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Comparative Study of Prevention of Sexual Harassment Laws/Regulations in India, China and Canada

forgetting is difficult, remembering is worse

Sexual harassment is one such incident that is hard for someone to forget but also makes it even worse when remembered.

Abstract
Nearly every country faces the issue of sexual harassment. Because of which it has become a worldwide issue Every country deals with sexual harassment in their way. Each country brings up many laws and regulations for the prevention of sexual harassment. And each of these laws and regulations differs in every country.

Few countries treat sexual harassment as a gender-biased issue and few countries treat it as a gender-neutral issue. But the fact that should be known is that sexual harassment can happen to anyone despite age, gender, character, and attitude. It is been taken into account that almost 35% of the women globally experience physical and sexual violence.

The #metoo movement got a lot of responses from all over the world. This movement shows clearly that women face sexual harassment almost all around the world. This article shows the comparative study between the laws/ regulations of countries like India, China, and Canada.

India
In India, few rights are guaranteed from the time of birth and human beings have rights which cannot be unavoidable. The rights are defined under the protection of the human rights act which is related to life, liberty, equality, and dignity which are assured under the constitution or enforced by the Indian courts which are included in various international agreements. There is a breach of the right to live with dignity in the matters of sexual harassment and it's a human right to live with dignity.

The harassment laws are defined very specifically under Indian law. Hence under article 15(3) its mentioned that Nothing in this article shall prevent the State from making any special provision for women and children which means this article gives the legislative powers to make special laws or regulations regarding women and children for there protection. In India, the laws are interesting for women and are very less for men. There is a lot of gender bias in the making of laws in the issues of sexual harassment.

The harassment laws under are defined under the Indian penal code[1], Information and Technology Act[2], and Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act[3].

China
In China, sexual harassment has no definite definition at national level . The existing legislation of china criminalizes sexual harassment only to women and not to men. But there are few definitions of sexual harassment in local legislation and applicable only at the local level. Beijing, Currently, Beijing, Shanghai, Jiangsu, Guangdong, and Shenzhen have there own definitions for sexual harassment but the enforcement of the laws varies.

And Jiangsu Province's provincial regulations on the protection of women's rights define sexual harassment at the local level. But for the first time after the #metoo movement china could not run away from the fact of not having defined laws for sexual harassment. Hence the PRC national peoples congress issued a new draft with several sections of the PRC civil code on 5th September 2018. China has started work on its first draft of its civil code. And the code includes clarity of the definition of sexual harassment. And the changes in these sexual harassment will come into enforcement by 2020.

Except for the draft civil code, the national framework comprises the following on sexual harassment:
  • National human rights action plan (2016-2020): this plan mentions the rights accessible to women and the goal of this plan is to prevent and protect women from sexual harassment.
The Protection of Women's Rights in PRC law:
article 40 notably proscribes sexual harassment against women. Under this, the women are given the right to file their grievances in their own working space.

Special Provision on Labor Protection for Female Employees (State Council Order No.619): article 11 laydowns that in the work premises employers should prohibit and restrain any kind of sexual harassment against women.

Criminal Law of the PRC[4]: under article 237 the immoral assault of a woman is held as a crime to which the punishment is Maximum fixed-term of 5 years imprisonment to the offenders.
China Women's Development Program (2011-2020): under this program, the prevention of sexual harassment is the duty of employers in the workplace.

Canada
In Canada, sexual harassment is defined under Canadian criminal law, Canadian labor law, and the Ontario human rights code. Sexual harassment is an infringement of human rights. The definition of sexual harassment, which is constituted as sexual harassment, and the remedies are provided under these three laws.
  • Ontario human rights code[5]:
    this is the local law for human rights which handles discrimination. According to this code sexual harassment comes under a form of sexual harassment. Ontario also has laws for a safe workplace which specially deals with the law for sexual harassment in the workplace. Under this code, sexual harassment is treated as discrimination on the bases of sex. This code also includes stalking as a form of sexual harassment.'
     
