The Faculty of Law and Administrative Sciences The University of Craiova
The evolution of social relations demonstrated the creation of some situations in which those who hold a certain position, a superior rank, tend to take advantage, to go beyond the authority conferred upon them in order to impose to those who are in a position of subordination a certain kind of behavior that is equivalent to the limitation of liberty and of sexual inviolability. This is the reason why the legislature considered that it is necessary to incriminate the facts of sexual harassment in the field of the criminal offences regarding sexual life.
The sexual harassment criminal offence is covered by law and sanctioned by the provisions of Article 203 in the Penal Code and it consists of "the harassment of a person through threatening or coercion, with the purpose of obtaining satisfactions of a sexual nature by a person who abuses the authority or influence bestowed upon him by the position held at the place of work".
The sexual harassment criminal offence was incriminated in Romanian legislature for the first time through Article I point 4 in Statute no. 61/2002. The necessity of penal punishment of such deeds is found in the warranty of a persons' sexual freedom against acts of coercion exercised by persons who take advantage of the authority or influence inherent in the position that is held. Both the denomination and the description of this criminal offence were borrowed from the French Penal Code. In the terms of the French text, the sexual harassment criminal offence consists of the fact of "giving orders, making threats, imposing restrictions or exerting serious pressure in order to get favours of sexual nature by a person who takes advantage of the authority inherent in his/her position."
Another statute that refers to sexual harassment is Statute no. 202/2002 regarding equal opportunities between men and women, which regulates the measures of promotion of the equality of chances, prohibits direct and indirect discrimination according to the sex criterion in the fields of work, education, health, culture and information, establishes means of solving of the complaints regarding discrimination, and appoints public authorities responsible with law enforcement. According to this statute, sexual harassment is a means of discrimination based on sex, and consists of "any form of behaviour linked to sex, about which the one who is guilty knows that it affects the dignity of persons, if this behaviour is rejected and represents the motivation for a decision that affects those persons" (Article 4). Also, Article 10 in the above statute stipulates that the sexual harassment of a person by another person at the place of work or any other place where the former carries on his/her activity is considered to be discrimination based on the sex criterion, too.
In concrete terms, sexual harassment at the place of work can take two forms, according to Article 12:
a) the behaviour that has as a purpose the creation of an atmosphere of intimidation, hostility or discouragement at the place of work for the concerned person;
b) the behaviour that has as a purpose the negative influence over the employed person regarding professional promotion, remuneration or revenues of any nature, or the access to the professional formation and improvement, in the case of this person's refusal to accept an unwanted behaviour, which is linked to sexual life.
The juridical object of the sexual harassment criminal offence consists of the protection of the social relations that regard the freedom of sexual life, as a component part of the freedom of person, against acts of harassment committed by a person that takes advantage of his / her authority or influence conferred upon by the position held at the place of work in order to obtain sexual satisfaction.
As the legislator expressly specified that the offender's abuse of authority develops from the fulfilment of work relationships, the secondary judicial object of the criminal offence consists of the social relations whose formation, progress and development are dependant upon the warranty of the good development of services belonging to authorities or public institutions or other juridical persons, where the offender develops his/her activity, in the relations among these and persons inside or outside these.[1]
As a rule, the sexual harassment criminal offence has not a material object, as the offender's deed is aimed at the freedom of person. When the criminal activity is materialised into threat or moral constraint, there is no material object of the offence. Though, as the legislator didn't exclude physical constraint exercised in order to get sexual satisfaction, the material object of the criminal offence is represented by a person's body in such instances.
- 112/113 -
The active subject is determined, being a physical person, regardless of sex, who holds a position that confers him/her authority or influence upon the victim. From the legal phrasing, one can reach the conclusion that the offender must hold a position of leadership (manager or another position of leadership inside a company, administration, juridical persons or another public authority) or at least a position that is above the victim hierarchically (editor-in-chief, head of a service etc.). If the offender is hierarchically in a position of subordination or equal to the victim, the offence cannot exist, because such relations do not confer to the offender the authority or influence that is necessary to intimidate the victim, and they do not create for the latter the vulnerability that determines the constraint exercised by the offender. That is why we consider that the sphere of accusation is not comprehensive, it does not cover all the situations of committing the criminal offence of sexual harassment at the place of work.
The passive subject of the sexual harassment criminal offence can be only a physical person who is in a position of inferiority related to the offender.
Interest is possible only under the form of instigation or complicity.
The material element consists of an action of harassment that materializes in the threat or constraint of the victim in order to get satisfaction of sexual nature.
Harassment, by definition, supposes the repetition of some acts in order to pester, to disturb someone. That is why, in juridical literature,[2] a conclusion was reached that the term of harassment indicates a habit, it makes reference to the repetition, the reiteration of the accused act, a reason why we are in the presence of a habitual offence.
In another opinion,[3] it was considered that the demand of the repetition of the sexual approach committed through threat or constraint, imposed by law through the term that designated the material element of the objective side of the criminal offence - "harassment" - does not also involve the one of habit, of usage; sexual harassment does not impose the transformation of the repetition of the sexual approach into habit, as the manifestation of this repetition in a sufficient number, which can characterize, define it, is sufficient, but also necessary.
