27/01/2021

"Natural law" and sexual harassment

3 min
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There are things that the judicial process cannot solve. It is an extraordinary, very old mechanism for resolving conflicts. We do not know how or when it began, but one day a group of humans decided that the best way to resolve a conflict was not to fight to see who was stronger, but that a third party outside the conflict would decide who was right. They broke natural law. No longer would the most powerful win, but those whom the judges saw as a "better person" according to sociological parameters of behaviour that vary in each human group. In any case, at the historical moment when this natural law was broken for the first time, what we call justice was born. It is paradoxical.

It is a model of success. It exists in one form or another in the vast majority of the world's cultures in often surprising ways. Some still retain remnants of the ancient use of force and hold ceremonies - often trials - to check relatively peacefully who is the strongest. Most are classed as ordeals, a word of Germanic origin meaning "judgement", but in reality they delegate to a deity the decision about the conflict. The opposing parties are subjected to a test of physical resistance, and the one who wins was helped by a god. This is another example of how human beings often try to escape their responsibilities when complexities arise, and just look for a way to turn the page and forget about it.

A victim of sexual aggression

But as I said at the beginning, there are conflicts that the judicial process cannot solve. Resorting to the law or to a religion - religion is another way of making law - cannot do that either. Laws try to guide behaviour and, therefore, avoid conflicts, but they do not always arrive on time or in the right way. There are some human behaviours that are still well seen, or at least tolerated as inevitable by a part of the population that feel power and pleasure in them, and therefore carry them out. One of the most prominent is sexual harassment, in any area but particularly in the work environment. It may be the boss or it may be a colleague, but it always subjects the victim to a nightmare.

The sequence of events is almost always uniform, with accidental variations. The future aggressor approaches the victim through cordiality. This stage may last for a while, but when the victim finally refuses more explicitly, the violence of harassment begins. Sometimes the aggressor approaches the victim with caresses, and in some cases it even ends with a real sexual assault.

What is the difficulty of the judicial process? That to find someone guilty requires proof, because this someone, of course, is protected by the presumption of innocence. Otherwise, any human being, man or woman, could receive a false accusation from which they could not defend themselves. It is not at all easy to prove that what has never existed has not happened, as is evident.

But in these cases it is also not easy to prove that the harassment has occurred, because it is usually clandestine. Sometimes there are messages or recordings from a security camera. Reliable witnesses are usually not available, I insist, because of the clandestine nature of the behaviour.

We have been raising society's awareness in this regard for many years now. Sometimes we have gone so far as to propose the abolition of the presumption of innocence, which is not acceptable because it would create even more serious problems. The problem, as I said, is that the eradication of these repugnant behaviours is not in the judicial process, but in society. It was not a judicial process that brought workers' rights to the workplace, but a great deal of mobilisation and collective suffering that has not yet ended and that always threatens to return.

These behaviours will only end when particularly men, among themselves, do not laugh at any sexist behaviour, but rather rebuke it. When society does not attribute to men the role of force and to women that of sensitivity; this false law of nature. When in any human relationship, including sexual ones, there is not a distribution of attitudes according to sex, but an absolutely equal and, in fact, indifferent attribution of roles.

Crimes must be reported and punished. But if they are to be stopped, it is the causes that must be attacked.

Jordi Nieva-Fenoll is Professor of Procedural Law at the University of Barcelona.

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