Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
M.S. was sexually harassed by Mr. G, a senior manager. She rebuffed his advances – including several episodes of sexualised touching – and complained to her immediate manager, Mr S, but no action was taken. M.S. was treated unfavourably because of her complaint, and eventually her working life was made impossible because of this treatment, so she resigned, suffering from stress and depression. She filed criminal complaints against Mr G for assault, and in the employment tribunal. Mr G died, so the criminal case ended, but the employment case went all the way to the Supreme Court on appeal.
M.S. said that when her case was at the Supreme Court, stereotypes and gendered myths were applied: that women should physically resist sexual harassment, and always be actively hostile to their harasser. M.S. said that the courts should consider other factors in these cases that might affect a woman’s behaviour, such as the “psychological effects of sexual violence, the power relations between an employer and an employee and the social and cultural influences at play.”
The Philippines argued instead that M.S.’s case failed “the application of the practical test of common human experience,” to which M.S. replied:
“The so-called “common human experience” is reminiscent of sexism. [.. A]ccording to such logic, every Filipina caught in an exploitative situation would thus be expected to physically assault her attacker or molestor. ..[T]he State party does not take into account other factors that may determine a person’s behaviour in such a situation, such as the psychological effects of the sexual violence, the relationship of subordination between an employer and an employee (let alone between a sexual harasser and a victim) and the social and cultural influences. Instead, [M.S] is scrutinised solely by reference to a rigid stereotype, to her detriment.”
M.S. argued that her right not to be subjected to discriminatory laws, regulation, customs and practices had been violated (Articles 2(c)(e) and (f), as well as her right to a safe place of work (Article 11(1)(f)) as well as her right of access to a remedy.
What was the decision?
In this case, the CEDAW Committee found that there was not sufficient evidence on the record of the court process to come to a decision about whether the treatment M.S. had been subjected to was discriminatory or not: and although M.S. drew attention to similarities between her situation and the Karen Tayag Vertido case, the CEDAW Committee found the two situations “fundamentally different.” Although the CEDAW Committee found that there were some aspects of gender-based stereotypes in the court’s decision, they were not sufficient to demonstrate that they negatively affected the court’s assessment of the facts and the outcome of the trial.
In a dissenting opinion, CEDAW member Patricia Schulz found that the stereotyping was significant, and on those grounds, she would have found a violation of rights relating to access to justice. However, she found that she would have found M.S.’ application to CEDAW inadmissible due to the long period (five years) between the final exhaustion of domestic remedies at the Supreme Court, and submitting the case to the CEDAW Committee. She suggested instituting a general rule (subject to some justifiable exceptions) of submitting cases to the CEDAW Committee within one year of exhausting domestic remedies.
The CEDAW Committee did not find a violation in this case: although it found some aspects of gender stereotyping in the decision, it could not say that the Supreme Court’s decision that there was not enough evidence that sexual harassment was committed, was “arbitrary or a denial of justice.”
The facts of the case as alleged by the applicant, show that sexual touching took place in a public place, in a situation where it would have been socially and professionally difficult for the applicant to challenge the perpetrator.