form of discrimination and violence against women.
In Zimbabwe, section 8(h) of the Labour Act [Chapter 28:01] defines sexual harassment as ‘unwelcome sexually-determined behavior towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.’
There is no legislation addressing sexual harassment in institutions of higher learning in Zimbabwe. In other jurisdictions like the USA, sexual harassment in places of higher learning is defined as ‘unwelcome behavior of a sexual nature that interferes with a student’s ability to learn, study, work or participate in school activities.’
What behaviour constitutes sexual harassment?
Sexual harassment can cover a wide range of conduct, but broadly the behaviour must be:
- Sexual in nature. It may include jokes, innuendos, flirting, forced fondling, and attempted or actual rape.
- Deliberate and repetitive. However, it does not have to be more than once, as even the first attempt may be inappropriate and unlawful.
- Unwelcome by the victim. This is determined by the victim’s indication that the behavior is As such it is subjective and not objective.
Conduct amounting to sexual harassment may include unwanted verbal or physical sexual advances, sexually derogatory statements, or sexually discriminatory remarks which are offensive or objectionable. This can include verbal sexual suggestions or jokes, constant leering or ogling, brushing one against another’s body, a pat, squeeze or pinch around the arm or any part of the body, a quick kiss, cyberbullying, whistles about body and dressing, romantic attention, explicit proposing followed by an explicit threat that the student will fail, and forced sexual relations, amongst others. Sexual harassment could also include sexual favors in exchange for good grades, or preferential treatment.
Sexual harassment in institutions of higher learning
For a long time, sexual harassment was only associated with the workplace and was ignored in learning institutions. However, a recent report on The Prevalence of Sexual Harassment in Higher and Tertiary Education Institutions by the Joint Portfolio Committee on Higher and Tertiary Education, Innovation and Technology Development and Women Affairs, Community and Small to Medium Enterprise Development in February 2022, has brought the issue to the fore and established that sexual harassment in institutions of higher learning has become prevalent.
Factors contributing towards sexual harassment in institutions of higher learning
- Lack of policies or codes of conduct on sexual harassment. Without a policy, code or law, there is nothing to regulate people’s conduct. In institutions where policies and codes of conduct addressing sexual harassment are available, they are often not well disseminated or explained to students and staff. It is often not clear what the procedure for reporting a perpetrator There is no national policy on sexual harassment in institutions of higher learning which determine these frameworks.
- Harsh economic conditions. According to the Joint Portfolio Committee report, female students are more likely to be subjected to and submit to harassment in exchange for financial support from lecturers. Students also submit to it in desperation to get higher marks and advance themselves.
- Misunderstanding of consent. Lecturers often view students as consenting adults hence they persist with their conduct, without taking account of the imbalanced power dynamics at play.
- Fear of victimisation. Students do not often report sexual harassment for fear of being victimised and stigmatised. The people responsible for receiving reports of sexual harassment are often the same people who are harassing students. Patriarchal culture also often means nothing meaningful is done to the
- Lack of reporting. It is difficult to get evidence of patterns of sexual harassment and institute institutional reform measures because most victims are afraid to report it.
Why sexual harassment must be addressed?
Sexual harassment has very negative impacts on victims, causing anxiety, depression, low self-esteem, and physical problems. It interferes with the victim’s work or academic performance as well as creates an intimidating, hostile, and offensive learning environment.
Available legal remedies for victims of sexual harassment
There is currently no specific law regulating sexual harassment in institutions of higher learning. Ideally, the law should identify the specific conduct that is prohibited and provide victim-oriented remedies. Policies can also prescribe remedies, however, most institutions do not have these. Even where policies and codes of conduct are available they do not necessarily award compensation or other reparations such as counselling services to victims.
Nonetheless, victims of sexual harassment in institutions of higher learning can:
- Report any acts of sexual harassment to the authorities and seek an investigation and disciplinary proceedings against perpetrators.
- Pursue a civil claim of damages in the courts against perpetrators and institutions, seeking financial compensation for the psychological or physical harm they have
- Approach a court for appropriate relief for a violation of their fundamental rights in terms of section 85 of the Constitution, such as their right: to equality and non-discrimination under section 56; for women to have full and equal dignity of the person with men under section 80; to human dignity under section 51; to personal security under section 52; and to privacy under section
Institutional and legal reform to address sexual harassment
In addition to individual remedies, the following reform measures would assist in curbing sexual harassment in institutions of higher learning:
- Enacting a law that prohibits sexual harassment at educational institutions and provides criminal sanctions.
- Development of a national policy on sexual harassment in institutions of higher learning. This policy will create a framework for all institutions. The policy must amongst other things: set out clear procedures for reporting; provide protection for victims who report retaliation by the perpetrator and provide clear disciplinary measures and penalties.
- Imposing a legal requirement that all institutions of higher education must have a sexual harassment policy that is consistent with the national policy.
- Dissemination of information and policies about sexual harassment including as part of induction processes, and during lessons.
