The topics of groping and sexual harassment have emerged in social media lately, thanks to the trending hashtag #MeToo. This sexual harassment awareness campaign started by actress Alyssa Milano asks women all over the globe to come forward and share their stories of sexual harassment and assault. It comes after the sexual harassment allegations against disgraced Hollywood movie producer Harvey Weinstein. According to a report by The Guardian, over 30,000 women, including celebrities, have joined the Twitter campaign as of mid-October (2017).
Groping vs. Sexual Harassment vs. Rape: The Legal Differences
Under our penal laws, rape is committed by a man or woman who has sexual intercourse with a person under any of the following circumstances: force, threat, or intimidation; when the victim is deprived of reason or is subconscious; by means of fraudulent machination or grave abuse of authority; and when the victim is under 12 years of age or is demented, even though none of the mentioned circumstances are present.
When the penis touches the labia of the victim or is inserted into the victim’s vagina, mouth, or anal orifice under the circumstances mentioned above, it’s considered rape. When an object or instrument is inserted into the genitals, mouth, or anal orifice of the victim under the circumstances mentioned above, it’s also rape. The following, however, DO NOT constitute rape: skin contact, stroking or grazing of the organs, and a slight brush or a scrape of the penis on the external layer of the victim’s vagina.
Sexual harassment, on the other hand, applies if there is an existence of authority, influence, or moral ascendancy between the offender and the offended party—whether in school or in the workplace. “So long as the act is for sexual favors or creates a hostile environment, the offender can be complained by the offended or anyone under the said law,” explained Atty. Reginald Tongol of Tongol Joven and Associates Law and Communications.
As for groping, Dictionary.com defines it as “to feel about with the hands,” “an act or instance of sexually fondling another person,” or “to touch or handle (someone) for sexual pleasure.” Groping can happen in either public or private settings. Depending on the situation, the groper can be charged with Acts of Lasciviousness or Unjust Vexation.
What To Do As Soon As You Are Groped
“Your immediate concern should be securing your safety from the groper and to stop the threat from continuing or escalating,” explained Atty. Tongol. He suggests shouting for help to distract or alarm the offender, immediately pulling yourself physically away from them, running, or even fighting back. “If you have the time and presence of mind to record the incident, you may do so,” he added. But this may not necessarily stop the offender, and the time it takes for you to whip out your camera might not immediately catch the offense as it takes place.
Recently, designer Mich Dulce was able to take a video of her groper and post it online. While it didn’t catch the actual act of groping, her video showed her verbally fighting back and recording the misogynist reply.
Pursuing The Offender
After stopping the threat, Atty. Tongol suggests reporting the incident immediately to the women’s desk of the nearest police precinct.
File a formal complaint at the police precinct to make sure the incident is recorded in the police blotter.
“If there is no police precinct in the area, the next best thing is to go to the barangay hall and file a report in their barangay blotter,” said Atty. Tongol.
This tangible record of the incident can be used as evidence should you wish to pursue the case in court.
If, during or shortly after the groping, your protective boyfriend, husband, or friend wishes to take matters into his own hands, it might not be a good idea.
“A citizen’s arrest is not always advisable because it would entail for the citizen to actually see the incident in plain view (which is not usually the case), and the citizen doing the arrest would need to be trained to resist any harm or threat to themselves when making the arrest,” explained Atty. Tongol.
If you feel like fighting back as self-defense, you are actually allowed to do so. A word of caution from lawyers: The force or violence employed by the victim should be commensurate to repelling the offender only and should NOT be overkill.
In other words, you may shove, slap, or even punch back, but not to the point of trying to kill him.
“The offender may always countersue as he also has a right to file complaints,” said. Atty. Tongol.
It’s best to enlist the help of a nearby police officer. If not, immediately file a report of the incident to discourage a possible countersuit. After filing the report and getting the name of the offender, you may then pursue a case against them by filing a complaint-affidavit with the Office of the City Prosecutor where the harassment happened.
The Law It Violates
Depending on the situation, the groper can be charged with violating one of these four laws:
- Anti-Sexual Harassment Law (RA. 7877) if there is an existence of authority, influence or moral ascendancy between the offender and the offended party in a workplace or educational environment.
- Acts of Lasciviousness of the Revised Penal Code (Article 336) if with lewd design or a motive to satisfy lust.
- Unjust Vexation (Article 287) if there is no lewd design but merely to vex or irritate the victim.
- Anti-Child Abuse Law (RA. No. 7610) if the victim is a minor.
Should I Post The Video Online?
The short answer: No. While many people have been doing this on social media like it’s the most normal thing, it can actually land you in hot water.
By posting it online, you run the risk of being countersued for defamation, or more popularly known as Cyberlibel under the Anti-Cybercrime Law.
“It carries with it a penalty of up to 12 years of imprisonment, which is more than the penalty for Sexual Harassment, Acts of Lasciviousness, and Unjust Vexation combined,” Atty. Tongol explained.
The long answer: While there is no absolute prohibition for posting such videos online, you need to be open to the possibility of being sued for libel or defamation.
“My advice is that victims should not use social media as an alternative to filing a case. These videos should be treated as merely supplementary to filing a case—the pursuance of the latter being the priority,” said Atty. Tongol.
In other words: Feel free to take videos and obtain evidence, but take it to court, not social media.
Special thanks to Atty. Reginald Tongol (Managing Partner, Tongol Joven & Associates Law and Communications; News Anchor for UNTV; Broadcaster and Political Communications Expert; Lecturer of Media Law, Media Ethics, and Creative Industry Law)