There are few professions not been impacted by the #MeToo movement which swept the globe following the exposure of Harvey Weinstein’s alleged sexual harassment and assault. Law is no exception; in late 2018, Professor Jo Delahunty QC stated in a public lecture that there is widespread complacency concerning inappropriate sexual behaviour and bullying in Chambers. Professor Delahunty QC said she once went away to work on a case with a lawyer 30 years her senior, only to discover he had reserved a double room in a hotel. According to The Guardian:
“She had to calculate immediately, Delahunty recalled, whether her professional prospects would be damaged if she objected. She told the receptionist there had been a mistake and insisted on separate rooms.”
Despite this, the senior lawyer still barged into her room every morning while she was still in her underwear.
The financial and technology sectors are also seeing more women speak up about sexual harassment and sexual assault.
The effect of the #MeToo movement on male and female workplace relations
The #MeToo movement has been positive – empowering women to speak out if they faced harassment or assault. However, Leanne Atwater, a management professor at the University of Houston, told the Harvard Business Review that she and her colleagues expected some fallout.
They were right. A subsequent study, headed by Professor Atwater, found that although 74% of women said they thought they would be more willing now to speak out against harassment, and 77% of men anticipated being more careful about potentially inappropriate behaviour, 19% of men said they were reluctant to hire attractive women, 21% said they were unwilling to recruit women for jobs involving close interpersonal interactions with men, and 27% said they avoided one-on-one meetings with female colleagues.
Such caution has been termed the “Mike Pence rule”, in reference to the American Vice-Presidents refusal to dine alone with a woman or attend an event where both women and alcohol is present without his wife.
Is sexual harassment a criminal offence in England and Wales?
Sexual harassment is not an offence in its own right under UK law. However, rape and sexual assault are. To commit rape, the perpetrator must penetrate the victim’s vagina, mouth, or anus with his penis.
Sexual assault occurs when:
- someone forces or coerces someone to engage in unwanted sexual activity against their will, or
- when a man or a woman touches another person sexually without their consent. Touching can be done with any part of the body or with an object.
To gain a conviction for rape or sexual assault, the Prosecution has to prove beyond reasonable doubt that the complainant did not consent, and the Defendant did not have a reasonable belief that consent was given.
Under section 74 of the Sexual Offences Act 2003, to consent to sexual activity, a person must do so by choice and have the freedom and capacity to make that choice. For example, if a person is incapacitated after consuming alcohol or drugs, they cannot consent.
Neither a boy nor a girl under 16 years can consent to sexual activity.
Other behaviours which can be used to sexually harass a person are crimes under UK law. For example, exposing your private parts to somebody else in public is a crime under section 66 of the Sexual Offences Act 2003. And the Protection from Harassment Act 1997 makes it an offence to engage in a course of conduct you know, or ought to know, amounts to harassment of another person.
Sexual harassment laws in other countries
According to a 2017 CNN report, 35% of the world’s females have experienced physical or sexual violence. And for sexual harassment, the figures are shocking – in Egypt, 99% of woman have experienced sexual harassment, in the US, a quarter of women have been subjected to street harassment, and in the UK 64% of woman have been sexually harassed.
Despite these statistics, few countries have made sexual harassment a crime. Sexual harassment is illegal in Peru, Belgium, and Portugal and cat-calling and unwanted advances are included in the scope of the offence. France also has an anti-cat-calling law, allowing police to issue on the spot fines for degrading comments and offensive sexist or sexual behaviour.
The difficulty with criminalising sexually harassing behaviours in the workplace is in deciding what should be deemed offensive, especially in multi-cultural environments. For example, some women of Muslim faith avoid shaking hands. If a colleague or client on repeated occasions insists on thrusting their hand out to shake the hand of a woman they know does not want to reciprocate – would this be classed as harassment? Similarly, the decision in Raj v Capita Business Services Ltd and anor raised questions about whether certain conduct was of a sexual nature or related to sex for the purposes of discrimination. In this case, a male employee brought a harassment claim against a female employee who repeatedly massaged his shoulders. The Employment Appeal Tribunal dismissed the claim on the grounds the behaviour was not of a sexual nature (or related to the complainant’s sex). However, it would not be unreasonable to conclude that the result may have differed had the complainant been female and the massager male.
Such inconsistencies in the interpretation of an action are dangerous if the Defendant is facing a criminal record and/or custodial sentence.
The UK government is currently considering submissions on sexual harassment in the workplace. This includes whether laws needed to be strengthened and clarified to help employers protect their staff. However, the consultation paper does not call for opinions on the criminalisation of sexual harassment.
The #MeToo movement has pressured governments, local authorities, and employers around the world to take sexual harassment seriously. However, given the problems already facing the Crown Prosecution Service regarding disclosure and rape trials, extending the gambit of sexual harassment offences outside of the current legislation and definitions risks opening the door to further miscarriages of justice.