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Thanks, CIS.<br>
<br>
Norbert Klein<br>
Cambodia<br>
<br>
=<br>
<br>
<div class="moz-cite-prefix">On 04/20/2016 06:25 PM, Sunil Abraham
wrote:<br>
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cite="mid:CAJatcgaKr4V+VG280XjaDLRB=eSOfUemH=15Vgf77sbGVcnrtw@mail.gmail.com"
type="cite">
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<div style="text-align:center"><b><u>CIS Statement on ICANN55
Sexual Harassment : A response to the ICANN Ombudsman’s
Office </u></b></div>
<br>
<br>
On March 30, 2016, the Ombudsman’s Office at ICANN released its
final report (Report) in the matter of the complaint filed by
Ms. Padmini Baruah (Complainant). The Complainant had alleged
that she had been subjected to conduct that amounted to sexual
harassment by a member of the ICANN community attending ICANN
55.<br>
<br>
We would like to state for the record our extreme disappointment
with the Ombudsman’s Report. The Report bases the inability to
carry on any further investigation in this regard on the claim
that confidentiality of proceedings was breached. The breach of
confidentiality, if an issue, must be treated as a separate
matter and nothing prevents the Ombudsman from pursuing it
independently. However, this does not prevent an investigation
into the incident of sexual harassment, itself.<br>
<br>
Further, we find that the tone of the Report is problematic. It
completely disregards the Complainant’s detailed account of
events, and fails to even acknowledge them in the final Report.
Further, many parts of the statement are completely misleading.
For example, in describing the event, the Report says that
“There was a general discussion about food” but as per the
accounts of the Complainant as well as the witness to the
incident, this is completely untrue. The Complainant’s account
to the Ombudsman does not speak of any discussion prior to the
incident in question whatsoever and to claim otherwise is to
dilute the complaint significantly.<br>
<br>
There have also been lapses in procedure throughout this
process. First, during ICANN55, the Complainant was given no
interim relief, with the alleged perpetrator freely walking
around the conference venue, and as per the Complainant’s
account, at one instance even staring at the her. Second, the
Ombudsman failed to contact a witness who, according to the
Complainant, was referred to by her both at the meeting and
through email after ICANN55. In spite of the witness being put
in direct correspondence with the Ombudsman on 24th March, 2016,
as of 5th April, 2016, the witness has still not been contacted
or asked to provide a statement. This shows an utter lack of
seriousness in dealing with this issue. Another failing has been
that the Ombudsman provided no clarity to the Complainant with
respect to the powers and mandate of his office, leading to a
situation of no alternative forum and no clear signal. Please
find our specific objections to the Report:<br>
<br>
<font size="4">1. What constitutes sexual harassment?</font><br>
<br>
In his Report, the Ombudsman states that “the matters alleged
cannot be considered serious by any standard.” He further goes
to say that if “in fact the action and statement were made, it
may have been a lapse of good manners and insensitive to
gender.” The Report does not clarify if the Office of the
Ombudsman has used a standard or a definition of what
constitutes sexual harassment to arrive at the conclusion that
the conduct in question was merely “a lapse of good manners and
insensitive to gender,” nor is there any reasoning for why he
considers the matters alleged as not “serious by any standard”.
Without going into questions of fact, we find the levity with
which the Report deals with the alleged conduct extremely
problematic and inconsiderate of globally recognised principles
on what constitutes sexual harassment.<br>
<br>
Article 11 of the Convention for the Elimination of All Forms of
Discrimination against Women (CEDAW) defines sexual harassment
as including:<br>
<br>
<i>“such unwelcome sexually determined behaviour as physical
contact and advances, sexually coloured remarks, showing
pornography and sexual demand, whether by words or actions.
