What recourse do students have when they are sexually harassed in schools?

Jurisprudence, or better yet legislative action akin to Workplace Harassment Act, needs to be implemented in schools.
Published May 18, 2018

Last week, numerous female students in Karachi spoke out on social media against sexual harassment and inappropriate behaviour that they have had to face in schools at the hands of their peers, teachers and administrators.

The wave of first-hand testimonies seemed to crystallise into a demand by the students to have proper sexual harassment policies in schools.

This would be an opportune moment to look at the laws that exist in the country in this regard, where they fall short, and what can be done to plug the gaps.

Subjecting children to adult ordeals

There are various federal and provincial laws in Pakistan to promote children's well being, but legislation to protect children from sexual abuse in schools is lacking.

Currently, a child who has been a victim of sexual harassment or molestation at school by a peer or by their teacher or caretaker only has recourse to generic provisions of criminal law against the direct perpetrator of such an act.

The Pakistan Penal Code (PPC) applies to the entire country and it addresses sexual harassment in a broader spectrum. Section 509 of the PPC criminalises sexual harassment and sexual advances by any person against a victim, independent of setting.

Recently, through the Criminal Law (Second Amendment) Act of 2016, Section 377-A of the PPC was inserted to criminalise sexual abuse on persons less than 18 years of age.

Therefore, whenever a child suffers sexual abuse in the confines of their school, they have no choice but to file a claim directly against the accused under the provisions of criminal law and procedure.

Related: Sexual harassment: Pakistan's tipping point?

Never mind the emotional trauma underlying reporting such a claim, a child (through a representative) would have to lodge an FIR under the applicable provision of the PPC and/or provincial law on sexual abuse at the police station in order to charge the accused.

Additionally, the child would ordinarily record their statement under Section 164 of the Criminal Procedure Code.

The FIR would have to be promptly lodged without delay, otherwise the case would be prejudiced.

Furthermore, documentary and/or ocular evidence would generally be required to validate the contents of the claim.

This would be followed by a full-fledged trial, in which evidence would be recorded, witnesses and experts would be called upon and cross-examined to verify the contents of the claims.

The victims, through the trial, would essentially undergo the ordeal of suffering losing their privacy, having their credibility challenged and potentially become targets of abuse and stigmatisation.

All the while, the one party who in theory should be most responsible for ensuring the child's safety is spared by the operations of the aforementioned laws: the child’s school and its administration.

Unprotected children

There is no particular provision of law that criminalises neglect or oversight by caretakers in sexual harassment against children.

At best, a school may be culpable under Section 328-A of the PPC (also recently inserted by the legislature), whereby whoever does an act of omission that has the potential to harm the child by causing physical or psychological injury may be punished with imprisonment of up to one year.

However, the evidentiary requirements would be the same as above, and the victim would have to undergo the torment of criminal proceedings and trial to substantiate their claims.

Civil remedies against a school for negligence can range from filing a claim for negligent hiring or vicarious liability. Such civil causes of actions are rarely filed.

Schools are workplaces too

The one legislative instrument that keeps in view the ground realities of reporting sexual harassment and accommodates victims is the Protection Against Harassment of Women at the Workplace Act of 2010 (Workplace Harassment Act).

The Workplace Harassment Act specifically addresses the issue of women (and men) in the workplace facing harassment in an abusive working environment.

Section 2(h) of the Act defines harassment as "any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature."

The Act provides a comprehensive system on how workplace harassment should be reported and dealt with internally by an organisation. "Organisation" includes educational institutes such as schools.

Every organisation within the ambit of the Act is required to form an internal committee to review and adjudicate complaints of harassment by an employer and/or employee against an employee.

Read next: Special report: Sexual harassment in workplaces in Pakistan

The Act goes a long way in shielding victims from the mental turmoil of providing detailed proof by shifting the evidentiary burden of ascertaining the facts upon the Inquiry Committee and the accused instead of the victim.

The Act empowers victims with the tools to confront the offender and provides a level playing field, unlike the marred criminal trial proceedings under the Criminal Procedure Code and the Evidence Act.

Sexual harassment in the workplace, however, is not confined to the world of adults. Children also experience harassment and abuse in their workplace: their schools.

Unfortunately, the Workplace Harassment Act does not extend its procedural cover to children at schools.

Without statutory law regulating schools in this regard, the current model of schools acting on their own whims provides aesthetic relief at best.

This gives a false sense of improvement and is largely unenforceable, thereby not making a classroom a more secure place for children.

Need of the hour

In Franklin v. Gwinnett County Public Schools, the United States Supreme Court held that a student deserves protection from sexual harassment by a teacher just as an employee does from harassment by a supervisor.

Public school students in the US who are sexually abused by school persons have the option of bringing a claim of sexual harassment under statutes normally reserved for workplace harassment against employees.

Jurisprudence, or better yet legislative action akin to the Workplace Harassment Act, needs to be implemented in schools.

This would not only combat harassment against children in educational institutions, but also protect children from the stigma of going through a full-fledged trial proceeding, which often due to socio-economic, legal and cultural factors ends up empowering the status quo instead of providing justice.

A central purpose of law is to protect the weak from the strong. Unfortunately, we have neglected the weakest class — children — in their most vulnerable setting: school.

Graphics by Zoha Bundally

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