We consider that the motivation which urged the legislator to accuse such a deed can be also found in the situation in which only one act of threat or constraint was realised in order to get sexual satisfaction, its repetition not being necessary. As a matter of fact, only one act of constraint is enough to damage the social relations that are protected by penal law, namely a person's sexual freedom and inviolability.
What the legislator wanted was that, through the group of criminal offences regarding sexual life, to sanction all the deeds that damage a person's sexual freedom, starting even from the acts of preparation in the view of having sexual relations in the future, acts of preparation that are characteristic to the content of the sexual harassment criminal offence. That is why even only one act of constraint in order to get sexual satisfaction can be characterized as a preparation for the future realization of sexual relations and can lead to the existence of the sexual harassment criminal offence.
The action of harassment can be realized verbally (when the passive subject is exposed to some indecent or inopportune jokes), visually (when drawings or allusive images are shown to that person), or physically (direct sexual advances). As a consequence, the material element is realized through actions that damage a person's sexual freedom, using one of the two means expressly stipulated by law: threat or constraint.
With regard to the action of threat, as the text does not exactly specify the content of such an action, one must refer to the accusation of the action of threat. Therefore, threat supposes the offender's action of threatening a person with the realization of a crime or prejudicial deed directed against her, her husband or a close relative, if that deed is able to frighten her.
Constraint refers to any acts that lead to the limitation of the freedom of person, being able to take the shape of moral or physical constraint. As in the text of accusation the general term of "constraint" is used, without making a distinction, the offender's action can consist of a moral, but also of a physical constraint. The difference from the action of rape is represented by what the offender pursues through the realisation of constraint: in the case of rape, the purpose is having sexual relations at the same time or immediately after, whereas in the case of sexual harassment, the purpose is to get sexual satisfaction in the future.[4]
Another essential requirement of the material element is that the action be realized inside a previous professional relation of authority or influence. In the text of accusation, one can notice that a condition is imposed, namely that the offender must take advantage of the authority or influence conferred upon him by the position held at the place of work. It follows that the criminal offence cannot be realized in another frame but the one established by work relations. This thing creates a loophole that is neglected by penal punishment; the accusation of the deed doesn't cover the situations in which sexual harassment is realised outside work relations.
Also, it is essential that the offender's incriminating behaviour should not be accepted or wanted, but
- 113/114 -
explicitly rejected. Therefore, the criminal offence supposes an obvious attitude from the part of the victim of not accepting the offender's such forms of manifestation towards her.
The immediate consequence consists of the creation of a state of danger for the values protected by law.
There must be a connection of causality between the deed and the socially dangerous consequence, a connection of causality that follows from the materiality of the deed itself.
As the offender pursues, through his deed, the precise purpose of getting sexual satisfaction, this criminal offence can be committed only with direct intention and qualified by this purpose. It is not necessary for the offender to achieve his purpose in order for this criminal offence to exist, but it is enough for the offender to act in the view of that purpose. As it has been outlined in juridical literature,[5] the purpose pursued by the offender indicates not only a subjective aspect, but it also has an objective capacity, as it needs to materialize into a clear message for the victim. Only this way is the constitutive content of the criminal offence realised, to the extent to which the victim knows the reason the offender commits threat or constraint for.
The attempt is not punished. The criminal offence is consummated the moment when the state of danger for the social values that are protected by law is produced, that is why only one act of harassment is enough for the consummation of the criminal offence.
Sexual harassment is punished by 3 months to 2 years of imprisonment or by fine.
The penal action is brought ex officio, and the jurisdiction of trial of first instance reverts to the trial court.
Relating to the low social danger of sexual harassment, which is also highlighted in the punitive system which consists of the punishment by imprisonment stipulated alternatively with the punishment by fine, it would have been necessary that the legislator leave the possibility of starting the penal trial to the expression of the will of the prejudiced part through a previous complaint. As a matter of fact, as it was sustained in the doctrine[6], like in the case of the criminal offence of rape in the standard normative means stipulated in Article 197 paragraph 1 of the Penal Code, through the condition of the penal bringing in action as a consequence of the previous complaint of the prejudiced part in the case of sexual harassment, the protection of the victim's interests could be realised, if the victim doesn't want to expose herself to the publicity that is inherent to a penal trial.■
NOTES
[1] H. Diaconescu, Un alt punct de vedere cu privire la structura juridică şi continutul constitutiv al infractiunii de hărtuire sexuală, Revista Dreptul no. 1/2004, p.139.
[2] J. Pradel, M. Danti-Juan, Droit penal special, Ed. Cujas, Paris 2001, p. 481; Gh. Mateut, Reflexii asupra infractiunii de hărtuire sexuală introdusă în Codul penal român prin Legea nr. 61 din ianuarie 2002, in Revista Dreptul no. 7/2002, p. 5.
[3] H. Diaconescu, op. Cit., p. 144.
[4] Idem, p. 146.
[5] V. Cioclei, op. cit., p. 232
[6] H. Diaconescu, op. cit., p. 149.
Lábjegyzetek:
[1] The Author is a Senior Lecturer PhD
Visszaugrás