Such conduct can be humiliating and may constitute a health
and safety problem; it is discriminatory when the woman has
reasonable grounds to believe that her objection would
disadvantage her in connection with her employment, including
recruitment or promotion, or when it creates a hostile working
environment.”</i><br>
<br>
Further, the Employment Policy of ICANN itself includes within
the scope of sexual harassment “verbal, physical and visual
conduct that creates an intimidating, offensive or hostile
working environment, or interferes with work performance.” The
policy goes on to state:<br>
<br>
<i>Harassing conduct can take many forms and includes, but is
not limited to, the following:<br>
<br>
1. Slurs, jokes, epithets, derogatory comments, statements or
gestures;<br>
<br>
2. Assault, impeding or blocking another’s movement or
otherwise physically interfering with normal work;<br>
<br>
3. Pictures, posters, drawings or cartoons based upon the
characteristics mentioned in the first paragraph of this
policy.<br>
<br>
Sexually harassing conduct includes all of the above
prohibited actions, as well as other unwelcome conduct, such
as requests for sexual favors, conversation containing sexual
comments, and unwelcome sexual advances.”</i><br>
<br>
The alleged conduct involved physical contact with the victim,
offensive remarks and behaviour that made the victim extremely
uncomfortable, and falls within the scope of both definitions
mentioned above. The Ombudsman’s Report states at a later stage
that “ICANN, for internal staff purposes and for the board has a
specific zero tolerance policy for sexual harassment.” While we
appreciate the difficulty of the Ombudsman’s office that the
Internal Policy for ICANN staff is not applicable in the
immediate matter, we are extremely puzzled why an unspecified
metric for determining sexual harassment so divergent from not
only globally accepted standards but also ICANN’s own internal
policy was relied upon. <br>
<br>
<font size="4">2. Confidentiality</font><br>
<br>
While this entire process has, according to the Ombudsman’s
report, boiled down to the question of a breach of
confidentiality, it remains to be shown how a breach in
confidentiality nullifies an allegation of sexual harassment. It
is forseeable that the question of confidentiality becomes a
separate matter, but to make it the deciding factor is a
distinct investigation is completely ridiculous. While breach of
confidentiality may be damaging to the reputation of the alleged
perpetrator, how does it have an impact on the facts and
questions that the Ombudsman is seeking to address?<br>
<br>
Section 3 of Article V of the Bylaws for ICANN provides that the
Office of Ombudsman shall comply with ICANN’s confidentiality
policies. This mandate applies the Ombudsman’s office and not on
the Complainant. As per the Complainant, she had, at no
instance, been asked to maintain confidentiality of the event. <br>
<br>
According to the Complainant, the lack of a clear policy and the
intent of the Ombudsman to close the investigation left her with
little choice than to go public. The Complainant decided to go
public in the absence of processes on which she could put faith
upon, and in the absence of a clear indication of the expected
course of action.<br>
<br>
The next issue is whether revealing the name of the alleged
perpetrator compromises the procedural fairness of the
investigation, and to what extent. In what ways does it
compromise the perpetrator’s ability to defend himself and the
ombudsman’s ability to come to an impartial assessment? There
are three recognised rules of procedural fairness. First, the
parties must be provided with a right to fair hearing (the
Hearing Rule). Second, the decision-maker must be an impartial
body (the Bias Rule). Finally, the decision must be based on
logically probative evidence and not on mere speculation or
suspicion. (the Evidence Rule). The Ombudsman’s Report seems to
suggest the Hearing Rule has been compromised on account of the
Complainant revealing the name of the alleged perpetrator in her
public statement. The Report states that<br>
<br>
<i>“The other party has been publically named without an
opportunity to make any comment or denial of the incident. It
is also part of my role as the ombudsman to ensure that
standards of procedural fairness are met, and the premature
publication regrettably does not meet the standards of natural
justice, because the parties have a right to be heard before
this occurred.”</i><br>
<br>
The Hearing Rule requires a decision-maker to inform a person of
the case against them or their interests and give them an
opportunity to be heard. Procedural fairness is often said to be
breached in cases where there is a legitimate expectation that a
