Some countries have criminalized certain forms of sexual harassment. Criminal legislation has been directed particularly at quid pro quo harassment and harassment that results in some form of sexual assault. Clearly rape and assault are appropriate subjects of criminal law. (See also Criminal Law in Domestic Violence and Sexual Assault sections)
Criminal laws against sexual harassment should:
- Provide dissuasive penalties for perpetrators;
- Minimize barriers to victims coming forward to report cases;
- Include provision and funding for victim support services;
- Include provisions to require and fund training of police, prosecutors, and judges; and
- Require data collection and regular reporting on cases of sexual harassment.
Workplace Sexual Harassment as a Crime
Some countries have criminalized sexual harassment in the workplace or have legislation that is considered to apply to workplace harassment. There are potential disadvantages to this approach particularly if it is the only available redress for sexual harassment. Criminal cases usually require a higher standard of proof than civil cases. In addition, women may be unwilling to report harassment when it is made a criminal offense, because, although they want the harassment to stop, they do not want to subject the harasser to criminal prosecution. Finally, criminalizing sexual harassment may limit a victim’s ability to recover damages, because an employer usually will not be liable for an employee’s criminal conduct. Despite these disadvantages, criminal prohibitions of sexual harassment may have a deterrent effect on employers and employees who contemplate committing acts of sexual harassment.
Examples: The following excerpts of laws from around the world demonstrate the varied ways in which sexual harassment in the workplace has been criminalized.
The Penal Code in Algeria defines sexual harassment as abusing the authority conferred by one’s function or profession in order to give orders to, threaten, impose constraints or exercise pressure on another person for the purpose of obtaining sexual favors. A person convicted of this offence is subject to imprisonment of two months to one year and a fine of 50,000 to 100,000 dinars. See: UN Secretary-General’s database on violence against women, Law No. 04-15 amending the Penal Code to create the offence of sexual harassment; article 341 bis Criminal Code.
Bahamas: Sexual harassment is a criminal offense covered under the Sexual Violence and Domestic Violence Act (2006). The law prohibits harassment at work and in institutions. The Attorney-General must consent to initiate a case for sexual harassment. Penalties include a term of imprisonment of two-years, a fine of $5000 or both. (See: UN Women Caribbean, Bahamas.)
China: China amended its laws in 2005 to provide additional protection to victims of sexual harassment at work. (See: Law of the People’s Republic of China on the Protection of Rights and Interests of Women, ch. 8) In 2008, a woman in Sichuan Province became the first to win a criminal case related to sexual harassment under the new laws. Her harasser was sentenced to five months in jail. (See: Megan Shank, No Longer Silent, Ms. Magazine, 2009)
The Hungarian Criminal Code (Articles 174, 180,197, 198 of the 4th Act of 1978) prohibits the ‘‘constraint’’ of a person ‘‘with violence or menace to do, not to do, or to endure something’’ where this ‘‘causes a considerable injury of interest.’’ It also prohibits the use of “an expression suitable for impairing honour or commits another act of such a type, a) in connection with the job, performance of public mandate or in connection with the activity of public concern of the injured party, b) before a great publicity.” (See: Sexual Harassment in the Workplace in EU Member States, p.22, 2004)
Kenya’s Sexual Offences Act, passed in 2006, states in sec. 23 that any: person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both.
The Criminal Code in Lithuania states that: A person who, in seeking sexual contact or satisfaction, harasses a person subordinate to him in office or otherwise by vulgar or comparable actions or by making offers or hints shall be considered to have committed a misdemeanour and shall be punished by a fine or by restriction of liberty or by arrest. 2. A person shall be held liable for an act provided for in paragraph 1 of this Article only subject to a complaint filed by the victim or a statement by his authorised representative or at the prosecutor’s request. (See: Criminal Code, Art.152.)
Philippine law provides that sexual harassment is committed in a work-related or employment environment when, among other instances: The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee. The penalty for this crime ranges includes a term of imprisonment of one to six months and/or a fine of 10,000 to 20,000 pesos. (See: Republic Act No. 7877, sec. 7)
Spain: Whoever seeks favours of a sexual nature for him/herself or for a third party in the context of an ongoing or steady occupational or educational relationship or one involving the provision of services and with such behaviour objectively and seriously intimidates or places the victim in a hostile or humiliating situation shall be punished as a perpetrator of sexual harassment and punished with three to five months imprisonment or six to ten months fine. The penalty is harsher if the perpetrator in committing sexual harassment avails him/herself of a higher occupational educational or hierarchical rank or expressly or tacitly avows to jeopardise the victims legitimate expectations within the scope of such relationship in this case the penalty is 5 to 7 months imprisonment or 10 to 14 months fine or when the victim is particularly vulnerable for reasons of age, illness or personal situation in which case the penalty is up to 7 months imprisonment or 10 to 14 months fine or up to 6 months to 1 year imprisonment when in such cases the perpetrator commits the illicit act from a position of superiority as described above. (See: Penal Code, Art. 184 – Const. Act 10/1995 of 23 November)
CASE STUDY – France
France passed a new criminal law on sexual harassment in 2012. Previously, legislation in France provided that “The harassment of another person for the purpose of obtaining favours of a sexual nature is punished by one year’s imprisonment and a fine of € 15,000.” (See: Code Pénal, Art. 222-33) That law was struck down by French courts which declared that it was too vague. For three months, France had no legislation on sexual harassment and cases in the courts languished or were dropped. The new law defines harassment as “imposing on someone, in a repeated way, words or actions that have a sexual connotation” and either “affecting the person’s dignity because of their degrading or humiliating nature” or putting him or her in an “intimidating, hostile or offensive situation.” Punishments increased under the new law; the most serious offences carry a possible three-year prison sentence and a fine of € 30,000. The new law also specifies that a single incident of harassment is punishable, whereas only repeated acts were previously actionable under the law. (See: France passes new sexual harassment law, CBC News, July 31, 2012; France is Expected to Pass a New Harassment Law, The New York Times, July 27, 2012.)