• Discerning sexual favors from a person’s acts as sexual harassment

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    Persida Acosta

    Dear PAO,
    My professor once had me wait for him after class because he said he will talk to me about my grade. I waited for him. In the course of his talk, he fondled my breasts many times as he demonstrated my probable failure in his class. I shivered in fear. He did not ask me of any favor but I know he did something wrong to me. I filed a case against him, and he was consequently dismissed by the school. He even explained himself in writing, and said the touching of my breasts was accidental, not intentional. He now appeals his termination, stating that the notice given to him by the school is defective. The mere fact that he was asked to explain in writing about “the fondling of breasts” is allegedly not sufficient allegation that amounts to sexual harassment. Hence for him, he was illegally dismissed. Is he right? Can I win my case against him for sexual harassment?
    Sincerely yours,
    Timmy

    Dear Timmy,
    The case of Dioscoro F. Bacsin vs. Eduardo Wahima (G.R. No. 146053, 30 April 2008) penned by Associate Justice Presbitero Velasco Jr. can enlighten you in your situation. It clearly stated:

    “It is clear that petitioner was sufficiently informed of the basis of the charge against him, which was his act of improperly touching one of his students. Thus informed, he defended himself from such charge. The failure to designate the offense specifically and with precision is of no moment in this administrative case.

    The formal charge, while not specifically mentioning Republic Act [RA] 7877, The Anti-Sexual Harassment Act of 1995, imputes on the petitioner acts covered and penalized by said law. Contrary to the argument of petitioner, the demand of a sexual favor need not be explicit or stated. In Domingo v. Rayala, it was held, that while it is true that this provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. The CSC [Civil Service Commission] found, as did the CA [Court of Appeals], that even without an explicit demand from petitioner, his act of mashing the breast of AAA was sufficient to constitute sexual harassment. Moreover, under Section 3 (b) (4) of RA 7877, sexual harassment in an education or training environment is committed [w]hen the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. AAA even testified that she felt fear at the time petitioner touched her.

    xxx xxx xxx

    In grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest. The act of petitioner of fondling one of his students is against a law, RA 7877, and is doubtless inexcusable. The particular act of petitioner cannot in any way be construed as a case of simple misconduct. Sexually molesting a child is, by any norm, a revolting act that it cannot but be categorized as a grave offense. Parents entrust the care and molding of their children to teachers, and expect them to be their guardians while in school. Petitioner has violated that trust. The charge of grave misconduct proven against petitioner demonstrates his unfitness to remain as a teacher and continue to discharge the functions of his office.” (Emphasis supplied)

    Succinctly, not because you were unable to name his charge as a violation under the Anti-Sexual Harassment Law (RA 7877) or the fact that he made no demand from you, he can escape liability from the acts he did.

    Truly, as stated in the above-cited case, the demand may actually be discerned or inferred in the acts of the person and the surrounding circumstances of the situation.

    You were retained after class on the pretext of your failing grade, which he actually demonstrated and led to the “fondling of breasts.” Hence, considering these, your teacher may be found liable under RA 7877.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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