Justice Among Us:
Producing an Equilibrium of Interests
in Peer-to-Peer Sexual Harassment Proceedings
Within Educational and Training Institutions
Ruby Rosselle L. Tugade*
Athena Charanne R. Presto**
ABSTRACT
Peer-to-peer sexual harassment is a relatively new species of gender-based sexual harassment under Philippine law. Through the inclusion of punishable conduct of such nature in the Safe Spaces Act of 2019, Congress has recognized the need to update the definition of sexual harassment to cover acts committed between peers taking place in online and public spaces. Peer-to-peer sexual harassment still exists within asymmetrical and gendered power relations, albeit less overt in its manifestation. With a focus on peer-to-peer sexual harassment taking place in educational institutions, this Essay examines how the social policy behind the Safe Spaces Act is complicated by existing jurisprudence on due process rights, laws involving the privacy of the individual, and the rights of minors who may stand as accused. It anticipates the questions that may arise from the interaction between the policy considerations of the Safe Spaces Act and other rights and interests. Taking into account the cultural ethos which produced the necessity to update the law on sexual harassment, the Essay presents an interdisciplinary examination of anti-sexual harassment policy in academic institutions that considers broader legal and social implications.
INTRODUCTION: SAFE SPACES ACT AND THE
CHANGING FORMS OF SEXUAL HARASSMENT
The amplification of voices of victims of gender-based crimes in mainstream platforms surfaced a grim reality in our legal system—it had not fully caught up with the varying forms of sexual harassment as a crime. The different permutations of gender-based sexual harassment that went unpunished effectively exposed the gaps in legal remedies that were then available to victims. The enactment of Republic Act No. 11313 or the Safe Spaces Act of 2019 came at a time when a victim-focused broad cultural movement was taking place globally and domestically.
The Safe Spaces Act criminalizes various kinds of gender-based sexual harassment occurring in public spaces that were previously not contemplated by Philippine law. Under this legislation, a wide definition of public spaces where sexual harassment can occur is put into place.[1] Moreover, the Safe Spaces Act recognized the different social contexts where sexual harassment can happen, even outside a superior-subordinate relationship.
One such area where the Safe Spaces Act expands the coverage of criminal law on sexual harassment is that which takes place in educational institutions. Only relationships with overt moral ascendancy of the perpetrator on the victim were penalized under the old Anti Sexual Harassment Act of 1995 (ASH Law)[2]. Previously, sexual harassment among peers within the context of educational settings fell through the cracks. However, the reality is that acts of gender-based harassment can also occur outside the traditional hierarchy of power.
There is a need to ensure that public places such as educational institutions and the pockets of interactions arising from these environments remain safe and secure. As declared in the Safe Spaces Act, its main policy consideration is the State’s recognition of the dignity of every human person and fundamental equality before the law.[3] Therefore, transgressions occurring in these spaces and within the relationships forged in these contexts merit the full force of mechanisms for accountability. On the other hand, the basic notions of fair play and due process must still be strictly observed. Failure to implement fair play and due process dilutes the credibility of institutions to exact accountability and justice, which ultimately hurts both alleged perpetrator and victim.[4]
As a silent plague creeping across educational institutions, peer-to-peer sexual harassment victimizes the vulnerable in multiple ways: as conduct that directly harms the injured party; through the difficulty in gaining access to justice mechanisms after the fact; and as reinforcement of asymmetrical and gendered power relations in educational settings. While Congress has recognized the need to punish peer-to-peer sexual harassment in this environment, the enforcement of the Safe Spaces Act may give rise to new questions of law given the existing state of jurisprudence with respect to academic due process, and other relevant legislation relating to privacy rights and the rights of minors who may face accusations.
Adding to the legalistic challenge of enforcing anti-sexual harassment policies in schools are developmental perspectives on adolescent behavior and the complicated peer relations in learning environments. Some actions that provoke distress and discomfort to peers may be interpreted as a normal occurrence in an environment where social actors are seen to be exploring their identities vis-à-vis dealing with others who are themselves growing up. This complicates peer sexual harassment in school setting, especially where students can be victims or perpetrators given different social circumstances.
This paper explores the different legal and policy questions that may flow from the implementation of the Safe Spaces Act in education institutions, with a focus on peer-to-peer sexual harassment. Part I presents peer-to-peer harassment as a social fact together with its nuances and broader implications. Part II looks at the legislative design of the Safe Spaces Act and how it departs from the previous legal regime on sexual harassment. Part III zooms in on peer-to-peer sexual harassment as punishable conduct and its potential interaction with other areas of law. Finally, Part IV tackles the broader social response to peer-to-peer sexual harassment in educational institutions, taking into account the preceding legal discussion.
* LL.M., University for Peace & United Nations Interregional Crime and Justice Research Institute (2020); J.D., University of the Philippines (2016); Vice Chair (Volume 88), Philippine Law Journal; AB Political Science, cum laude, Ateneo de Manila University (2010). Lecturer, University of the Philippines College of Law and the Department of Political Science Ateneo de Manila University.
** MA Sociology, University of the Philippines Diliman (ongoing), BA Sociology, summa cum laude, University of the Philippines Diliman (2016). Vice President for Research and Education, Youth Against Sexual Harassment (2020). Instructor, Department of Sociology, University of the Philippines Diliman.
[1] An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor, Republic Act 11313, sec. 3(g) (2019).
[2]An Act Declaring Sexual Harassment Unlawful in the Employment, Education or Training Environment, and for Other Purposes, Republic Act 7877 (1995).
[3] R.A. 11313, sec. 2.
[4] Harper, S., Maskaly, J., Kirkner, A., & Lorenz, K. Enhancing Title IX Due Process Standards in Campus Sexual Assault Adjudication: Considering the Roles of Distributive, Procedural, and Restorative Justice. 16 Journ. of School Violence, 302 (2017).