decision-maker will act in a certain ways and does not. Further,
the Hearing Rule mandates that parties are given reasonable
notice, adequate time to prepare for a meeting, entitlement to a
hearing and an opportunity to respond to adverse materials. We
understand that revealing the alleged perpetrator’s identity in
a public statement can cause damage to his reputation, and there
may be separate remedies available to him to address the same,
either within the ICANN framework or outside of it. The parties
have a right be a fair hearing in front the decision-maker (in
this case, the Office of the Ombudsman), which should be in no
way impacted by a public statement. There could be an argument
that in some cases, a trial by media and overwhelming public
opinion can compromise juries and the scales of justice. Such a
concern, we feel, may not be pertinent, in the immediate case,
owing to the presence of a judicially trained decision-maker and
limited press coverage of the incident in question. Therefore,
we completely fail to understand how the public statement
compromised the Hearing Rule, so much so that the only recourse
that the Ombudsman’s office could imagine was to arrive at a
conclusion of his inability to be an impartial adjudicator and
refuse to investigate further. It is worth noting that the
Complainant, a final year law student, has time and again,
emphasised the importance of procedural fairness in her
interactions with the Ombudsman’s office and has sought satisfy
the Evidence Rule, through her testimony and that of a witness,
who—it cannot be emphasised enough—was never approached by the
Ombudsman’s office.<br>
<br>
In conclusion, we also want to state that we found the tone of
the Ombudsman’s Report extremely surprising in that it seemed to
place much more value in the reputational damage to the alleged
perpetrator than the need to comprehensively investigate and
address the sexual harassment complaint of the Complainant. This
balance is, in our opinion highly skewed, and while we do
appreciate the value for confidentiality to the accused, we find
issue with an adjudication process which seems to make this its
priority.<br>
<br>
<font size="4">3. Ombudsman’s role, powers and duties</font><br>
<br>
In our opinion, the role played by the Ombudsman’s office in
this matter leaves a lot to be desired. We state our specific
objections below: <br>
<br>
a. The question of jurisdiction<br>
<br>
It was conveyed to the Complainant as well as clearly stated in
the Ombudsman’s Report that this was a matter in which he had
“jurisdiction as any such allegations are a matter of unfairness
under Bylaw V.” However, a reading of Article V of the ICANN
Bylaws reveals the following:<br>
<br>
“The principal function of the Ombudsman shall be to provide an
independent internal evaluation of complaints by members of the
ICANN community who believe that the ICANN staff, Board or an
ICANN constituent body has treated them unfairly. The Ombudsman
shall serve as an objective advocate for fairness, and shall
seek to evaluate and where possible resolve complaints about
unfair or inappropriate treatment by ICANN staff, the Board, or
ICANN constituent bodies, clarifying the issues and using
conflict resolution tools such as negotiation, facilitation, and
"shuttle diplomacy" to achieve these results.” (emphasis added)<br>
<br>
According to the above clause, only complaints against ICANN
staff, Board and ICANN constituent body fall within the
jurisdiction of the Ombudsman. If this is the case, then we
wonder on what basis did the Ombudsman’s office undertake the
investigation in this matter, let alone, recommending shutting
down of the complaint. We also feel that it would have been the
duty of the Ombudsman’s office to very clearly spell out the
extent of their authority, and the kind of redressal they could
offer to the Complainant, at the very outset. If the Complainant
was made aware of the lack of authority on the Ombudsman’s part,
she could have immediately explored other avenues to pursue her
complaint at ICANN 55 rather than relying on a process which had
ultimately proved fruitless.<br>
<br>
b. The manner in which the complaint was dealt with.<br>
<br>
We find various issues with the manner in which the complaint
was dealt with by the Ombudsman’s office. According to the
Complainant, on March 15th, 2016, she received an email from the
Ombudsman stating that he was inclined to shut down the case
because: a) the alleged perpetrator had not conceded or admitted
to the incident, and b) he had apparently left Marrakech on 10
March, 2016, putting him outside the territorial jurisdiction of
the conference. We believe that the neither of the two factors
mentioned should have any bearing on whether the Ombudsman
