□ Zhao Chenxi, reporter of this newspaper
Recently, the alleged sexual harassment of a well-known male screenwriter by a number of women has attracted widespread attention, and the topic of sexual harassment has resurfaced and become the focus of public discussion.
"Sexual harassment is a long-standing problem that cannot be ignored." Lu Xiaoquan, executive director of Beijing Qianqian Law Firm, who has long been engaged in legal aid for women's rights and interests, pointed out in an interview with a reporter from Rule of Law Daily that at present, China's social system support resources for victims of sexual harassment have not been fully established, including the concept of gender equality and an effective legal system, so that many sexual harassment behaviors are hidden in daily life, especially in the workplace. Laws and regulations on sexual harassment should be continuously improved, so that victims have the courage to take up legal weapons to defend their rights at the first time.
Sexual harassment in the workplace is not uncommon
Whenever the news of alleged sexual harassment is brushed, the heart of 25-year-old Liu Li (pseudonym) will flutter inexplicably.
Six months ago, because of the problem of the rental period of the store, Liu Li, who has been doing self-employment, was introduced by someone and came to a media company as a front desk receptionist. Soon after joining the company, Liu Li was "hit" by a business manager of the company, and regularly asked her to make guest appearances as anchors and shoot some short videos of product promotion.
At first, Liu Li was still happy to receive an extra payment, but soon she found that the manager was becoming more and more "interested" in her personally, and spoke too "casually", and even once told an offensive "meat joke" while patting her on the back.
Because she had not been in the unit for a long time, and she was afraid that the manager had a certain "right to speak" in the unit, Liu Li did not dare to talk about it with other colleagues, but just found a reason to push off the shooting work assigned to her by the manager. But the manager still talks to her from time to time, and the chat content seems to her to be far more than the two are familiar with.
"This should be considered sexual harassment." This experience has become a knot in Liu Li's heart, and she can't imagine how many ordinary people have encountered or are suffering from similar troubles compared to more public figures who have attracted more attention.
"Liu Li's experience is typical of sexual harassment in the workplace." Lu Xiaoquan introduced that at present, there is no division of sexual harassment in China's law, and combined with the actual situation, sexual harassment can be divided into two types: sexual harassment in public places and sexual harassment in the workplace. Workplace sexual harassment can be further divided into exchange harassment and hostile environment harassment. The former mostly refers to the act of one party relying on its power to force the other party to provide sexual returns on the condition of agreeing to hire or promote, raise salary, etc. The latter refers to the fact that one party deliberately puts the other party in a coerced or rude and obscene work environment, and "meat jokes" in the office are typical manifestations.
The definition of sexual harassment remains to be refined
"Currently, there are three laws and regulations at the national level that specifically refer to sexual harassment." According to Lu Xiaoquan, Article 2012 of the Special Provisions on Labor Protection of Female Employees, which came into effect on April 4, 28, stipulates that employers shall prevent and stop sexual harassment of female employees in the workplace. Article 2021 of the Civil Code, which came into effect on January 1, 1, defines sexual harassment for the first time at the national legislative level, stipulating that if a person commits sexual harassment against the will of another person by means of words, words, images, physical behavior, etc., the victim has the right to request the perpetrator to bear civil liability in accordance with the law. Articles 2023, 1 and 1 of the revised Law on the Protection of Women's Rights and Interests, which came into effect on January <>, <>, all contain provisions related to sexual harassment, of which Article <> draws on the content of Article <> of the Civil Code, changing "against the will of others" to "against the will of women", which prohibits sexual harassment of women against their will by means of words, words, images, physical behavior, etc.
However, in Lu Xiaoquan's view, the above legal provisions do not really effectively solve the problem of defining sexual harassment. For a long time, China's legislation on the prevention and treatment of sexual harassment has been relatively lagging behind, and the practical level of operation is not very targeted.
Ding Yaqing, a lawyer at Guangdong Zhiheng Law Firm, agrees that most of the current laws in China are general provisions on sexual harassment, such as stipulating that the methods of sexual harassment include speech, words, images, physical behavior, etc., but do not elaborate on this, to what extent language and physical behavior are considered sexual harassment.
