A JOURNALIST sent me a screengrab of a social media posting, containing a lewd joke by a local comedian, addressed to a young foreign singer, which stated (as translated in English) "Ah baby, no wonder I cannot find my boxer shorts anywhere. You were wearing it. Please wash it before you return it to me because I bought it at a bundle store…"
The joke was his comment of the singer's Instagram photos in which the top band of her undergarment was visible.
The singer's fans were upset and they accused the comedian of sexually harassing her. The comedian's joke, however, received thousands of "likes" from his fans before it was deleted.
In the ensuing "heated debate" on social media, some people here blamed the comedian for his poor taste, while others blamed the singer, stating that it was her appearance on social media that attracted obscene comments.
So far, the singer has not filed any suit against the comedian, but some of her fans said the joke was "disgusting and perverted".
The journalist who sent me the screengrab wanted to know whether the comedian's joke can be considered sexual harassment?
I told the journalist that much of the legal material on sexual harassment that we have concerns two people (the harasser and the victim) in a working environment.
The comedian and the singer are not co-workers in such an environment. Under Section 2 of the Employment Act 1955 (Act 265), as amended in 2012, sexual harassment is defined as "any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his/her wellbeing, arising out of or in the course of his/her employment".
Under the Human Resources Ministry's Code of Practice 1999, "sexual harassment" means "any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment — that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her wellbeing, but has no direct link to her/his employment".
The Code sets out five forms of sexual harassment — verbal harassment (offensive or suggestive remarks, comments, jokes), nonverbal /gestural harassment (ogling with suggestive overtones, hand signal or sign language denoting sexual activity, persistent flirting), visual harassment (showing pornographic materials, writing sex-based letters, sexual exposure), psychological harassment (unwanted social invitations, proposals for dates or physical intimacy) and physical harassment (inappropriate touching, stroking, brushing up against the body, hugging, fondling and sexual assault).
In Mohd Ridzwan Abdul Razak v Asmah Hj Mohd (2016),the Federal Court held that the respondent (an employee in a wellknown government-linked company) had been sexually harassed by the appellant (her senior manager) after finding, on the evidence, that "the ingredients of sexual harassment are present in abundance".
The court said the appellant had not only uttered vulgar remarks, made dirty jokes without the slightest respect for female subordinates, used dirty words in his emails, but also repeatedly asked the respondent to be his second wife.
Citing an old English case, the Federal Court said that "harassment" meant "persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated and does cause that person alarm, fear or distress".
Having considered the elements of sexual harassment as summarised above, the comedian's single posting of a lewd joke on the singer cannot legally be considered as sexual harassment. But, is it in breach of any other law? Section 233 of the Communications and Multimedia Act 1998 states that "Any person who... makes... any comment... or any other communication which is obscene, indecent, false, menacing or offensive in character with the intention to annoy, abuse, threaten or harass another person… commits an offence".
Assuming that the comedian's joke is indeed indecent or offensive, the question is whether he has the intention to annoy, abuse, threaten or harass the singer. An offence needs both — the actus reus (the wrongful act) and the mens rea (the guilty intent).
The writer, a former federal counsel at the Attorney-General's Chambers, is deputy chairman of Kuala Lumpur Foundation to Criminalise War
