There is no provision in the Penal Code criminalizing sexual harassment as per the definition of the Code of Practice (Lim, 2008, p.22 & Cruez, 2009, p.20). The provision in the Penal Code covers crimes of sexual nature, i.e. “outraging modesty, dishonouring, insulting modesty, rape, assault and battery”. In most cases, if the sexual harassment act does not involve physical injury or sexual assault, it can be difficult to be proven in a court of law (Nair, 2007, p.23).
As such, making sexual harassment a police case might be ineffectual in light of the fact that the police can only investigate if it involves physical violence for which there is clear evidence of bruises and injury (Ng, Zanariah & Maria, 2003; Nair, 2007, p.23; Sarvinder, 2009). Additionally, sexual harassment can be quite traumatizing as it involves repetitive acts but when viewed separately it is "not serious". This is because the criminal law looks at each incidence individually, not taking into account the accumulative effect of sexual harassment (Ng, Zanariah & Maria, 2003). The police generally, may not investigate and might refer the case directly to the magistrate or the deputy public prosecutor, who may then issue a request to the police to begin an investigation.
There have been criticisms of the use of the Penal Code in sexual harassment cases, an essential one being that the complainants are frequently left to their own strategies and need to battle the fight themselves as best they can use these provisions, and secondly, the complainants would in any case still require some type of validating proof and conceivable witness to the sexual harassment act/acts (Ng, Zanariah & Maria, 2003, p42). Thirdly, the complainant also has to fit her/his experience of it within the fairly constrained existing legislative and common law context (Ng, Zanariah & Maria, 2003, p42) lastly, the prerequisites in proving the case is high in particular, proving the offense beyond reasonable doubt (McCann, 2005; Muzaffar, 2013; Ashgar, 2006a, p.4).
Nevertheless, some sections in the Penal Code can be used to make a case out of sexual harassment:
Section 354 which provides for the use of criminal force to a person with intent to outrage modesty;
Section 377 which provides for unnatural offences against a person; Section 351 which provides for assault;
Section 509 (Amendment Act A 727) which provides for the use of words or gestures intended to insult the modesty of a person;
Section 377D which provides for outrage of decency;
Section 350 which provides for the use of criminal force without the person’s content;
Section 376 which provides for rape ;
Section 503 which provides for criminal intimidation and
Section 355 which provides for assault or criminal force with intent to dishonour a person
2.2.1.1 The Penal Code
Section 354
Section 354 of the Penal Code reads as follows:
“Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years, or with fine, or with whipping, or with any two such punishments”.
Section 351
Section 351 of the Penal Code reads as follows:
“Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both”.
Section 509
Section 509 (Amendment Act A 727) of the Penal Code reads as follows:
“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gestures, or exhibits any object, intending that such a 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, shall be punished with imprisonment for a term which may extend to five years or with fine or with both”.
Section 375
A noteworthy alteration was made to the Penal Code, in 2006, pertaining to the issue of sexual harassment in the workplace where a new sub – section was added under section 375 of the Penal Code reads as follows:
“It strongly states that a man is said to have committed “rape” even with her consent: when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her”.
The new sub – section 375(f) of the Penal Code reads as follows:
“Deals with new categories of rape, where sexual intercourse had with the consent of a woman will become rape if: (a) her consent was obtained by the offender “using his position of authority over her”, or (b) her consent was obtained “because of professional relationship”, or (c) her consent was obtained because of “other relationship of trust in relation to her”.
The purpose of this new sub – section is to catch wrongdoers who mishandled their positions or trust in circumstances that would vitiate the consent and therefore amount to rape (Muzaffar, 2014, p.27).