IN Malaysia, sexual assault, physical molestation, indecent exposure and rape are outlined in the Penal Code. Circulation and distribution of obscene literature, obscene public acts, singing obscene songs to annoy another, assaulting or using criminal force with the intention to outrage modesty, rape and committing unnatural acts against a person are serious crimes under the Penal Code.
Insulting the modesty of a person is also an actionable crime under the code.
The Federal Court of Malaysia in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor (2016) stated: “Sexual harassment is a very serious misconduct and whatever form it takes, cannot be tolerated by anyone.
“In whatever form it comes, it lowers the dignity of the person who is harassed, let alone affecting his or her mental and emotional wellbeing.
“Perpetrators, who go unpunished, will continue to intimidate, humiliate and traumatise victims thus resulting, at least, in an unhealthy working environment.”
A number of empirical studies have demonstrated that sexual assault has a tendency of causing long-term psychological disturbances to the victims.
Incidents of sexual assault contribute immensely to the low self-confidence and, more detrimentally, it affects the psychological wellbeing of the victims.
Hence, severe punishments are prescribed by law for sexual assault and harassment with a view to sending a clear message that offences of this nature would not be tolerated.
Despite the above, incidents of sexual assault and inappropriate behaviour at the workplace are on the rise and reported in the media. In the workplace, sexual assault and harassment are categorised as a major misconduct that could warrant instant dismissal, if found guilty.
The Employment Act makes it obligatory on the employer to attend to their employee’s complaints of sexual harassment committed either by a co-worker, client or customer of the employer.
An employer who fails to act on the complaint of sexual harassment promptly is deemed to have committed an offence and may be liable to a fine of up to RM10,000 , if found guilty.
Apart from initiating criminal proceedings against the harasser by lodging a police report for various sexual offences under the Penal Code, the victim could file a claim against the employer for constructive dismissal by resigning from employment due to the workplace being unsafe.
Additionally, a victim of sexual harassment may also initiate a tortious lawsuit against the harasser in the civil court for sexual assault or battery.
A sexual assault takes place when a person intentionally puts another person in fear of harm by threats, words or gestures of a sexual nature without bodily contact.
A sexual battery claim may apply if it involves physical touching of the private parts of another person.
Further, an emotional and psychological harm claim may also lie against the harasser when the sexual assault causes emotional distress to the victim.
Where the claim is well-founded, the court may award damages to the victim for the physical and emotional harm suffered.
The quantum, however, will depend on facts and nature of harm or injury suffered.
Where the victim is a customer or client of the company and where it is proven that the company had not taken measures to rectify or prevent the sexual assault, the customer or client may file a tortious claim, not only against the harasser, but also the company.
Civil claim against the company is founded on the basis of failure to use reasonable care to protect its customers or clients against foreseeable sexual assaults.
Before the company can be made vicariously liable as principal for any claim in tort, the employee who was responsible for the alleged tortious act must be made a party to the suit and his liability established.
Professor Datuk Seri Dr Ashgar Ali Ali Mohamed, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia