Sexual harassment in the public sphere: criminal or administrative offense?

She scrambled out of the elevator as he tried to grab her arm. The whole incident was taped by a security camera and was as clear as crystal. The perpetrator was fined a mere VND200,000 ($8). Several other cases of sexual harassment of adult women in the public space have since been published on media and social networks following the incident.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Vietnam in 1982, provides that States parties adopt legislation prohibiting all forms of gender-based violence against women and girls, requiring the harmonization of national law with the Convention to ensure that the former contains effective legal protection, including appropriate and effective sanctions on perpetrators and reparations to victims/survivors.

Sadly, this is currently not the case in Vietnam. While the Decree on Administrative Offenses is under revision in order to increase the fine for the offense of touching sensitive body parts and forced kissing, this is still treated as merely an administrative offense, not a criminal one. While increasing fines under the current law is a step in the right direction, the law itself unfortunately fails to address the core issue: any form of sexual violence is violent and criminal in nature and should not fall within the realm of administrative law.

Sexual harassment, just like rape, is a form of sexual violence. Sexual harassment encompasses non-consensual physical contact - like grabbing, pinching, slapping, or rubbing against another person in a sexual way; as well as non-physical violence - such as catcalls, sexual comments about a person's body or appearance, demands for sexual favors, sexually suggestive staring, stalking, and exposing one’s sex organs. It may occur in the private sphere such as domestic violence, at the workplace, or in public places. While rape constitutes a criminal offense in the Vietnamese Penal Code, sexual harassment in the public sphere only falls within the scope of criminal law and is as such adjudicated in criminal court, if it "seriously infringes upon the dignity or honor of other persons" or if there is harm to a person’s health judged to be above 11 percent of bodily injury. However, what is considered as "seriously infringing upon the dignity or honor of other persons," is not clearly defined in any legal documents while the bodily harm criteria implies that the criminal nature of the offense depends on the severity of physical injuries inflicted on the victim.

This approach, apart from being deficient on multiple grounds, does not adequately consider adverse effects on mental health as the responsibility to assess damage is left to medical professionals and not psychologists. Moreover, the effects on victims’ mental health often are not visible immediately but rather become apparent over time. For these reasons, we strongly urge the newly elected members of the National Assembly to amend the Penal Code in order to more adequately reflect the seriousness of sexual harassment in the public sphere as sexual violence and a criminal offense.

People gather at a park in HCMC, April 2019. Photo by VnExpress/Quynh Tran.

Various countries around the world – Argentina, Canada, France, Philippines, and New Zealand - to name a few, are increasingly banning verbal sexual harassment in the public sphere by recognizing it as a criminal offense. This is even true in traditionally patriarchal societies in which there used to be cultural acceptance of such practices or catcalling in the past. This progress mirrors the evolution of the general public’s perception on social norms regarding sexual harassment in public including in Vietnam. Legislators should represent these changing views in society and lead with legislation. Even though changing existing laws might face prosecutorial challenges, the approach we suggest reflects a humane, victim-centered rebuttal of any form of sexual harassment in the public sphere and is likely to be broadly supported by the people of Vietnam.

The unpermitted touching of another person is a blatant sense of misconstrued entitlement that undermines the very essence of a person; her/his dignity and integrity. Victims of sexual violence experience a profound sense of a loss of control over their personal autonomy and bodily integrity, which burdens their mental health for a long period of time. For this and all the other reasons already stated by us above, all forms of sexual violence should be regulated by criminal law. It is therefore imperative that to preserve and protect personal integrity and wellbeing and to signal the severity of the crime, the National Assembly, representing society as a whole, reject sexual harassment as a serious offense.

This victim-centered approach is now the international standard reiterated in the CEDAW General Comment No. 19. It declares that States parties should ensure that laws against sexual assault and other gender-based violence should give adequate protection to all women and respect their integrity and dignity. Moreover, it notes that States parties should take all legal and other measures that are necessary to provide effective protection to women against gender-based violence, including penal sanctions. We truly hope that Vietnam, as a UN Member State that has signed and ratified CEDAW, will bring its own domestic legislation, norms and standards in harmony with it at the earliest possible time.

*H.E. Sara Valdes Bolaño, Ambassador of Mexico to Vietnam, and Mr. Kamal Malhotra, U.N. Resident Coordinator in Vietnam, are the Co-Chairs of the Informal Ambassadors and Heads of Agencies Group on Gender Policy Coordination.