chooses to proceed with the investigation. The alleged
perpetrator had been a part of the ICANN community for many
years, and his leaving Marrakech did not in any way curtailed
the Ombudsman’s powers to censure and sanction him. With regard
to the first matter of the alleged perpetrator denying the
incident, we feel that there were a number of things that the
Ombudsman’s office could have by way to trying to reconstruct
the events of March 6, 2016, most importantly seeking an account
from the witness. Another reason for shutting down the case
provided by the Ombudsman was the delay in receiving some
details from the Complainant. The Ombudsman’s office was aware
that the Complainant had been travelling back to India after
ICANN 5 in the past few days, and the haste in wanting to close
the investigations is odd, to say the least. This raises
questions about the seriousness with which the Ombudsman viewed
and pursued the matter.<br>
<br>
Further, no records were kept of the Complainant’s interview
during her meeting with the Ombudsman. According to the
Complainant’s account, she asked for the same and was told the
meeting was being electronically registered. According to her,
she was told that she would be provided a written account of her
complaint but this was not done for as long as 19 days after the
meeting. On March 25, as per the Complainant’s account, she
received a response with the screenshot about her complaint
which contained a single line – “Complaint that there is no
sexual harassment policy for ICANN meetings” However, this did
not capture her individual complaint. We believe that by making
the Complainant repeatedly seek information and failing to
properly address her concerns, the Ombudsman’s office made the
process extremely difficult for the Complainant. The Ombudsman's
office and any authority investigating a sexual harassment
complaint is expected to be sympathetic to the Complainant and
without compromising procedural fairness, make the process as
painless for them. In this respect, the Ombudsman has clearly
failed. The lack of record-keeping also reflects in the
narration of the events in the Ombudsman’s Report which is
inaccurate according to the accounts of both the victim and the
witness, as narrated to us.<br>
<br>
It is worth noting that it was in light of these factors that
the Complainant felt compelled to release a public statement on
this matter on March 19, 2016. Had the Ombudsman’s office acted
more responsibly and not made her question her faith in the
fairness of the process, the Complainant may not have felt the
need to resort to alternate avenues to seek justice.<br>
<br>
c. Factual divergence<br>
<br>
The Ombudsman’s Report says the the Complainant “provided the
name of a witness, but this was only given after the substantial
publicity and after the other party was named.” While this in
itself should not have prevented the Ombudsman from seeking an
account from the witness before adjudicating on the matter, we
are even more concerned about the divergence in facts as
presented by the Ombudsman and the Complainant. The Complainant
in her account is extremely clear about having mentioned the
existence of a witness and her name to the Ombudsman a number of
times during her meetings with the Ombudsman at Marrakech. As
there are no written records of these meetings, we have no way
to ascertain the veracity of the two accounts, but we find this
extremely disturbing<br>
<br>
<font size="4"><br>
4. Clarifications to previous statement</font><br>
<br>
CIS published a Statement on this issue on March 21, 2016.
Following this, a few complaints and disagreements have been
levelled on social media and mailing lists. We think it
important to clarify some important concerns expressed by the
ICANN community.<br>
<br>
a. In our ask for “Gender sensitization” of the ICANN community,
we were merely reflecting the requirement under India’s sexual
harassment law. This was in no way to offend or accuse the
community.<br>
<br>
b. In discussing the Ombudsman’s office and the lack of
diversity, we used the term “white male” to demonstrate how the
office was simply not equipped to deal with such a sensitive
matter. This was not to demonize a particular demographic, but
instead to point out to the vast cultural and gender differences
on understanding invasion of space and discomfort due to sexual
harassment. The stark difference in approach and seriousness of
this issue is evidenced from the course of events that have
taken place since the 6th of March, where the Complainant’s case
of sexual harassment has been reduced to a “lapse of good
manners.”<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
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