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👺Protection Measures against Retaliation and Reprisal

The best way to protect the complainant from retaliation or reprisal is to allow complainants to lodge anonymous reports. If this is not possible, in addition to implementing stringent confidentiality and privacy protection, duty-bearers should also respond to all forms of retaliation, disadvantage, or discrimination towards the complainant including termination of employment, harassment, violence or threats of such actions.

Duty-bearers are encouraged to make it clear upfront that complainants will be guaranteed remedies for retaliation and inform perpetrators that any conduct considered to be retaliation will result in further actions. It may also be appropriate to consider further grounds for action in the event the person subjected to the complaint investigation undertakes any action that causes harm in any form to the complainant.

These are some guidelines for responding to allegations of retaliation from whistleblowers:

Dos

  • Take all reports of retaliation and reprisal seriously. Recognize that failure to address retaliation can discourage future reporting and potentially invite further violence on victims.

  • If the complainee (person who is being complained about) learns about the complaint a, the organisation could reach out to reiterate that the organisation will ensure due process, transparency, fairness and non-discrimination, among other human rights principles in addressing the complaint. The organisation could share policy against reprisal or retaliation as well as available support services.

  • Ensure confidentiality as a standard practice, if appropriate anonymize information that would be irrelevant for complaint at hand.

  • Respond quickly and transparently to reported incidents of retaliation and reprisal.

  • Develop processes on how to respond to retaliation. Define retaliatory conduct broadly, encompassing unfavourable actions taken or threatened, as well as favourable actions not taken.

Don'ts

  • Allow the person subjected to investigation to have easy access to complainants (i.e. requiring complainants to continue reporting to a supervisor who harassed them)

  • Ignore issues because they seem minor, or the source or complainant motivation is questionable

  • Assume that no retaliation will happen

  • Promise anonymity if it cannot be guaranteed and provide a list of information that may or must be provided as part of the complaint

  • Assume that people who report retaliation have questionable motivations

  • Assume and rely on the complaints mechanism system as an effective and sufficient deterrent

  • Restrict the definition of retaliatory conduct

Adapted from:

Case Study: “I Was Only Playing With Him”

The following case study details physical abuse of a minor, and graphic physical and sexual abuse resulting in the victim’s death ___________________________________________________________________________________

Nhaveen was the target of bullying in school due to his “effeminate” gender expression. His bullies called him slurs and beat him. His mother tried to intervene, but the perpetrator claimed that he was only “playing with him”. The perpetrator also threatened to beat Nhaveen further if he disclosed the bullying to teachers. It was later revealed that the teachers were aware of the ongoing bullying.

The violence continued even after they had left school. In 2017, Nhaveen and a friend were set upon by their former schoolmates when they were out buying food. The friend managed to escape, but Nhaveen was abducted. His body was found in a field. He had been badly beaten on his head and abdomen with helmets and a rubber hose. He also had burns on his back, and had been sodomised. Nhaveen went into a coma and was declared brain dead. He passed away from his injuries. At the hospital, his mother recognized the perpetrator responsible for this death as the same person who had bullied Nhaveen in school.

Key Takeaways

  • Nhaveen was violently targeted due to his gender expression, and perceived SOGI. Meanwhile, the friend was targeted because of his association with and for defending Nhaveen.

  • Bullying based on SOGIESC is normalized and at times not taken seriously, especially in a gendered society where gender binary rules are strictly enforced. In such a context, policing or correcting a person’s gender expression is not just normal, but even encouraged because LGBTQIA+ people are perceived as wrong and need to be corrected. This is evidenced by how the bullying was initially described as “playful”. The inaction could have contributed or enabled further violence

  • The teachers were not equipped with skills and gender sensitivity to recognize the seriousness of the incidents.

What does this have to do with remedies?

  • Complaint mechanisms can play a crucial role in stopping human rights violations from escalating, and it is important that accessibility is extended to LGBTQIA+ children in schools.

  • Complaint mechanisms must be advertised in schools. In order to encourage children to submit complaints, reduce formalities required to file a complaint, and adapt communication to the child’s age, stage of development, and individual situation.

  • More information about how to create a child-friendly complaint mechanism can be found at Child-Friendly Complaint Mechanisms by UNICEF.

Sources

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