Opinionista Jameelah Omar 3 December 2018

Inquiries into allegations of sexual harassment – the lost opportunity for structural change

In reality, we know that the criminal justice system is not liberating for a complainant and rarely provides the opportunity for healing. Women complainants in particular are subjected to harsh cross-examination designed to undermine their credibility.

The various allegations of sexual harassment that have come to light recently in the social justice sector have triggered a number of inquiries. The most recent of which is the independent inquiry into allegations of sexual harassment against one of the co-founders of Equal Education. The current relevance of this inquiry together with the near-perpetual revolving door of state-funded commissions of inquiry, brings to the fore some of the shortcomings of our understanding of the real purpose of inquiries.

In the popular TV series Law and Order, the character Olivia Benson, a Lieutenant in the Special Victims Unit (SVU), is often portrayed trying to convince sexual violence complainants that proceeding with a criminal complaint will bring them closure. Moreover, that the SVU and the prosecutor will protect them during the process. Being TV, these complainants often do report that the experience was cathartic.

In reality, we know that the criminal justice system is not liberating for a complainant and rarely provides the opportunity for healing. Women complainants in particular, are subjected to harsh cross-examination designed to undermine their credibility and often face humiliation and anger from others.

It is not surprising to me – and probably not to any person who works in the violence against women space – that there are sound and understandable reasons not to want to come forward with a sexual harassment or a sexual offence complaint. The recently publicised Omotoso trial and the Brett Kavanagh inquiry in the United States give visceral evidence to just how little it benefits women to report.

South Africa’s adversarial criminal trials do not leave much room for truth-seeking outside of formal legal evidence testing through expert reports and cross-examination. Criminal trials are intended to decide on the factual and legal guilt of a person in light of how the evidence before a court can be weighed up. The court pronounces on this guilt without being able to analyse in-depth broader contextual and structural issues, unless those relate to a legal defence.

But we have imagined a process that can consider broader societal issues – at least, that is what I think we have tried to create with commissions of inquiry. Yet if we look at other notable inquiries in the past few years, such as the Marikana Commission of Inquiry, we see the adversarial trial model replicated in the Commission, with every party represented by attorneys and several advocates, who play the same role of evidence presenting and challenging that they would in a court of law.

The first report by Judge Satchwell and Professor Langa (the Report) provides insight into the scope and purpose of these types of inquiry and the potential success of them. The third panel member, Professor Rashida Manjoo, has not submitted her report. The analysis in this article therefore focuses on the issues discussed in the Report.

The Terms of Reference (ToR) of the Equal Education inquiry had several aspects, including ‘[t]o investigate any allegations of sexual harassment and similar misconduct under the Constitution, Disciplinary Code, the Manual, and any other applicable policy or instrument of EE’ (12.1 of the ToR); and to investigate whether there was silencing or intimidation of any complainants (12.1.3. of the ToR).

To investigate” is not unusual in an inquiry, however, there is some vagueness as to what it requires an inquiry panel to do. The purpose of an independent inquiry is to allow a wide scope and creative processes to uncover pervasive, rather than individual, issues. The primary purpose of an inquiry of this nature, is to make recommendations on how to rectify any systemic issues that may have permitted the damaging conduct to take place.

For the purposes of the Equal Education context, this would be the complaints of sexual harassment, but also the culture of power, victimisation and silence that has allowed these issues to fester in the social justice sector.

During the Marikana Commission, phase two of the Commission was meant to focus on underlying issues, such as housing and other living conditions. Many of us in the social justice sector were hoping that these socio-economic issues would come to the fore in the national analysis of why the Marikana massacre occurred. Phase one took so long, that phase two sadly didn’t get much time or attention. Very little structural change has been effected in Marikana since the Commission ended, other than through civil society initiatives.

It is therefore a pity that the ToR in the Equal Education inquiry were drafted in a largely formal legalistic way, without elaborating fully on the need to evaluate the context of sexual harassment and imbalances of power. It is moreover a greater pity, that on a close reading of the Report, the panel appears to restrict itself to specific allegations rather than institutional culture within the broader patriarchal context of South African society.

The Report’s over-emphasis of the inability of the persons accused to “test evidence” because of the anonymity of the complainant statements misses the fundamental point that an inquiry is intended to be a preliminary process in which information is gathered to establish what happened, why it happened and what can be changed to prevent it from happening again.

I agree with the Report that an inquiry should not be a criminal trial, thus pronouncements of guilt (or not) are not likely to be appropriate (para 13 of the Report). The focus should be whether there are adequate grounds to refer the matter to another appropriate tribunal, such as a disciplinary process or even the instituting of a criminal complaint. It is strange then that the Report goes on to ‘exonerate’ those accused of the allegations. By the Report’s own acknowledgement, the panel had insufficient information at its disposal to make a clear finding. Unlike a criminal trial, there is no automatic verdict of not guilty if the prosecution does not prove its case beyond a reasonable doubt.

An inquiry can allow for relaxed rules of engagement between the parties, creative methods to allow testimonies and a more inquisitorial role by the panel. It is frustrating that many inquiries do not ‘think outside the box’ and replicate standard trial procedures. This is perhaps not surprising when inquiries are implemented by lawyers and judges, who will almost always fall back on their adversarial training. The panel is to be commended for trying to implement victim-friendly ways of testifying for the complainants. The Report’s failure is to take adequate cognisance of the reluctance by complainants to testify even through those methods – a fact that says a lot about the fear of coming forward.

Inquiries should allow organisations (or the state) to introspect on its own failures and to assist with developing better processes, best practices and cultures to prevent the perpetuation of harmful conduct. The Report failed to make recommendations to Equal Education that can be learned from and implemented widely. A valuable opportunity was missed to turn the conversation towards structural and systemic changes that can be made. We must push for deeper analysis if we want to see real change in how sexual harassment is handled, both through our legal processes and in broader society. DM

Jameelah Omar is Lecturer in Criminal Justice, Department of Public Law, UCT

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