SEXUAL HARASSMENT BY TEACHER

Published By The Daily Star on June 01, 2012 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
One of my closest younger cousins was molested by one of her teachers and the man has been teasing her about various sexual matters. I was wondering if such molestations and teasing acts fall within any of the laws in Bangladesh and whether there is any redress that can be sought at all. Further I wish to know what protection my cousin would get under the law if she wishes to pursue the case because she is only 13 years old.

Nusrat Tamanna
Rangpur

Response
Thank you very much for your query. I understand that your cousin is a 13 years old girl and has been sexually molested by her teacher. It is a matter of serious concern that such sexual harassment has been increased in the recent past. But, it also gives us some hope that people are taking it very seriously and many victims are now coming forward to protest against and even to prosecute the offenders. The government and the general people have taken such matters with utmost importance. Despite the same, unfortunate incidents like your cousin’s continue to take place. We all need to be very vigilant, vocal, active and be resistant against any such activity. Sexual molestations and teasing of child certainly constitute offences under the laws of Bangladesh and are considered as heinous crimes socially.

Under section 354 of the Penal Code 1860, a person who assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punishable with maximum two years imprisonment and/or fine.

Note that the term ‘woman’ has been defined by the Penal Code 1860 in Section 10 as denoting “a female human being of any age”. Therefore, your sister will very well be covered by this section and so can seek redress under the same.

Note also that criminal force is defined in the Penal Code to include the use of such force that will cause injury, fear or annoyance to the person to whom the force is used. Such using of force can be done with intention or even with the knowledge that the use of force is likely to be cause of injury, fear or annoyance to the victim.

So, for example, if someone intentionally pulls up a woman’s veil, s/he has intentionally used force to her, and if s/he does so without her consent intending or knowing it to be likely that he may thereby injure, frighten or annoy her, s/he has used criminal force to her.

Moreover, assault is defined to include making any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. Note, however, that mere words do not constitute an assault, unless the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Note further that what constitutes an outrage to female modesty has not been defined. This will differ according to the country and the race to which the woman belongs. It is highly likely that considering her age and Bangladeshi culture, the judge will find the molestations and teasing as capable of outraging female modesty.

As for the teasing as well as the molestations, redress can be sought under Section 509 of the Penal Code 1860. Under this section an action can be brought against a person who, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.

Note that while the scope of this section is really wide and it covers many situations under which teasing and any kind of act constituting sexual molestation may very easily fall, the punishment available is simple imprisonment up to one year and/or fine.

Note that the word “modesty” does not lead only to the contemplation of sexual relationship of an indecent character. So for example, if a group of young men is following a group of young girls with indecent gestures and words, this can insult the modesty of woman and hence constitute this offence.

The scope of this offence is wide and any kind of gestures or words that the teacher may have used to molest your cousin or tease her can fall within the ambit of this section.

More to this, Section 10 of the Nari O Shishu Nirjatan Daman (Amendment) Ain 2003 offers redress in this regard. It provides that if any person with a view to illegally satisfying his sexual lust by any of his organ or matter touches genital organ or any part of body of a woman or child or violates her modesty such act of that person shall constitute offence of sexual oppression and he shall be liable to rigorous imprisonment for a term not exceeding ten years but not less than three years and shall also be liable to fine.

This is a very helpful section as it covers touching any part of the body or even violating modesty of a woman without touching her. If convicted, it ensures that the accused shall be imprisoned for a term not less than three years and up to as long as ten years. Notwithstanding the length of such imprisonment, he shall also be liable to pay fine.

It is worth noting that another advantage of availing redress under the Nari O Shishu Nirjatan Daman (Amendment) Ain 2003 is that the offence under this Act shall be exclusively triable by Nari-o-Shishu Nirjatan Daman Tribunal. This spares you from having to go to busy courts, and ensures accuracy in procedures and justice as these Tribunals exclusively deal with these kinds of issues. It also has the potential to provide speedy resolutions, as there is also a provision under Section 20 of the said Act that the Tribunal shall complete the trial within 180 (one hundred and eighty) days from the date of the receipt of the case. Under section 28 of the said Act, there shall be a tribunal in each district headquarter for the trial of offences under this Act. I understand that you are writing from Rangpur and if your cousin resides in Rangpur as well then you should be informed that there is a Nari-O-Shishu Nirjatan Daman Tribunal in Rangpur. As per the said Act, the tribunal shall take and consider the opinion of any woman or child as to securing their welfare and interest while passing order for keeping in safe custody. Furthermore, the Act prohibits the news media to publish the identity of the child victim.

Some other penal provisions may also be attracted based on the actual conduct don’t by the instant accused.

I hope that you find the aforesaid opinion helpful and get a redress for your cousin accordingly.

For detailed query contact: omar@legalcounselbd.com.