[Case 2] Q&A and discussion with co-op volunteers

Subject: a self-run non-profit community

How: A self-running non-profit organisation found us to seek some suggestions on how to better formulate an effective anti-sexual harassment institution in their community. We thereby gave them some suggestions. If we faced some issues uncertain of the solutions, we asked the NGO, EnGender, for professional support.

Q:

One of the difficult problems we are facing is the definition of sexual harassment, the selection of members, and the follow-up disciplinary measures. For example, for some definitions that some people insist on using, other people think it is too broad to consider cognitive bias or alcohol influence. Also, the acclaimed victim and the accused suspect would tell different stories, and they will argue for a long time. As for disciplinary measures, some people think it is necessary to make the punishments public. Some people think it is illegal to infringe on people's rights of reputations. I would like to know how you will handle these problems.

A:

I think we need a consensus on the definition of sexual harassment. We have discussed with an NGO about this issue. There are generally two ways to define sexual harassment. The first is "against one's will/lack of effective consent/feeling uncomfortable" (there are some differences between the three, but I classify them as distinct from the latter), and the second is "unwelcome". Of course, another factor that must be satisfied is "of a sexual nature". We think that the difference between these two types of definitions is different things being emphasised. Using the first definition, the investigation committee will focus on the evidence of the victim denying, or the action of the accused that disobeys the will of the acclaimed victim. In most cases, these are the subjective feelings of victims, so it will be very difficult to collect this evidence. Using the second definition, however, the committee needs to find out whether a behaviour itself is unwelcome. Therefore, in terms of collecting evidence, the first definition focuses more on subjective feelings, whereas the second definition stresses more on the nature of the action itself.

There is a legal case to highlight this difference. Basically, a boss of a female employee took off his clothes and danced at a company party. In Chinese civil law, the definition of sexual harassment is actions that are "against one's will." After the case was brought to court, the court decided that there was a lack of evidence to show that the female employee is "uncomfortable." However, if we use the definition of "unwelcomed behaviour", and apply the "reasonable person standard" to judge whether "dressing and dancing in public without clothes" is sexual harassment, it seems that it is easier to judge.

Therefore, the difference between the two definitions is: one is based on the existing, subjective feelings of individuals; for the other one, while it seems that "unwelcomed behaviours" is a subjective evaluation, in fact, it encourages the committee to judge the behaviour itself objectively.

These two definitions also have different impacts on the reporters. The first definition seems to be giving more psychological pressure on the reporters because they are encouraged to constantly ask themselves "is the action actually against my will or makes me feel uncomfortable?" This judgement of his/her own will is not that easy. On the contrary, for the second definition, the threshold for the parties to report cases is actually lowered a lot. The actual burden (that is, the burden of judging whether a case is a sexual harassment) is transferred from the reporters to the investigators. Since our toolkit was originally used for sexual harassment on campus, we would like to receive at least more reports to better understand the difficult situations faced by the victims to improve the campus environment. Therefore, we recommend using "unwelcome" as the definition in our toolkit.

We think that the "unwelcomed behaviours" standard can be used as a “bottom-line concept”. It can be used to encourage a relatively large number of reports so that the committee can judge whether it is sexual harassment. This is also because the purpose of establishing an anti-sexual harassment system on campus is not simply punishment, but educative; We hope that even though sometimes the case proposed by the reporter may not be sexual harassment, as the reporter feels that "this behaviour may be unwelcome", we and the teacher can further communicate with both sides to find problems and improve the campus environment.

Yet, considering that your community is not a school, you can probably reconsider which of the previous two definitions fits your community more.

However, I suggest that when this mechanism is set up, there needs to be an official document, including the definition of sexual harassment and some common classifications. You can also refer to the "Definition" section of our toolkit. Our contents referenced some anti-sexual harassment mechanisms of universities in the United Kingdom and the United States, you can also read it and revise it as needed. I think having an official document that everyone agrees on will serve as a guideline when there is disagreement.

Also, whether the victim and the suspect can be allowed to meet, I think it is also up for discussion. In the school's system, we will suggest that unless the actor and the party both agree that it is necessary, or else the two parties should not meet to argue, otherwise it will not only be very confusing but may also lead to secondary harm.

As for this, I feel that there needs to be a written/unanimously agreed upon procedure when the mechanism is being established. If it is in the school, we will definitely not disclose the name of any party involved. As for behaviour, we are still discussing it with the teacher. I think in the 706 scenarios, we can reach a mutually agreed upon solution (for example, if the acclaimed victims agree, then we disclose the actor, and if they disagree, we disclose only the action), there will be no disputes when private messages are made. However, I don't think the acclaimed victims and bystanders can be disclosed, otherwise, it may lead to retaliation.

However, how to implement it may still depend on the specific needs of your community, so what I said may not be applicable, you may still need to evaluate it according to your understanding of your community!

Hope what I said helped you! If you have any questions, feel free to ask me!

Finally, there is no mechanism for appealing to the actor in our toolkit yet. Some friends contacted us in a private message on WeChat. I think this is a good point. You could consider it.

Q:

Thank you for your patient reply, I need some time to think over it. I will contact you if I have any further questions! Thanks again for your patient reply!

[Case 3] Contextualising the toolkit for co-op volunteers

Subject: volunteers from universities and aspiring lawyers

How: Understanding that our toolkit is tailored to middle and high school, we discussed with volunteers from universities and interested lawyers ways to change our toolkit into an official document to be used in colleges and submitted to the government as a proposal. We also decided to send a request for information disclosure regarding existing anti-sexual harassment mechanisms in Chinese universities. This is because the Chinese Educational Bureau has officially published documents to require every university to have their own way of handling sexual harassment. The information disclosure may be used as a way to negotiate with the school to adopt our policy.

The first draft of the official document can be found here:

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