Chinese Version: 性骚扰的定义之争议
This section is primarily for the education of committee members and other interested individuals. It deals with the fundamental debate of sexual harassment. This section comprises of four subsections. The following diagram will present a clear summary of their relationships.
To explain in simple terms, sexual misconduct is an umbrella term that encompasses sexual harassment and sexual assault. All three terms describe behaviors of a sexual nature that causes some form of harm, while gender-based harassment is verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile conduct based on sex, sex-stereotyping, sexual orientation or gender identity, but not involving the conduct of a sexual nature.
Now that we have clarified the broader terms and their relationships, it’s important that we dig deeper into ‘sexual harassment’ itself. Basically, for an action to qualify as sexual harassment, it has to be 1) of a sexual nature, as established above and 2) be an unwelcome action that causes harm. The latter needs to be further clarified. Normally when we talk about crimes such as rape, we use the term “against one’s will.” The following is a table detailing the differences between the two.
| Against One’s Will | Unwelcome |
|---|---|
| Based on personal subjective feeling | Based on action committed |
| Require clear sign of resistance on the victim’s part |
Using unwelcome as a criteria has several advantages over “against one’s will” in this case. Besides it not relying on the victim resisting which may not be easily proved, it also acts as an overarching idea that allows for broader interpretation as well as relieving the burden off of both parties and instead allowing the committee to carry the burden of interpretation.
As detailed in the table before, one of the advantages of using ‘unwelcome’ is that it allows the reasonable person standard to be used instead of the rational person standard. The reasonable person standard hypothesize that if we let 1000 reasonable people to determine whether there was wrongdoing, they can all, at lest to a satisfactory degree, reach a verdict. Compared with the rational person standard, it has a lower burden of proof - the victim no longer has to prove to 100% certainty that this is sexual harassment. This also allowed the daily social experiences to be taken into account, thus avoiding cases where background information like extenuating circumstances are not taken into account.