Judge Mbenenge sexual harassment case demonstrates that submission is not consent

An important matter is before the Judicial Conduct Tribunal.

The tribunal is hearing allegations of sexual harassment against Eastern Cape judge president Selby Mbenenge.

The investigation arises out of a complaint laid against him by Andiswa Mengo, who works as a judges’ secretary in the said division of the court.

The complaint, which was filed in January 2023, is related to alleged in-person and electronic interactions of a sexual nature between Mengo and Mbenenge between June 2021 and November 2022.

The tribunal is being live-streamed, giving the public a front-row seat to the horrors which Mengo allegedly endured in the hands of the once-respected judge.

The case against Mbenenge has put the issue of sexual harassment in the workplace in the spotlight.

Sexual harassment relates to any unwanted conduct that is sexual in nature.

Such conduct is not welcomed and is not mutual at the time it takes place and is thus considered non-consensual.

Sexual harassment occurs in a context of uneven power relations.

This often presents as harassment of junior employees by their superiors.

Furthermore, sexual harassment in the workplace is often gendered, with women being on the receiving end far more than men, even though the latter are not immune from being victims of sexual harassment.

As argued by diversity and inclusion specialist Tumelo Rasebopye in an article published by the Sowetan, some conduct which constitutes sexual harassment is normalised and deemed socially acceptable.

One of the key discussions taking place on social media pertains to the way in which Mengo responded to some messages from the judge.

In some instances, her responses to his messages sound consensual.

For example, in her testimony on how she responded to the judge sending her a pornographic collage of multiple sexual positions, Mengo stated that she had responded: “It’s nice”.

According to her testimony, she responded in this manner because she knew that such an answer would please him, though she did not mean it.

Her response, according to her testimony, came after being bombarded with sexually charged texts over a period of time.

Mengo’s response to some of the judge’s comments seems to fit the theory that the interactions were consensual.

However, in a country where gender-based violence is so rife, we must be careful about accepting such a defence, not only because it is common among perpetrators, but also because it conceals the power dynamics which characterise sexual harassment.

More often than not, victims of sexual harassment feel powerless against their more senior perpetrators.

This is in part because even the steps that experts advise victims to

report incidents of sexual harassment are inadequate.

Experts such as Rasebopye assert that recipients of unwanted sexual conduct should make it known to the individuals that they find their conduct to be offensive and not appreciated.

It is argued that should this conduct persist, recipients need to either take note of the behaviour for record-keeping purposes, reinforce their boundaries or approach human resources or the office designated to deal with such conduct for support in enforcing their boundaries.

While this sounds reasonable in theory, in reality the power dynamics between the victim and perpetrator makes reporting difficult.

Victims often rely on the perpetrators for employment or supervision.

Thus, reporting such a person threatens their career advancement and livelihood.

Furthermore, the impunity with which perpetrators are often treated owing to their stature and power makes victims afraid to file official complaints, especially as such complaints are dealt with within the institutions that the powerful perpetrators preside over.

As the hearings continue, it’s important we understand that when juniors seemingly reciprocate flirtatious messages with their seniors, especially when such messages happen after initial resistance that is disregarded, it’s not because they are consenting.

Submission is not consent.