  • Canadian labor code[6]:
    employers are given the right to have employment free of sexual harassment and any such issue related to sexual harassment should be treated positively and to prevent sexual harassment in the workplace the employers need to take a positive action under division XV.1 of part III. Under this code the definition of sexual harassment in the workplace is given, who all entitled to seek protection from sexual harassment in the workplace, the responsibilities of an employer to prevent sexual harassment in their workplace, and how the sexual harassment policy should be informed to the employers by the employees.
     
  • Canadian criminal law[7]:
     in the criminal code sexual assault is defined in 3 levels according to nature and objective. What amounts to sexual assault is given Under s. 265(1)[8]. s. 271[9] is the level 1 of sexual assault, this section doesn't specify anything further the definition in s. 265 but it takes into consideration the sexual objective and the nature of the assault and the accused serves a sentence of 10 years in this level. Level 2 of sexual assault is defined in s.272[10] which defines sexual assault which includes weapon, threats the person other than the complaint to cause bodily injury and the accused serves a sentence of 14 years in this level. Level 3 of sexual assault or aggrieved sexual assault is defined under s.273[11] which says sexual assault resulting in wounding, maiming, disfiguring, or threaten to the victim's life the accused is sentenced for lifetime prison which is maximum 25 years. A summary conviction offense of sexual assault is considered a less serious offense. Hence the punishment is only maximum up to six months in jail and/or a $2,000 fine

Comparative Analysis
The common intention of the laws made by the counties is to prevent and give remedies to the victims of sexual harassment. In all the countries one of the repeated problem faced is that they don't have an exact record on the how many people are getting victimized because they don't feel free to share the incident or they think about their name in the society and file a case, this makes it very difficult to identify the accused and make effective decisions that can give an impact in the prevention of sexual harassment.

One difference between the laws in India from China and Canada is that the laws in India are gender-biased, they are made interesting only women, there are no strict laws for sexual harassment against men but the present draft of china and the laws in Canada are not gender-biased. India and Canada have strict laws defined for sexual harassment at a national level but when compared to china, it doesn't have any strict law which defines sexual harassment at a national level.

In China, sexual harassment is defined at a local level, the local level is stronger than the national level. There is a very huge drawback due to the strict laws in India, the women in India take advantage of the strict laws for their advantage and file fake cases and accuses on the men where men have no remedy to get a remedy for such fake cases, they bare a lot of damage. Many men in India take their own lives due to these false accusations on them and they are sexually harassed and have no remedy under the eyes of the law.

The punishments for sexual harassment differ from each country, for example, the punishment is severe in Canada but in India, the punishment is not that severe and china has no specific punishments for such acts in their present law but the draft has rigid punishment. Another common thing is all the three countries' law is that the companies are ordered to have a local compliant committee to deal with issues of sexual harassment in their own company and the employer has been given certain responsibilities to fulfill to prevent sexual harassment and provide the employees a safe workplace.

The companies have the responsibility to spread awareness on such issues and the remedies they are accessible in any such case. In India and Canada stalking a person is also taken into consideration as sexual harassment.

Conclusion
Despite all these laws made by various countries, sexual harassment has always been a socially complex issue. It always comes up with challenges to face and deal with. Only making laws doesn't help in bringing change, people should be educated with the laws and awareness should be spread.

Many more movement like #metoo should be encouraged cause through this movements many victims come out of their fear, share their story and fight for justice and try and bring out some awareness and makes us realize that our legal and systematic provisions have failed to deal with sexual harassment. When such movement's come in to air the legal system and admiratives are pressurized to take the person into charge and give this problem a justifying solution.

End-Notes:
  1. Indian penal code, 1860
  2. Information and technology act, 2000
  3. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
  4. Criminal Law of the People's Republic of China, 1979
  5. Ontario human rights code, 1961
  6. Canada Labour Code (R.S.C. , 1985)
  7. RSC 1985, c C-46
  8. Section 256(1), Criminal Code (R.S.C., 1985, c. C-46)
  9. Section 271, Criminal Code (R.S.C., 1985, c. C-46)
  10. Section 272, Criminal Code (R.S.C., 1985, c. C-46)
  11. Section 273, Criminal Code (R.S.C., 1985, c. C-46)

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