"How to define sexual harassment is the core issue that sexual harassment prevention legislation must address." Lu Xiaoquan believes that the definition of sexual harassment needs to include at least three core elements: first, against the will of the victim; Second, the behavior is related to sexual connotation or sexual content; Third, the subjective aspect should be based on the subjective will of the victim, without considering the subjective aims or intentions of the harasser.
On March 3 this year, the Ministry of Human Resources and Social Security and other six departments jointly issued the "System for Eliminating Sexual Harassment in the Workplace (Reference Text)" Article 8 defines sexual harassment, that is, the act of using words, expressions, actions, words, images, videos, voice, links or any other way to cause others discomfort related to sex against their will, regardless of whether the perpetrator has harassment or any other improper purpose or intent.
Lu Xiaoquan believes that this definition has strong pertinence and operability, and is also convenient for unifying the rules for judicial adjudication.
In this regard, Ding Yaqing has a different view. In her view, in cases of sexual harassment, the victim needs to be protected, but the determination of sexual harassment cannot be absolutely based on the complainant's feelings, but also takes into account the voice and objective circumstances of the complainant.
"The definition of sexual harassment is neither based on the feelings of the victim nor the subjective purpose of the perpetrator, but should be based on the norms of ordinary people's social behavior in the time and space environment in which the incident occurred." For example, according to an adult's understanding, behaviors such as licking ears and smelling hair clearly exceed the boundaries of communication between two ordinary people in daily social interaction, and should be defined as sexual harassment.
Social support systems need to be built
Liu Li once told her girlfriend about her experience, and her girlfriend advised her to call the police, but after thinking about it again, Liu Li still chose to be silent, she was afraid of losing this hard-won job, and she was afraid that she would have no substantive evidence.
In the sexual harassment cases that Lu Xiaoquan has come into contact with, there are not a few parties who choose to remain silent in the end, and the difficulty of defending rights is the crux of the problem.
"The premise and foundation of effective legal rights protection must be evidence." Lu Xiaoquan pointed out that the basic rules of evidence in civil litigation are who claims who presents evidence, but sexual harassment mostly occurs in private spaces, which is private and confidential, and difficulty in obtaining evidence is the biggest problem that objectively exists, especially in workplace sexual harassment in unequal power relations, the parties are generally on the weak side, and the ability to present evidence is weak, making it difficult for the parties to defend their rights without obtaining conclusive evidence.
"Consideration should be given to adopting special tort rules in light of the salient features of such cases, changing the current principle of who claims and who proves in the full sense." Lu Xiaoquan suggested adopting the principle of "presumption of fault" to reasonably distribute the burden of proof among the parties, such as applying the standard of evidence of preponderance in civil litigation, making judgments based on logical reasoning and rules of thumb, and shifting the burden of proof under certain circumstances, reflecting the spirit and purpose of legal fairness and justice.
Article 1010 of the Civil Code clarifies the responsibilities of "institutions, enterprises, schools and other units" in sexual harassment incidents. Lu Xiaoquan suggested that when encountering sexual harassment, the parties should record the time, place and course of sexual harassment, and if the other party commits sexual harassment multiple times, they can use audio and video recording tools to collect evidence when personal safety is determined, and promptly report to relevant units or institutions for help.
Zhang Jing, director of the marriage and family department of Beijing Lianggao Law Firm, added that if the incident occurs suddenly, the parties can describe the incident in the form of follow-up questions or dialogues afterwards, which is conducive to subsequent rights protection. In addition, Zhang Jing noted that many victims of sexual harassment are reluctant to defend their rights for fear of being stigmatized for defending their rights, and she believes that a good social support system and public opinion environment for sexual harassment and rights protection should be created to allow victims to have the courage to defend their rights.
"In a situation where social system support resources are relatively inadequate, victims of sexual harassment should respect the choices of their parties, whether they choose to remain silent or firmly defend their rights." In view of the fact that the current laws involving sexual harassment are relatively scattered, have few provisions, and are basically principled and advocacy provisions, and lack rigid legal liability provisions, Lu Xiaoquan suggested the introduction of a special legislation on the prevention and control of sexual harassment, which clearly stipulates the definition, type, constituent elements, prevention and control institutions, evidence and determination, distribution of burden of proof, relief measures, legal liability, etc., and forms a sound legal system design to escort victims of sexual harassment. (Source: Rule of Law Daily)