The Problems of the Reasonable Person in Sexual Harassment Law

Abstract

The author examines and analyses the widely used "reasonable person" doctrine in the context of Hong Kong sexual harassment law from a comparative perspective. He argues that an 'individualised reasonableness standard (be it reasonable man, woman, or victim) is not the best approach to realising the ends of eliminating sexual harassment due to its lack of substantive and consistent doctrinal meaning. He also argues that the root of the problem is a neglect of the unequal power positions between the aggressor and the victim in particular, in light of the subjective mindset of judges in applying the standard. The author is of the view that an overly simplistic view by relying on the reasonable person standard for sex discrimination cases, which involve moral, political, and gender-related judgments, are likely to result in substantive inequality rather than eliminating discrimination.