TYPICALLY, an incident of workplace sexual harassment might go something like this. A woman likes her job except for one thing -- unwanted lewd attention from a male associate or superior. He regularly makes lascivious comments and suggestions, asks for a date, tries to hug, kiss and touch her, etc. When she tells him to knock it off, he won't. When she complains to management, nobody cares or does anything to stop him. Stop putting
harassment victims on trialThis female has three choices. She can withstand the unwanted attention, quit (even though it may be difficult to find another job) or sue.
More and more, the woman is standing up for her rights and choosing the latter, because she won't accept the inequity of it all. Why must she be the one to leave the company, while the culprit gets to stay? Why give him the permission and opportunity to assail some other unwilling subject in the future?
Unfortunately, the scales of justice in Hawaii's state courts aren't exactly balanced, especially when it comes to victims of sexual harassment. A plaintiff soon learns that, on going the litigation route, she is often the one who ends up on trial.
"One of the defenses usually used against a victim of sexual harassment by the employer is trying to prove that she 'welcomed' the advances of the perpetrator, that she 'wanted' it," says Honolulu attorney Elizabeth Jubin Fujiwara. "In order to establish this, the employer's attorney will invade her privacy by asking her, her neighbors and her family about her past sexual history."
Her past sexual history? Hey, she's not the one charged with a crime.
Note how this convoluted rationalization, in theory, is supposed to work: If a woman has had a boyfriend or many boyfriends, has dressed or acted in a certain way, and/or in essence hasn't been a celibate nun, then she certainly must have wanted sexual attention lavished on her in any office setting.
In legal circles, it's called the slut defense. It's the pinnacle of victim-bashing, sexism at its finest. And, unfortunately, it's all too common.
That's why Fujiwara, the national chairwoman of the American Trial Lawyers Association-Employment Section, is lobbying the Legislature to pass SB 2323. This bill would lead to the state courts recognizing Rule 412, the Rape Shield Law, which is already being observed by Hawaii's federal courts.
"A victim's general character and past behavior clouds the issue of the behavior of the harasser," Fujiwara points out. "Consequently, irrelevant information as to the plaintiff's sexual history and conduct outside the workplace should not be used against her by the harasser and his attorneys."
IT'S already hard enough for someone who has been sexually harassed, assaulted or raped to come forward and face her assailant. Why does the legal system make it so easy to turn the tables on the complainant, and to slam her and her past behavior, instead of shining the spotlight on the one who allegedly broke the law?
The Legislature can calibrate the scales of justice and make them even -- or at least not tip them in favor of the one abusing the power and authority in the workplace -- by passing SB 2323.
If it does, a typical case of sexual harassment in Hawaii might go like this: Woman gets harassed. He won't stop. She sues. In court, it's her word and her evidence against his. And never mind whom she slept with years ago, because she's not the defendant. He is.