Even if it did not neutralize all the mechanisms of repression of the sexual harassment existing in French law , the repeal of the text of the incrimination of sexual harassment – article 222-33 of the criminal code by the constitutional Council (Cons. Constitutional. 4 may 2012, n° 2012-240 QPC) has deprived the victims of an important right, not to say the royal way of recourse they had.
At the time of the legislature, after the government gained control of the question of a redefinition of the offence, it is certainly not worth going back on accepting the european of the concept of sexual harassment.
Of the laws of the very latest
The first finding is that there is not, in Europe, traditions of struggle against sexual harassment. And, in each european country, the said notion has been inserted very recently. In many States, it is only in the 1990s – at that time already, under the encouragement of community law – that the law of sexual harassment has developed .
Then, the community institutions finally came to the party, adopting the directives 2000/78/EC of 27 November 2000, 2002/73/EC of 17 November 2002, and then 2006/54/EC of 5 July 2006, not only to encourage the development of protection against acts of sexual harassment, but to compel the States the adoption of such devices. These guidelines have enabled a deepening of the guarantees offered to victims of sexual harassment within member States, and have contributed to an approximation of laws – even if, in some respects, the result is not quite up to the expectations.
Today, very notable differences can be observed in legislation, with regard to every element of harassment : the material element, the element relative to the effects of the harassment, and finally the element of intent.
Lack of unity regarding the material element of the sexual harassment
The central question on what are the actions characterizing the existence of a sexual harassment, the rights of european do not provide identical responses.
Several States, such as Denmark and France have chosen to take, very faithfully, the postulate according to which the sexual harassment is characterized by “one or more acts of physical, verbal or non-verbal”.
Some States retain a broad definition – and sometimes more vague than that. For example, in Sweden, the material element of the sexual harassment can be found in “any behaviour of a sexual nature”. In Germany, the general act on equal treatment of 14 August 2006, in the same way, reference to any “act sexual” and “incentives to them, (to) touching body of a sexual nature (the) notes to the sexual content of that show, contrary to any wish and prominently displaying pornographic images”. Even if it is not part of the european Union, we can mention the example of Switzerland which admits a definition just as broad. In this country, two laws, which are based on sense restraint in the United States, are acts of sexual harassment “any unwelcome behaviour of a sexual nature” and evoke a non-exhaustive list of behaviours that may be of this qualification : threats, promising advantages, imposing constraints, can exert pressure on a person.
Other States have, conversely, a more restrictive definition and, a priori, to be less protective than those allowed by the community directive. It is as well as the legislation applicable in the United Kingdom or Spain were excluded as the non-verbal behaviour can be an element of sexual harassment.
To discuss the contours of this material element of harassment, it is also to take into account the context of actions. On this point, in many european countries, sexual harassment is not suppressed as in the case that it fits into a professional context.
In Spain, the penal Code specifies that the acts must have occurred within the framework of a work relation, teaching or service delivery is continuous or habitual. This is the same technique that is adopted by the Portuguese labour Code, which indicates that the occurrence of this behavior can take place during the professional training, in access to employment or during the work. Similarly, in Belgium and in the state of the law – in France, in application of article L. 1153-1 of the labour Code and article 6ter of the first title of the general statute of officials, the victim must, in order to benefit from the system of protection provided, to show that the conduct that she has suffered have been in a professional setting.Some States, such as Sweden, have broadened the scope of application of this concept, and hold that “discrimination of any kind” (including the one suffered in a private context and extra-professional) as a result of acts of sexual harassment may be pursued. This broad approach was also that of the French law prior to the repeal of article 222-33 of the penal Code.
A relative unity of the laws concerning the aims and effects of the harassment
In general, the european legislation does not provide that a purpose of these actions has to be identified, for the qualification of sexual harassment will be upheld. Only a few States, including Spain, France and the netherlands, provide that the conduct of the harasser must have intended to obtain sexual favors.
A certain consistency exists, with regard to the effects of these actions.
Drawing on the definition of sexual harassment, in particular posed by the directive 2002/73/EC, the eu member States analyze nearly all of the harassment as a form of discrimination ; it is seen as the company that is violates the dignity of a person, or creates a hostile, intimidating, humiliating, degrading or offensive environment.
On this point, it is interesting to note that some rights distinguish sexual harassment harassment because of sex which is, for example, to the Swedish law, “any conduct in working life that violates the dignity of anyone who is looking for work or is employed and who is in relationship with the sex of it”.
A broad uniformity as regards the intentional element of the sexual harassment and the taking into account of the behavior of the victim
In the 1990s, almost all of the texts relating to sexual harassment in Europe indicated that the behavior of the author should take, on the one hand, an intentional character (the author would, for example, in Belgium or in Germany, have known that his actions were prohibited) and, on the other hand, have been “unwanted” by the victim (this was to show that she had expressed her refusal).
Inspired by the directive 2002/73/EC and directive 2006/54/EC of 5 July 2006 that does not have the intentional character, the various european laws have evolved in kind to make them disappear, in the control of the judge, the taking into account of this mental element.
The behavior of the victim is, as is the case in the definition laid down by the directive, meanwhile, is taken into account by very many laws. However, some legal orders, in particular by Spanish law and Swedish law, have removed the reference to the non-desired behaviour and were thus excluded that the question of consent of the victim is an element of debate.
In France, a draft act in respect of innovative
It may be too early to compare existing legislation with the proposed law on sexual harassment, which has just be adopted by the senate, and which will be discussed next week at the national Assembly.
If we note that the bill does not depart that much from the framework set by the community directives, some aspects of this text surprised.
First, the bill introduced in I of article 222-33 of the penal Code – the text that will define the incrimination of sexual harassment –the principle according to which the actions must be “repeated” to be identified as a participant of a sexual harassment. However, this condition of repetition is not present in the european directives for which a single act can characterize the existence of a sexual harassment. Moreover, none of the european laws did not refer to the need that the acts are repeated. This rule will be, it seems, tempered by the fact that by way of derogation, certain conduct may be considered sexual harassment, even in the absence of repetition. It is, according to the future II of article 222-33 of the penal Code, the cases when the author’s “use of orders, threats, constraints or any other form of severe pressure, in the purpose of real or apparent, to obtain an act of a sexual nature”.
It should be noted then, with satisfaction this time, the bill has maintained the idea of a protection to the widest extent possible for the victim of sexual harassment. In fact, while many laws do not protect the victim of sexual harassment in a professional context, the law which will be applicable would include all the assumptions, including the case of harassment experienced in a private setting.
Finally, the bill proceeds to a grooming-general of the whole of the legal remedies that should ensure an effective protection of victims of sexual harassment. It seeks the harmonization of the provisions contained in the penal Code, the labour Code and in title I of the general statute of civil servants. We very much regret it, that said, the text does not go far enough in defining the mechanisms of protection of victims of sexual harassment (in this regard, the provisions for civil servants remain in the bill, extremely poor).