The justice ministry is considering whether to amend a law that says a person can only be found guilty of sexual harassment in the workplace if the behaviour could be regarded as offensive, humiliating and intimidating.

It follows a case in which a police officer was cleared of sexually harassing a 19-year-old recruit because the prosecution could not prove all three factors together.  The teenage recruit had found the behaviour offensive and humiliating but she was not intimidated by it.

Madam Justice Consuelo Scerri Herrera said she could, therefore, only find the man guilty of harassment and ordered that the justice minister be notified of her judgment and asked to make any necessary changes to the law.

Justice Minister Jonathan Attard confirmed that, without going into the merits of the particular case, due to the fact that the appeal was still sub judice, his ministry was “currently analysing the sentence and examining studies on the subject matter and foreign jurisdictions’ legislation to be in a better position to put forward any necessary amendments”.

“We want people, irrespective of their gender, to feel safe at work and that justice is done,” he said.

The young police recruit had told the court that the officer stationed in Msida had made unwelcome advances towards her while they were together in a police car on a night shift.

Throughout the drive, the officer began touching her leg above the knee, while joking that his hand had “slipped the gear lever”.

He also commented on her bottom as she stepped out of the car and placed his hand on her seat so that she would sit on it when she got back in. The man had also messaged her to ask her to go on a weekend break and kissed her on the cheek when she stood up after bending over to get something from a vending machine.

Under article 29 of the Employment and Industrial Relations Act, it is illegal for any employee to sexually harass another by any act or request that “could reasonably be regarded as offensive, humiliating or intimidating to the victim”.

Victim Support Malta said that it was a “tall order” to assess whether an incident could be verified as simultaneously offensive, humiliating and intimidating, particularly because, without tangible evidence, it was “a hugely subjective, individual experience”.

Its executive chairperson Julianne Grima questioned how to “determine with accuracy – an accuracy that determines the fate of an alleged victim and alleged perpetrator – whether an individual has experienced those emotions”.

She maintained that, with its current resources, the criminal justice system could not accurately assess these experiences unless added support and training were provided to both the police and the judiciary “to sensitise these professionals to the psychology behind the experience of the victims who come forward.

“We are currently working within a system where victims who file a report are not, at the compilation stage, assessed by an appointed court expert whose report can be used even at a later stage if the case is (within a number of years) shifted to a jury case,” Grima pointed out.

This means a victim could file a report close to the occurrence of the incident, testify in court years later and, possibly, have to re-testify some five years after the incident, she outlined.

In the case in question, the 33-year-old police officer was sentenced to one year in prison, suspended for two years. He was also accused of the rape of another police colleague at Msida station.

However, he was cleared of this because there were no eyewitnesses, the alleged rape victim’s testimony could not be corroborated, and a detailed analysis of her account showed inconsistencies. The judge concluded that the plaintiff’s version was not credible, clearing the officer of all charges in her regard.

Backlash

This ruling elicited a backlash from various organisations.

The Malta Women’s Lobby said the rape case verdict was “victim blaming at its very worst”. Expressing shock at the way an alleged “rape victim has been discredited and punished after she had the courage to come forward and report her aggressor”, the lobby said it was a “blow and an insult to all rape victims”.

If rape trauma experts had been consulted, they could have explained that research repeatedly showed victims often made mistakes in the timeline of events, “precisely because such events are so traumatic”. It also questioned the judge’s decision to rule as inadmissible a typed confession from the accused because it was “not in the correct format according to law”.

“Were the officers who charged him incompetent in matters of procedure? Or, perhaps, was this a convenient get-out-of-jail card, played to manipulate the system?

Was this a convenient get-out-of-jail card, played to manipulate the system?- Malta Women’s Lobby

“Either way, the conclusion is there is no safe space in Malta, not even a police station, where victims are expected to file reports and seek protection.”

The overwhelming outcome of this judgment is that rape victims were not to be believed, reinforcing the fact that the system, ultimately, punished the victim, while emboldening perpetrators to continue raping women, fearing no consequence. Both law enforcement officers and members of the judiciary needed urgent training in handling such cases, it maintained.

Men Against Violence also had harsh criticism for the judgment.

“Another day and another person accused of rape walks scot-free because the victim did not fight back, did not try hard enough, did not avoid the perpetrator enough – in other words, did not live up to the expectations of how the perfect victim should act,” it said.

“It is no wonder research shows 85% of Maltese would not report if they were raped or sexually assaulted. Women know it will only lead to a trial of their character, re-victimisation and, ultimately, acquittal of the aggressor.”

In this particular case, it said, even the technical errors in extracting a signed confession from a perpetrator took precedence over the rights of the victim.

It called for victim-centred policies and procedures when collecting evidence in rape and sexual assault cases to prevent technical mistakes.