STATEMENT: RESPONSE IN RELATION TO OUTCOME OF BDS SOUTH AFRICA’S INVESTIGATION INTO SEXUAL HARASSMENT COMPLAINT

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MEDIA STATEMENT: RESPONSE IN RELATION TO OUTCOME OF BDS SOUTH AFRICA’S INVESTIGATION INTO SEXUAL HARASSMENT COMPLAINT

28 May 2018

In April, the Women’s Legal Centre undertook to representing Professor Kil, one of the complainants of sexual harassment carried out by Muhammad Desai, the National Director of Boycott, Divestment and Sanctions South Africa (BDS SA).  Yesterday, we received the report which detailed the outcome of an investigation, carried out by BDS South Africa. We note with great disappointment the outcome of our client’s complaint of sexual harassment against Mohammed Desai.

Our client, along with two other women, lodged complaints with the Board of BDS SA against Mr. Desai on 22 March 2019, following incidents of sexual harassment on the 21st March 2019 in Johannesburg, Gauteng. On 3 April 2019, the Board of BDS-SA announced that an independent investigation would be convened on 15 April and that it would be completed within a period of one month.

Throughout April, and up until 16 May, the Women’s Legal Centre wrote to the Board of BDS SA to seek clarity on the terms of reference for the investigation. The purpose for which we sought the information was to enable the complainant to understand and make informed decisions about their participation in the process of the investigation. The WLC received no response to, or acknowledgement of, any of the concerns raised.

Without advising us, our client was approached for the first time on 20 May 2019 via email by the investigator of her complaint. She was also advised that the investigation was taking place urgently, and was asked to confirm the content of her statements. No new or further questions were posed to her and she was not given the option of interview.

On 27 May 2019, she was advised via her attorneys at the Women’s Legal Centre that the investigation had been completed and that the findings were that no disciplinary steps need to be taken against Mr. Desai as his behaviour did not constitute workplace misconduct.

We are disappointed in the legal findings, but we are even more disappointed with its analysis. It shows a clear bias in favour of the perpetrator, and the investigator places the burden and onus on women to address sexual harassment and sternly resist it. He opts to require that victims of sexual harassment make it clear by verbally informing the perpetrator and others that the behaviour is unwanted and unacceptable. We refer to the following excerpts of the report, which BDS SA has indicated published on their website:

  1. 85: “It is not clear why Prof Kil, a consummate Palestinian activist, who has encountered Mackivists before in the USA and in her activism community could not sternly inform Mr Desai to refrain and desist from what she considered to be an inappropriate predatory sexual behaviour.”
  2. 88: “According to the statements of Prof X, Ms Y and Prof Z[1], Prof Kil told them that Mr Desai was “annoying her, he could not leave her alone and he was bothering her”. Why did Prof Kil not tell other complainants or any persons at the restaurant that she was being sexually harassed?”

These types of analyses, among others included in the report, are extremely harmful to victims of sexual harassment, and present a bias in favour of male perpetrators. It is a regressive approach to dealing with sexual harassment, contrary to how our courts have interpreted laws in relation to sexual harassment.  To focus on the fact that because the client did not indicate that she is verbally uncomfortable makes her statements weak, is a poor analysis of the incident.

This investigation and its report are a case in point of the importance of taking a victim centred approach to dealing with sexual harassment.  The report favoured an approach that heavily criticised as well as questioned the motives and the behaviour of the complainant against the standard of the ‘perfect victim’, implying and creating a narrative in many instances that the victims are over-reacting, or seeking attention, which has damaging effects for the victim in the already distressing aftermath of seeking justice, and failing. In doing so, the report deliberately ignores the deeply entrenched and gendered power relations that exist between men and women in the workplace, as well as work-related social spaces, but ironically utilises an approach that is wholly indicative thereof.

It also ignores the case law on how sexual harassment can take place outside of the office space and that it frequently takes place in work-related social spaces.

It is disappointing that in the age where women’s voices are meant to be heard, and in light of the many cases of sexual harassment in the public sector in the last two years, at a time where strides are meant to be made to ensure women feel safe enough to come forward in sexual harassment processes, that this report will be used as a regressive justification for letting men get away with sexual violence, and the impact it will have on women coming forward in future.

We pledge solidarity with all the victims of sexual harassment at BDS South Africa, and in the public sector, those who have come forward, and those who have not. We will continue to assist our client as she considers her options going forward.

[1] Names redacted.

Issued on behalf of the Women’s Legal Centre

For further enquiries contact Aisha Hamdulay at aisha@wlce.co.za or communications@wlce.co.za