Sexual Harassment in the Workplace
Sexual Harassment
The history of this kind of crime is called sexual solicitation by a public official.
Basic Type
Article 184: Consists of applying, i.e., requesting or claiming, orally or in writing, sexual favors. If the favors are obtained, i.e., passing from words to deeds, the appropriate type of abuse will apply. The legal concept of harassment thus presents a somewhat more restricted definition than the common or colloquial one, which also includes cases where the individual, without seeking any sexual behavior, is subjected to a climate of harassment, with repeated allusions to erotic conversations, jokes, etc., or consistent actions of mild, surprising bodily contact. This is called environmental harassment, which may only fit the framework of abuse or unjust vexation.
The sexual favors that are claimed can be of any nature, i.e., consisting of both sexual intercourse or insertion of objects as well as other milder behaviors. In the latter case, in accordance with previously held views on assault and abuse, it is not necessary that the acts involve bodily contact between the subjects. Also, the recipient may be both the applicant himself or a third party.
This is a special crime where individuals, who can be both male and female, are active in the same surroundings, as the solicitation of favors must be within the scope of employment, teaching, or services. As we understand it, the employment relationship covers the paid work sector, while other work belonging to the civil or administrative sectors, as well as unpaid work, fall under the concept of service delivery. In any case, it requires that the relationship be continuous and regular, i.e., that it has a certain permanence, thus excluding sporadic links. It must also be clear that the perpetrator should not be in a relationship of superiority, or at least should not avail themselves of it because, if so, the type provided for in compounded Art. 184.2 would apply.
Harassment is configured as a result crime because it requires that requests for sexual favors cause the victim to experience an objectively and seriously intimidating, hostile, or humiliating situation. This means that harassment should place the individual in a situation of degradation or humiliation, in a climate of adversity, and even fear, that does not allow them to function in the environment they share with the active subject with the necessary freedom and peace.
Qualified Type
- Harassment with Prevalence: A situation exists between the active and passive subjects that places the first in a relationship of superiority, i.e., in a position of advantage, which they must also rely on. However, any position of power may not lead to the implementation of this type of harassment, but must occur exclusively in employment, educational, or hierarchical settings. We also include cases of harassment that occur at the time of hiring the worker. However, it is very doubtful that harassment occurring in the home or in a situation of economic dependence would have a place here, except when a broad interpretation of hierarchy is performed.
- Sexual Blackmail: The application must be accompanied by the advertisement of a negative consequence for the individual in their legitimate expectations if they deny the claims. So, in this case, unlike the above, it is improper to consider it a special crime of conditional threats. The announcement of the negative consequence must be serious and credible, like any threat. The victim must also perceive the perpetrator as being in a position to carry out the threat. This can happen not only when the perpetrator holds a position of hierarchy or superiority but also when they can exert the necessary pressure or influence. Otherwise, the announcement of the negative consequence can be either express or implicit, but it must necessarily be directed at the individual.
As for the content of the negative consequence, it must be to deny the individual the expectations they may have in the field of labor relations, teaching, or hierarchy. Expectations must be understood as the achievement of those benefits, improvements, or interests resulting from the relationship in question. Thus, in the teaching field, the expectation of a student is to pass the course. In the workplace, the attainment or maintenance of the job, a salary increase, or a change of destination, among others, may also have this character. Legitimate expectations are excluded or are not illegal due to the scope of the relationship, but this does not mean that the individual should be entitled to them or that their granting should be adjusted to regular channels. This would not only greatly restrict the scope of the rule but would even cause it to lose its meaning. Moreover, the announcement of a reward will generally be positive or atypical, but there is no denying that in many cases, the offer of a positive reward is just a verbal equivalent of a tacitly announced negative consequence. Thus, for example, it could constitute harassment to both threaten to suspend an employee and to offer a promotion in exchange for sexual favors.
Common Questions
As an offense of result, the crime is completed when, in any of the three scenarios, it causes the victim to experience an objectively and seriously intimidating, hostile, or humiliating situation. It should also be attempted. In the base rate, this will occur with the application of sexual behavior, and in the aggravated form, it will also require the advantage of the situation of superiority or the announcement of the causation of harm.
As for authorship, it is perfectly possible to commit the crime by creating or exploiting an instrument, through error, and through induction and complicity. If sexual favors are requested for a third party with their consent, the solicitor shall be regarded as a co-author.
One of the major problems of interpretation posed by the crime of harassment is related to jurisdictional conflicts. As for the laws, it should be noted that the base rate is related to specialty with respect to crimes against the person, due to the outcome of humiliation of the victim. The aggravated form alleged in Art. 184.2, which requires the announcement of the causation of harm, is a crime of conditional threats. However, in all cases, the subsidiary application of Art. 184 in relation to the types in Art. 443 and 444 on solicitation by a public official applies. Major difficulties arise, however, when the individual agrees to the required sex. In the event that the solicitation has caused the victim a serious bullying situation, provided that its definition is practically impossible with attempted sexual assault, we face a completed offense of sexual harassment that would absorb the solicitation. Different is the case of abuse of authority, in which case the prevalence type of sexual abuse applies, which, if occurring in addition to the threat of harm, would lead to a medial conflict with the type of harassment.
Finally, Art. 184.3 provides for an aggravating circumstance that increases the penalty in both the base rate and the aggravated form when the victim is particularly vulnerable because of their age, illness, or similar situation (Art. 180.3).